8:24-cv-00938
Slick Slide LLC v. Big Air Franchising LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Slick Slide LLC (Delaware)
- Defendant: Big Air Franchising, LLC (California)
- Plaintiff’s Counsel: Kahana & Feld LLP; Wood Herron & Evans L.L.P.
- Case Identification: 8:24-cv-00938, C.D. Cal., 06/12/2024
- Venue Allegations: Plaintiff alleges venue is proper because Defendant resides in the judicial district, has committed alleged acts of infringement there, and maintains a regular and established place of business within the district.
- Core Dispute: Plaintiff alleges that Defendant, a franchisor of recreational parks, induced infringement of a design patent for a recreational slide by causing its franchisees to purchase, install, and use slides with a substantially similar design.
- Technical Context: The dispute concerns the ornamental design of recreational slides used in commercial amusement facilities, such as trampoline parks.
- Key Procedural History: The complaint alleges that Defendant had actual notice of the patent-in-suit as of February 2023, prior to the filing of the lawsuit. It also states that prior lawsuits against Defendant's franchisees have been resolved, though no monetary recovery was received by Plaintiff from those actions. This filing is a First Amended Complaint.
Case Timeline
| Date | Event |
|---|---|
| 2019-07-01 | '821 Patent Application Filing Date (Priority) |
| 2022-12-27 | '821 Patent Issue Date |
| 2023-02-17 | Alleged date Defendant was notified of patent |
| 2024-06-12 | First Amended Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D973,821 - Recreational Slide
The patent-in-suit is U.S. Design Patent No. D973,821, issued December 27, 2022 (the "'821 Patent").
The Invention Explained
- Problem Addressed: The complaint suggests a market for recreational slides with "innovative designs" to provide a "customized experience" for customers in amusement and water parks (Compl. ¶¶ 2, 7). Design patents protect the ornamental appearance of an article of manufacture rather than its utilitarian features.
- The Patented Solution: The '821 Patent claims the unique ornamental design for a recreational slide. The claimed design features a distinctive visual appearance characterized by several elements shown in the patent's figures, including a hooded or enclosed entry section, a specific overall curving trajectory, and a particular shape at the slide's exit ('821 Patent, Figs. 1-7). The sole claim is for "The ornamental design for a recreational slide, as shown and described" ('821 Patent, Claim).
- Technical Importance: The complaint posits that the design is an "original creation of Slick Slide" and is used on its "Launch Slide" product offering (Compl. ¶8).
Key Claims at a Glance
- Design patents contain a single claim, which is asserted in this case.
- The claim protects "The ornamental design for a recreational slide, as shown and described" in the patent's seven figures ('821 Patent, Claim). Infringement is assessed based on a visual comparison of the overall design, not a breakdown of discrete claim elements.
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are recreational slides purchased and used by Defendant’s franchisees, including BA NE Charlotte, LLC and BA Greenville, LLC (Compl. ¶¶ 12-17). The slides are alleged to be manufactured by Dreamland Playground (Compl. ¶21).
Functionality and Market Context
The slides are installed and operated in recreational parks franchised by the Defendant (Compl. ¶11). The complaint alleges that Defendant, in its role as franchisor, was responsible for or involved in designing, sourcing, selecting, and coordinating the manufacture and installation of the accused slides for its franchisees (Compl. ¶¶ 14, 19, 22). The complaint includes an image, attached as Exhibit B, of an accused slide installed at a franchisee's location (Compl. ¶13, Ex. B). A similar image for a different franchisee location is attached as Exhibit C (Compl. ¶16, Ex. C).
IV. Analysis of Infringement Allegations
Design patent infringement is determined by the "ordinary observer" test, which asks whether an ordinary observer would believe the accused design is the same as the patented design. The complaint alleges infringement by comparing specific ornamental features.
