DCT
2:21-cv-09327
Therabody Inc v. DJO LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Therabody, Inc. (Delaware)
- Defendant: DJO, LLC, dba COMPEX (Delaware)
- Plaintiff’s Counsel: Jeffer Mangels Butler & Mitchell LLP
- Case Identification: 2:21-cv-09327, C.D. Cal., 04/05/2022
- Venue Allegations: Plaintiff alleges venue is proper in the Central District of California because Defendant derives substantial revenue from sales of the accused products within the district through e-commerce websites, including its own and Amazon.com, and because a substantial part of the events giving rise to the claims occurred in the district.
- Core Dispute: Plaintiff alleges that Defendant’s Compex Fixx line of percussive massage guns infringes two utility patents related to a multi-grip triangular handle design, and that Defendant’s massage head attachments infringe five design patents.
- Technical Context: The technology relates to handheld electronic percussive massage devices used for muscle therapy, focusing on ergonomic designs that allow users to self-administer treatment to various parts of the body.
- Key Procedural History: The operative pleading is a First Amended Complaint, indicating that an original complaint was previously filed. The complaint alleges Defendant had notice of infringement at least as of the filing of that original complaint.
Case Timeline
| Date | Event |
|---|---|
| 2017-07-11 | Earliest Priority Date for ’261, ’640, ’500 Patents |
| 2018-02-13 | Earliest Priority Date for ’182, ’680 Patents |
| 2018-12-26 | Earliest Priority Date for ’565, ’064 Patents |
| 2019-04-09 | U.S. Patent No. D845,500 Issues |
| 2019-05-21 | U.S. Patent No. D849,261 Issues |
| 2019-06-04 | U.S. Patent No. D850,640 Issues |
| 2019-09-02 | U.S. Patent No. D861,182 Issues |
| 2019-09-10 | U.S. Patent No. D859,680 Issues |
| 2020-12-08 | U.S. Patent No. 10,857,064 Issues |
| 2021-02-16 | U.S. Patent No. 10,918,565 Issues |
| 2022-04-05 | First Amended Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,918,565 - "Percussive Massage Device and Method of Use" (issued Feb. 16, 2021)
The Invention Explained
- Problem Addressed: The patent’s background section notes that conventional massage devices often provide ineffective, superficial massages and are difficult for users to apply to their own bodies effectively (U.S. Patent No. 10,918,565, col. 1:20-24).
- The Patented Solution: The invention is a percussive massage device featuring a distinctive housing with three handle portions—first, second, and third—that cooperate to define a handle opening. This triangular configuration is designed to allow a user to grasp any of the handles independently, facilitating access to different body parts from various angles for more effective self-massage (’565 Patent, Abstract; col. 15:20-31).
- Technical Importance: The multi-grip, triangular ergonomic design represented an improvement in usability for handheld massagers, particularly for self-application on hard-to-reach areas like the back. (’565 Patent, col. 15:26-31).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 1 (Compl. ¶72).
- Essential elements of claim 1 include:
- A housing with first, second, and third handle portions and a head portion, which together define a handle opening.
- The first handle portion defines a first axis, the second a second axis, and the third a third axis.
- These three axes cooperate to form a triangle.
- An electrical source, a motor in the head portion, a switch, and a reciprocating push rod assembly.
- The complaint does not explicitly reserve the right to assert dependent claims for this patent.
U.S. Patent No. 10,857,064 - "Percussive Therapy Device" (issued Dec. 8, 2020)
The Invention Explained
- Problem Addressed: The patent background identifies a need for improved massage devices, noting that percussive devices are often used ineffectively and could benefit from features that enable more effective massage or recovery protocols (’064 Patent, col. 1:29-34).
- The Patented Solution: The invention claims both a device and a method of its use, centered on a specific ergonomic handle design. The device features three handle portions in a triangular arrangement, with each handle being "long enough" to allow a user's fingers to extend through the handle opening and contact an interior edge, thereby ensuring a secure and versatile grip. The claimed method involves grasping different handles to massage different body parts (’064 Patent, col. 5:10-31; Figs. 3-5).
