DCT
2:25-cv-11681
Intake Breathing Technology LLC v. Kierdorf & Reich GBR
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Intake Breathing Technology LLC (California)
- Defendant: Kierdorf & Reich GbR, d/b/a Napify (Germany)
- Plaintiff’s Counsel: Quarles & Brady LLP
- Case Identification: 2:25-cv-11681, C.D. Cal., 12/09/2025
- Venue Allegations: Plaintiff alleges venue is proper because Defendant is a foreign company and may be sued in any judicial district.
- Core Dispute: Plaintiff alleges that Defendant’s nasal adhesive strips infringe a patent related to disposable nasal elements designed to interact with an external magnet to dilate a user's nasal passages.
- Technical Context: The technology relates to nasal dilator systems, which aim to improve airflow for athletes and others by mechanically opening the nostrils, with this specific patent family addressing systems that use magnetic attraction.
- Key Procedural History: The complaint states that prior to filing suit, Plaintiff engaged in anti-infringement efforts, including submitting takedown requests to e-commerce platforms concerning infringing products. Plaintiff alleges it provided notice of its patent rights to Defendant via Amazon at least one month before filing the complaint.
Case Timeline
| Date | Event |
|---|---|
| 2013-12-20 | U.S. Patent No. 9,510,969 Priority Date |
| 2016-12-06 | U.S. Patent No. 9,510,969 Issues |
| 2025-11-06 | Plaintiff provides notice to Defendant via Amazon |
| 2025-12-09 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,510,969 - “Nasal Element for a Breathing System”
- Patent Identification: U.S. Patent No. 9,510,969, “Nasal Element for a Breathing System,” issued December 6, 2016 (the “’969 Patent”).
The Invention Explained
- Problem Addressed: The patent’s background section describes how eyewear, particularly athletic goggles, often fits over the wearer’s nose and can compress the foam liner against the nasal passages, inhibiting the ability to breathe through the nose (’969 Patent, col. 1:47-56).
- The Patented Solution: The invention is a disposable apparatus, typically an adhesive patch, designed to be placed on the user’s nose (’969 Patent, col. 7:54-58). This patch contains a “metallic element” encapsulated within its layers (’969 Patent, col. 7:59-62). It is designed to work as part of a system where a corresponding magnet is placed on the eyewear. When the eyewear is worn, the magnet attracts the metallic element in the patch, pulling the skin of the nose outward and thereby dilating the nasal passages to improve airflow (’969 Patent, Abstract; col. 2:1-12).
- Technical Importance: The claimed solution provides a method to counteract the common problem of nasal compression from athletic eyewear, which is significant for athletes who rely on optimized nasal breathing for performance (Compl. ¶11-12).
Key Claims at a Glance
- The complaint asserts infringement of one or more claims, referencing independent claim 1 as representative (Compl. ¶32-33).
- The essential elements of independent claim 1 include:
- A disposable apparatus with a flexible base layer having an adhesive on one side for attachment to the nose.
- A metallic element coupled to the base layer.
- An outer layer that at least partially covers the metallic element.
- The metallic element is configured to interact with an external magnet to impart a dilating force on the nose.
- A portion of the flexible base layer extends beyond the metallic element to form a flexible peripheral portion.
- The apparatus is configured to be selectively transitional between an active state (magnetically interacting) and an inactive state (magnetically decoupled).
- The complaint does not explicitly reserve the right to assert dependent claims.
III. The Accused Instrumentality
Product Identification
- Defendant’s “Nasal Strips Refill Pack,” sold on Amazon.com under the seller alias “Napify” and ASIN B0FRGGSBSZ (the “Accused Products”) (Compl. ¶21, ¶32).
Functionality and Market Context
- The complaint alleges the Accused Products are nasal adhesives that imitate Plaintiff's own commercial products, which embody the ’969 Patent (Compl. ¶24). An image included in the complaint shows the packaging for Defendant’s "REFILL SET," containing "64 Patches" (Compl. p.7). The complaint alleges these adhesives are “configured to interact with a magnetic nasal band” (Compl. ¶25).
- Plaintiff alleges that Defendant is one of many “opportunistic sellers” who have entered the market with infringing products to trade on the success and demand for Plaintiff’s patented technology, which has allegedly gained popularity through use by professional athletes and social media trends (Compl. ¶14, ¶22).
IV. Analysis of Infringement Allegations
The complaint alleges that a claim chart comparing claim 1 of the ’969 Patent to the Accused Products is attached as Exhibit 3; this exhibit was not provided with the complaint document (Compl. ¶33). The following summary is constructed from the complaint's narrative allegations and visual evidence.
