Hyper Ice Inc v. MerchSource LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Hyper Ice, Inc. (California)
  • Defendant: MERCHSOURCE, LLC, dba SHARPER IMAGE (Delaware)
  • Plaintiff’s Counsel: Miller Barondess LLP; Lewis Brisbois Bisgaard & Smith LLP
• Case Identification: 8:24-cv-02035, C.D. Cal., 09/19/2024
• Venue Allegations: Plaintiff alleges venue is proper in the Central District of California because Defendant has committed acts of infringement and maintains a regular and established place of business within the district.
• Core Dispute: Plaintiff alleges that Defendant’s percussion massager, which offers hot and cold therapy, infringes a patent related to therapeutic devices capable of delivering multiple, distinct energy types to a user.
• Technical Context: The technology concerns handheld devices that combine different therapeutic or communicative modalities, such as mechanical percussion and thermal energy, controlled by an internal processing unit.
• Key Procedural History: The complaint does not reference any prior litigation, inter partes review proceedings, or licensing history concerning the patent-in-suit. The patent issued approximately two months prior to the filing of the complaint.

Case Timeline

Date	Event
2017-10-23	'174 Patent Priority Date
2024-07-16	U.S. Patent No. 12,036,174 Issues
2024-09-19	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 12,036,174 - “Communication devices, methods, and systems”

• Patent Identification: U.S. Patent No. 12,036,174, “Communication devices, methods, and systems,” issued July 16, 2024.

The Invention Explained

• Problem Addressed: The patent identifies the problem of excessive screen time and associated health issues like eyestrain, proposing that alternative methods are needed for person-to-computer communication that do not rely on vision (’174 Patent, col. 1:32-51). It suggests leveraging non-optical nerves, such as those in the skin, for this purpose (’174 Patent, col. 1:51-53).
• The Patented Solution: The invention is a device with a plurality of "energy generators" capable of converting electricity into different energy types (e.g., impact, heat, pressure, electrical shock) to transmit signals to a user's skin (’174 Patent, Abstract; col. 3:19-25). A processing unit receives input data and controls the generators to output these energy signals, which can be arranged into symbols to communicate complex information, such as vital signs (’174 Patent, col. 2:48-55). Embodiments range from wearable bands to a grip for a handgun, illustrating a broad scope of potential applications (’174 Patent, Fig. 7B).
• Technical Importance: The invention describes a system for conveying information through multi-modal haptic feedback, moving beyond simple vibrations to use distinct, layered energy types to potentially increase the bandwidth and complexity of non-visual communication (’174 Patent, col. 23:1-5).

Key Claims at a Glance

• The complaint asserts independent Claim 17 (’174 Patent, col. 42:17-33; Compl. ¶15).
• The essential elements of Claim 17 are:
  • A body with a power source, a processing unit, and a skin contacting surface held by a user's grip.
  • A first energy generator element that is a linearly actuatable impact generator, and a second, independently operable energy generator element.
  • Both generators convert electricity from the power source into a first and second energy type directed at the user's skin.
  • The processing unit is also operable to output an optical signal on a display that corresponds to the control signal.
• The complaint reserves the right to assert infringement of other claims but does not specify them (Compl. ¶15).

III. The Accused Instrumentality

Product Identification

• The Powerboost Pro+ Hot & Cold percussion massager (Compl. ¶12).

Functionality and Market Context

• The complaint alleges the accused product is a battery-powered device designed to be held by a user (Compl. ¶15, ¶16a).
• Based on its name and the infringement allegations, the product’s relevant functions include providing percussive massage (the "impact generator" functionality) and both hot and cold therapy (the "second energy type") (Compl. ¶12, ¶16b).
• The complaint alleges the product also includes a display that outputs an optical signal (Compl. ¶16c).
• The complaint does not provide further detail on the technical operation of the accused product or its market position.

IV. Analysis of Infringement Allegations

The complaint references a claim chart in an exhibit that was not provided with the filing (Compl. ¶12). The following summary is based on the narrative allegations of infringement.