- Technical Importance: This specific handle geometry, defined by handle length relative to a user's grasp, aims to enhance user control and stability, allowing for the application of consistent pressure during percussive therapy from multiple angles. (’064 Patent, col. 5:10-15).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 19 (Compl. ¶85).
- Essential elements of method claim 19 include:
- Obtaining a percussive massage device with a housing having first, second, and third handle portions defining a handle opening and specific interior edges and lengths.
- The length of each handle portion must be long enough for at least a portion of three fingers to extend through the opening and contact the respective interior edge when grasped.
- Activating the motor.
- Grasping the first handle portion and massaging a first body part.
- Reorienting the device, grasping the second handle portion, and massaging the first or a second body part.
- Reorienting the device, grasping the third handle portion, and massaging the first, second, or a third body part.
- The complaint does not explicitly reserve the right to assert dependent claims for this patent.
Multi-Patent Capsule: U.S. Design Patent No. D849,261
- Patent Identification: D849,261, "Massage Element," issued May 21, 2019.
- Technology Synopsis: The patent claims the ornamental design for a massage head attachment for a percussive therapy device. The design features a generally cone-shaped body with a rounded tip and a circular base for attachment to the device.
- Asserted Claims: The single claim for the ornamental design as shown in the drawings.
- Accused Features: The "First Infringing Attachment" for the Compex Fixx devices, which is alleged to be "cone shaped," have the "same relative dimensions," a "rounded tip," and a "generally circular cavity centered in the base" (Compl. ¶¶45, 100). The complaint includes a side-by-side visual comparison of the patented design and the accused product (Compl. ¶100).
Multi-Patent Capsule: U.S. Design Patent No. D861,182
- Patent Identification: D861,182, "Massage Element," issued September 2, 2019.
- Technology Synopsis: The patent claims the ornamental design for a massage head attachment. The design is substantially similar to the '261 Patent, featuring a cone shape with a rounded tip and a circular base.
- Asserted Claims: The single claim for the ornamental design as shown in the drawings.
- Accused Features: The "First Infringing Attachment," which is alleged to have the same or very similar features as the design patented in the ’182 Patent, including its cone shape, relative dimensions, and rounded tip (Compl. ¶¶45, 111). A side-by-side visual comparison is provided in the complaint (Compl. ¶111).
Multi-Patent Capsule: U.S. Design Patent No. D850,640
- Patent Identification: D850,640, "Massage Element," issued June 4, 2019.
- Technology Synopsis: The patent claims the ornamental design for a massage head attachment. The design is for a spherically shaped attachment head with a circular base.
- Asserted Claims: The single claim for the ornamental design as shown in the drawings.
- Accused Features: The "Second and Third Infringing Attachments," which are alleged to be "spherically shaped" and have a base with a "circular design surrounding a center cavity," contributing to an overall appearance that is substantially the same as the patented design (Compl. ¶¶45, 122).
Multi-Patent Capsule: U.S. Design Patent No. D859,680
- Patent Identification: D859,680, "Massage Element," issued September 10, 2019.
- Technology Synopsis: The patent claims the ornamental design for a massage head attachment. The design is substantially similar to the '640 Patent, showing a spherically shaped attachment with a circular base.
- Asserted Claims: The single claim for the ornamental design as shown in the drawings.
- Accused Features: The "Second and Third Infringing Attachments," which are alleged to be spherically shaped with a circular base design, making them substantially the same in appearance as the patented design (Compl. ¶¶45, 133). The complaint alleges the features of the accused attachments are the same or similar to those patented in the '640 patent, but makes these allegations under the cause of action for the '680 patent (Compl. ¶133).
Multi-Patent Capsule: U.S. Design Patent No. D845,500
- Patent Identification: D845,500, "Massage Element," issued April 9, 2019.
- Technology Synopsis: The patent claims the ornamental design for a massage head attachment. The design features a wide, rounded contact surface with a tapered body and a circular base, resembling a wedge shape.
- Asserted Claims: The single claim for the ornamental design as shown in the drawings.