’969 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A disposable apparatus attachable to a nose of a wearer... a flexible base layer... having an adhesive disposed thereon | The Accused Products are sold as disposable adhesive “Patches” or “nasal adhesives” intended for application to the nose. The packaging visual suggests a single-use product (Compl. p.7). | ¶24, ¶32 | col. 7:54-58 |
| a metallic element coupled to the second surface of the base layer and being configured to interact with the magnet... | The complaint alleges the Accused Products are “configured to interact with a magnetic nasal band,” which suggests they contain a magnetically attractable material, consistent with the patent’s description of a “metallic element.” | ¶25 | col. 7:59-62 |
| the interaction between the metallic element and the magnet imparting a dilating force on the nose of the wearer... | This function is central to the ’969 Patent. The complaint alleges the Accused Products infringe the patent by mimicking Plaintiff’s products, which are designed to dilate the nasal passage through magnetic interaction (Compl. ¶9-10, ¶24). | ¶24, ¶33 | col. 8:52-56 |
| an outer layer coupled to the base layer and extending over the metallic element to at least partially cover the metallic element | Plaintiff’s own product, which Defendant allegedly mimics, features this layered construction (Compl. p.3, image). The patent describes encapsulating the metallic element between a base layer and an outer layer. | ¶24 | col. 7:58-62 |
| at least a portion of the flexible base layer extending radially outward beyond the metallic element to define a flexible peripheral portion | The visual representation of Plaintiff's product, which the Accused Products allegedly mimic, shows a flexible adhesive area surrounding a central functional component (Compl. p.3, image). This structure is explicitly claimed. | ¶24 | col. 10:29-32 |
Identified Points of Contention
- Scope Questions: The case may present a dispute over the meaning of "metallic element." The question may arise whether the material in the Accused Product meets the legal definition of this term as used in the patent, which the specification describes as a "magnetically attractable element... such as a ferrous material" (’969 Patent, col. 7:60-61).
- Technical Questions: A central factual question will be whether the Accused Products actually contain a metallic or magnetically attractable element. The complaint’s allegations regarding the product’s configuration to “interact with a magnetic nasal band” are made on information and belief and will require evidentiary support through discovery and product analysis (Compl. ¶25).
V. Key Claim Terms for Construction
The Term: "metallic element"
Context and Importance: This term defines the core component of the disposable apparatus that enables the claimed magnetic interaction. The infringement analysis will depend entirely on whether the Accused Products contain a component that falls within the scope of this term.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: Parties favoring a broader scope may point to the plain and ordinary meaning of "metallic" and argue that the claim does not limit the material to being ferrous or magnetic itself, only that it is "metallic" and "configured to interact with the magnet."
- Evidence for a Narrower Interpretation: Parties favoring a narrower scope may cite the specification’s only specific example, which describes the component as a "magnetically attractable element 59, such as a ferrous material" (’969 Patent, col. 7:60-61). This could support an argument that the term should be limited to materials that are magnetically attractable, like iron.
The Term: "imparting a dilating force on the nose of the wearer"
Context and Importance: This is a functional limitation that describes the result of the interaction between the claimed "metallic element" and an external magnet. Practitioners may focus on this term because infringement requires not just the presence of certain components, but that they operate to achieve this specific outcome.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party might argue that any degree of magnetically induced outward pull on the nasal skin that results in any measurable dilation meets the limitation.
- Evidence for a Narrower Interpretation: A party could argue that the context of the patent, which describes overcoming nasal passage compression from goggles, implies a force sufficient to achieve a medically or functionally significant dilation, not merely an incidental or trivial effect (’969 Patent, col. 1:53-56, col. 2:9-12).
VI. Other Allegations
- Indirect Infringement: The complaint does not plead a separate count for indirect infringement. However, the accused product is a "Refill Pack," which by its nature is a component of a larger system, potentially raising questions of contributory infringement or inducement if Defendant is found to be selling a non-staple component for an infringing use (Compl. p.7).
- Willful Infringement: The complaint alleges willful infringement. It bases this on alleged pre-suit knowledge from a notice sent via Amazon on November 6, 2025, and on post-suit knowledge from the filing of the complaint itself (Compl. ¶27, ¶29, ¶36).
VII. Analyst’s Conclusion: Key Questions for the Case
- A primary issue will be one of evidentiary proof: does discovery and physical analysis of the Accused Products reveal the presence of a "metallic element" as required by the asserted claims, or are they simple non-metallic adhesive strips? The complaint’s allegations on this point are foundational to its infringement theory.
- A second core issue will be one of functional operation: assuming the Accused Products contain a metallic element, what evidence will show that their intended use with a magnetic system necessarily results in "imparting a dilating force" as claimed, rather than this being merely a possible but not required outcome?