’174 Patent Infringement Allegations

Claim Element (from Independent Claim 17)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
a body provided with a power source and a processing unit configured to receive input data and generate a control signal based on the input data, the body including a skin contacting surface maintainable against skin of a user by a force applied by a hand of the user when gripping the body	The complaint alleges the accused product is a battery-powered device with a body that is gripped by a user, and that it includes the claimed processing unit and control signal functionality (Compl. ¶15-16).	¶15, ¶16a	col. 40:8-14
a first energy generator element and a second energy generator element... the first and second energy generator elements being independently operable to convert electricity from the power source into a first energy type and a second energy type... the first energy generator element including an impact generator element... that is linearly actuatable	The product's "percussion massager" function is alleged to be the claimed "impact generator element," while its "Hot & Cold" capabilities are alleged to constitute the "second energy generator element" providing a "second energy type" (Compl. ¶12, ¶16b).	¶12, ¶16b	col. 18:1-38
wherein the processing unit is operable to output an optical signal on a display that is observable by eyes of the user, the output corresponding to the control signal	The complaint alleges the accused product includes a display that outputs an optical signal as required by the claim (Compl. ¶16c).	¶16c	col. 4:32-42

No probative visual evidence provided in complaint.

Identified Points of Contention

• Scope Questions: The patent specification repeatedly frames the invention's purpose as "communication" to solve the problem of excessive screen time (’174 Patent, col. 1:32-56). A central issue may be whether a therapeutic massager, whose primary purpose is muscle treatment, falls within the scope of the claimed "treatment device," which arises from a specification focused on haptic data communication. The definition of "control signal" may be disputed—does it require the conveyance of symbolic information as taught in the patent, or can it be a simple operational command (e.g., "turn on heat")?
• Technical Questions: The complaint alleges the accused product's display outputs an "optical signal... corresponding to the control signal" but provides no evidence as to what the signal is or how it corresponds (’174 Patent, col. 42:30-33; Compl. ¶16c). A key technical question will be what function this display actually performs. If it merely indicates a power status or selected mode (e.g., a static LED), there may be a technical mismatch with the claim's requirement that the optical output "correspond" to the control signal in the manner contemplated by the patent.

V. Key Claim Terms for Construction

The Term: "control signal"

Context and Importance

The interpretation of this term is critical to determining infringement. The case may turn on whether the accused product's simple operational signals (e.g., activating percussion or heat) qualify as the "control signal" recited in the claim. Practitioners may focus on this term because the patent’s specification heavily implies that the signal is for communicating complex data, not just activating a state.

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: Claim 17 itself requires only that the processing unit "generate a control signal based on the input data" without specifying that the signal must encode symbolic information (’174 Patent, col. 42:19-20). This could support an argument that any signal that controls the device's output elements qualifies.
• Evidence for a Narrower Interpretation: The patent’s Background and Summary sections consistently describe the invention as a "communication" device that outputs "symbols" to convey data like vital signs, suggesting the "control signal" is the underlying instruction for creating these symbolic, information-rich haptic outputs (’174 Patent, col. 1:51-53, col. 2:48-55).

The Term: "treatment device"

Context and Importance

Defendant may argue that the term, as used in this patent, is limited to devices with a primary communication function, attempting to distinguish its therapeutic massager. Practitioners may focus on this term to debate whether the preamble is limiting and how the specification's varied and unusual "treatment" examples (e.g., a gun grip) should inform its scope (’174 Patent, Fig. 7B).

Intrinsic Evidence for Interpretation

• Evidence for a Broader Interpretation: The plain language of the claim preamble recites a "treatment device," and the accused product is a device used for therapeutic treatment. This supports a broad, ordinary meaning.
• Evidence for a Narrower Interpretation: The specification repeatedly describes the technology's purpose as "communication" (’174 Patent, col. 1:34, col. 1:65). This consistent framing could be used to argue that a "treatment device" under this patent must be one that "treats" the problem of screen-based communication by providing a haptic alternative, thus narrowing its scope to devices with a communicative purpose.

VI. Other Allegations

Willful Infringement

• The complaint’s prayer for relief seeks increased damages, which implies an allegation of willful infringement (Compl., Prayer for Relief ¶4). However, the body of the complaint does not set forth a factual basis to support this claim, such as allegations of pre-suit or post-suit knowledge of the ’174 patent.

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of definitional scope: can the term "control signal," which is rooted in the patent’s context of complex data communication via haptic symbols, be construed to read on the operational signals of a mass-market therapeutic device that simply activates heating, cooling, or percussion modes?
• A key evidentiary question will be one of functional equivalence: does the accused product's optical display perform the specific function required by Claim 17 of outputting a signal that "correspond[s] to the control signal," or is there a fundamental mismatch in technical operation where the display merely indicates a static device status?