- Accused Features: The "Fourth Infringing Attachment," which is alleged to have a larger contact side than attachment side, similar proportions, a rounded contact surface, and a centered circular cavity, making its overall appearance substantially the same as the patented design (Compl. ¶¶45, 144).
III. The Accused Instrumentality
- Product Identification: The accused instrumentalities are the "Compex Fixx 2.0" and "Compex Fixx 1.0" percussive massage devices, along with four different massage head attachments designated as the "First," "Second," "Third," and "Fourth Infringing Attachments" (Compl. ¶45).
- Functionality and Market Context: The accused devices are handheld, electronic percussive massage guns that, like Plaintiff's products, feature a multi-grip handle design intended for therapeutic self-application (Compl. ¶¶46, 73). The complaint alleges that Defendant began manufacturing and selling these devices to compete directly with Therabody in the percussive massage device industry (Compl. ¶45). The complaint provides an image showing the two accused massage gun models (Compl. ¶46).
IV. Analysis of Infringement Allegations
’565 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a housing, wherein the housing includes first, second and third handle portions that cooperate to at least partially define a handle opening... | The accused devices include a housing with first, second, and third handle portions that define a handle opening. | ¶74 | col. 2:38-41 |
| wherein the first handle portion defines a first axis, the second handle portion defines a second axis and the third handle portion defines a third axis, and wherein the first, second and third axes are co-planar. | The accused devices' first, second, and third handle portions are alleged to define first, second, and third co-planar axes, respectively. An annotated image in the complaint illustrates these alleged axes on the accused products. | ¶75 | col. 15:35-39 |
| wherein the first handle portion is generally straight, wherein the second handle portion is generally straight, and wherein the third handle portion is generally straight... | The accused devices' first, second, and third handle portions are alleged to be "generally straight." | ¶76 | col. 2:44-46 |
| an electrical source, a motor positioned in the housing, a switch for activating the motor, and a push rod assembly operatively connected to the motor and configured to reciprocate... | The accused devices are percussive massage devices that necessarily include these internal functional components to operate as intended. | ¶77 | col. 2:34-38 |
- Identified Points of Contention:
- Scope Questions: A central dispute may concern the claim term "cooperate to form a triangle." While the accused devices feature a multi-grip handle, its shape is not identical to the embodiments in the ’565 Patent. The analysis will question whether the "axes" defined by the accused device's handle portions can be construed to form the "triangle" required by the claim. The annotated image provided by the Plaintiff shows its interpretation of these axes on the accused products (Compl. ¶75).
- Technical Questions: The meaning of "generally straight" as applied to the handle portions may be contested. The accused products feature curved transitions between handle segments, raising the question of whether these segments meet the "generally straight" limitation as understood in the context of the patent.
’064 Patent Infringement Allegations
| Claim Element (from Independent Claim 19) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| obtaining the percussive massage device, wherein the percussive massage device includes a housing that includes first, second and third handle portions that cooperate to at least partially define a handle opening... | Defendant makes, uses, and sells the accused Compex Fixx devices, which have a housing with three handle portions and a handle opening. | ¶86 | col. 5:5-10 |
| wherein the first handle portion includes a first handle portion interior edge and defines a first handle portion length...is long enough that when a user grasps the first handle portion with a hand at least a portion of three fingers extend through the handle opening and contact the first handle portion interior edge... | The complaint alleges the handle portions of the accused devices are long enough to meet this dimensional and functional limitation for all three handles. An annotated diagram illustrates the alleged interior edges and axes of the accused products. | ¶87 | col. 5:10-18 |
| activating the motor using the switch... | Defendant allegedly practices the method, which includes activating the motor. | ¶89 | col. 5:51-52 |
| grasping the first handle portion...massaging a first body part, reorienting the percussive massage device, grasping the second handle portion...massaging...and reorienting...grasping the third handle portion...massaging... | The complaint alleges that "Defendants further practice the method of using Infringing Devices," including the sequential steps of grasping each of the three handle portions to massage body parts. | ¶89 | col. 5:52-64 |
- Identified Points of Contention:
- Scope Questions: The interpretation of the dimensional limitation "long enough that...at least a portion of three fingers extend through the handle opening and contact the...interior edge" will be critical. This functional language may be a point of dispute, as its application to the accused device's specific geometry is a question of fact and construction.