’821 Patent Infringement Allegations
| Patented Design Feature (as described in complaint) | Alleged Infringing Functionality (as seen in accused slides) | Complaint Citation | Patent Citation |
|---|---|---|---|
| An ornamental and novel hood design that encloses the first section of the claimed slide. | A "nearly identical feature" is alleged to be found in the images of the accused products in Exhibit B and Exhibit C. | ¶¶ 26-27 | '821 Patent, Figs. 1-4 |
| An ornamental and novel overall slide trajectory. | A "nearly identical feature" regarding the overall trajectory is alleged to be found in the images of the accused products. | ¶26 | '821 Patent, Figs. 1, 2, 7 |
| An ornamental and novel slide exit trajectory at the end of the slide design. | A "nearly identical feature" regarding the exit trajectory is alleged to be found in the images of the accused products. | ¶¶ 26-27 | '821 Patent, Figs. 2, 5, 6 |
Identified Points of Contention
- Scope Questions: The central infringement question is whether the overall visual impression of the accused slides is "substantially the same" as the claimed design in the '821 Patent. The dispute may turn on whether the similarities pertain to ornamental aspects, as claimed, or to elements that are primarily functional and therefore outside the scope of design patent protection.
- Technical Questions: The complaint alleges that the designs are "substantially the same" such that an ordinary observer would be confused (Compl. ¶25). The court will need to determine if the visual evidence of the accused slides (Compl. Exs. B, C) supports this conclusion when compared to the patent figures. The identity of the "ordinary observer" itself may be a point of contention—whether it is the end-user of the slide or the more sophisticated commercial purchaser of park equipment (Compl. ¶25).
V. Key Claim Terms for Construction
In design patent cases, formal claim construction of specific terms is rare. The "claim" is the design as a whole, depicted in the drawings. The analysis focuses on the scope of the claimed design.
- The Term: The ornamental design "as shown and described."
- Context and Importance: The scope of the design patent is defined by its visual appearance. The key legal analysis will not be defining words, but rather determining which visual elements of the slide are ornamental and non-functional, as only those elements are protected.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The figures show a complete slide design with a consistent aesthetic. A party could argue that the overall visual impression, created by the combination of the hood, the specific curvature, and the exit, constitutes a protectable whole. The complaint emphasizes the combination of these features as being "ornamental and novel" (Compl. ¶26).
- Evidence for a Narrower Interpretation: A party could argue that certain features, such as the general curved path of a slide or the presence of side walls, are dictated by function and safety standards. If successful, such an argument would narrow the scope of protectable design to only the purely non-functional and ornamental flourishes, potentially making it harder to prove infringement.
VI. Other Allegations
Indirect Infringement
The complaint exclusively pleads a count for inducement of infringement (Compl. ¶¶ 30-34). It alleges Defendant took active steps to encourage its franchisees' infringement by instructing them to purchase and use the accused slides, coordinating their manufacture with Dreamland Playground, and managing their selection and installation (Compl. ¶¶ 14, 17, 22, 32). This conduct is alleged to constitute inducement under 35 U.S.C. § 271(b).
Willful Infringement
Willfulness is alleged based on Defendant’s purported knowledge of the '821 Patent prior to the lawsuit (Compl. ¶33). The complaint specifically alleges that on or about February 17, 2023, one of Defendant's franchisees emailed a copy of the '821 Patent to multiple representatives of Defendant, placing them on notice of the patent and Plaintiff's rights (Compl. ¶19).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual comparison: Is the overall ornamental design of the accused recreational slides "substantially the same" as the design claimed in the '821 Patent, such that an ordinary observer would be induced to purchase one believing it to be the other?
- A second central question will be one of intent for inducement: Can the plaintiff provide sufficient evidence that the Defendant, as a franchisor, acted with the specific intent to cause its franchisees to infringe the '821 patent, beyond merely facilitating the setup of their parks? The alleged pre-suit notice via email will be a critical piece of evidence in this analysis.
- An underlying legal question may be the scope of patentable design: To what extent are the similarities between the patented design and the accused slides based on purely ornamental features versus elements dictated by the function of a recreational slide? The answer will define the effective scope of the patent's protection.