- Evidentiary Questions: As claim 19 is a method claim, Plaintiff must prove that the claimed sequence of steps (grasping handle 1, then 2, then 3) is actually performed. The complaint alleges direct infringement by Defendant and inducement of infringement by users (Compl. ¶¶89, 91), raising the evidentiary question of how Plaintiff will demonstrate that these specific, sequential re-orienting and re-grasping steps are taken in practice.
V. Key Claim Terms for Construction
For the ’565 Patent (Claim 1)
- The Term: "the first, second and third axes cooperate to form a triangle"
- Context and Importance: This term defines the core geometric structure of the patented handle design. The infringement case for the ’565 Patent hinges on whether the handle structure of the accused Compex Fixx devices, which is visually similar but not identical, falls within the scope of this geometric limitation.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification emphasizes the functional benefit of the three-handle design, stating it "allows a person...to use the device on different body parts and from different angles" (’565 Patent, col. 15:26-31). This focus on function over a precise geometric shape could support a broader construction that covers other three-handled ergonomic designs.
- Evidence for a Narrower Interpretation: The figures, particularly Figure 14, depict a clear and distinct triangular shape formed by the handle portions. A defendant may argue that the term "triangle" should be limited to the geometric forms explicitly disclosed in the embodiments.
For the ’064 Patent (Claim 19)
- The Term: "long enough that when a user grasps the...handle portion...at least a portion of three fingers extend through the handle opening and contact the...interior edge"
- Context and Importance: This phrase sets a functional and dimensional requirement for the handle portions. Infringement depends on whether the accused device's handles are dimensioned to allow a user's hand to interact with them in this specific way. Practitioners may focus on this term because it links a physical dimension ("long enough") to a specific user action ("three fingers extend...and contact"), creating a potential ambiguity that is central to the infringement analysis.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent states that the handle portions are "long enough so that a person with a large hand can comfortably grasp each handle portion" (’064 Patent, col. 15:40-43), suggesting the term relates to general comfort and usability for a range of hand sizes, rather than a precise measurement.
- Evidence for a Narrower Interpretation: Figure 3 of the patent depicts a user's hand grasping the first handle portion in a specific manner. A defendant could argue this embodiment illustrates the intended meaning of "long enough" and that the accused device's handles, if shorter or differently angled, do not permit this exact interaction.
VI. Other Allegations
- Indirect Infringement: The complaint alleges both induced and contributory infringement for the ’565 and ’064 patents. Inducement is based on allegations that Defendant markets, promotes, and offers the devices for use with the intent that customers will infringe (Compl. ¶¶78, 91). Contributory infringement is based on allegations that the accused devices are not staple articles of commerce and are especially made for an infringing use (Compl. ¶¶79, 92). Similar allegations are made for all asserted design patents (e.g., Compl. ¶¶103-104).
- Willful Infringement: Willfulness is alleged based on Defendant’s continued infringement after receiving notice. This notice is alleged to have been provided through both the filing of the original complaint and Plaintiff's patent marking on its website (Compl. ¶¶82, 97).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of geometric scope: Can the term "triangle," defined in the ’565 patent by the "axes" of three "generally straight" handle portions, be construed to read on the more rounded, organically-shaped handle design of the accused Compex Fixx devices?
- A key question of claim construction and fact for the ’064 patent will be whether the accused devices' handles satisfy the functional limitation of being "long enough" for a user's fingers to "extend through the handle opening and contact the...interior edge," an issue that may require expert testimony and physical demonstration.
- For the five asserted design patents, the central question will be the application of the ordinary observer test: Given the context of other massage head attachments in the market, would an ordinary observer be deceived into purchasing Defendant's accused attachments believing them to be Plaintiff's patented designs?