DCT

3:25-cv-02281

Ziip Inc v. Carol Cole Co

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 3:25-cv-02281, S.D. Cal., 09/03/2025
  • Venue Allegations: Venue is alleged to be proper in the Southern District of California because Defendant, a California corporation, resides in the district and maintains a regular and established place of business there.
  • Core Dispute: Plaintiff alleges that Defendant’s app-connected microcurrent facial toning devices infringe patents related to electrical stimulator apparatuses that can be controlled by programmable instructions from an external device.
  • Technical Context: The technology resides in the at-home cosmetic device market, where handheld devices use low-level electrical currents for skin rejuvenation, with smartphone app connectivity enabling customized treatment protocols.
  • Key Procedural History: The complaint alleges that Plaintiff provided Defendant with actual notice of infringement via a cease and desist letter approximately seven months prior to filing the lawsuit, forming the basis for allegations of willful infringement.

Case Timeline

Date Event
2014-12-31 '180 and '652 Patent Priority Date
2021-04-06 U.S. Patent No. 10,967,180 Issues
2024-07-23 U.S. Patent No. 12,042,652 Issues
2025-02-03 Alleged notice of infringement via cease and desist letter
2025-09-03 Complaint Filing Date

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

U.S. Patent No. 10,967,180 - ELECTRICAL CURRENT STIMULATOR APPARATUS

The Invention Explained

  • Problem Addressed: The patent addresses the growing use of weak electrical currents for rejuvenating skin and muscles, aiming to improve the delivery of these topical treatments (’180 Patent, col. 1:21-26).
  • The Patented Solution: The invention is a method for providing electrical skin treatment using a handheld apparatus. Its core concept is the ability to control the treatment remotely; the device receives "programmable instructions from an external device" (such as a smartphone) to control the specific waveform of the low-level electrical current and to control a vibration that notifies the user when to move the apparatus to a different area of the skin (’180 Patent, Abstract; col. 10:52-11:6).
  • Technical Importance: This approach allows for customizable, app-driven cosmetic treatments, shifting the technology from devices with fixed, built-in settings to a more flexible and updatable system (’180 Patent, col. 6:18-21).

Key Claims at a Glance

  • The complaint asserts independent claim 1 and reserves the right to assert others (Compl. ¶¶ 34, 51).
  • Independent Claim 1 (Method) requires:
    • Receiving programmable instructions from an external device;
    • Delivering an electric current of less than one milliampere to an area of the skin;
    • Controlling the electric current to have a specific waveform to improve cosmetic appearances;
    • Controlling a vibration to notify a user to move the apparatus to another area of the skin; and
    • Wherein at least one of the electric current and the vibration is controlled based on the received programmable instructions.

U.S. Patent No. 12,042,652 - ELECTRICAL CURRENT STIMULATOR APPARATUS

The Invention Explained

  • Problem Addressed: Similar to its parent, the '652 patent addresses methods for providing topical skin treatments using weak electrical currents (’652 Patent, col. 1:22-28).
  • The Patented Solution: The patent describes a method and apparatus for electrical skin treatment controlled by an external device. Key claimed features include electrodes with "substantially identical convex curved surfaces," which the specification notes are "ideal for smooth movement across the user's body or face," and a general "notification" (e.g., vibration, sound, or light) to prompt the user to move the device. This notification, like the electrical current, is controlled based on programmable instructions from an external source (’652 Patent, Abstract; col. 4:1-4; col. 11:1-20).
  • Technical Importance: The invention combines the customizable, app-driven control of its parent patent with specific ergonomic features (convex electrodes) aimed at improving the user experience during treatment (’652 Patent, col. 4:1-4).

Key Claims at a Glance

  • The complaint asserts independent claims 1 and 19 and reserves the right to assert others (Compl. ¶¶ 43, 61).
  • Independent Claim 1 (Method) requires:
    • Receiving programmable instructions from an external device;
    • Delivering a <1 milliampere electric current via electrodes that are "substantially identical convex curved surfaces";
    • Controlling the current to have a specific waveform while the electrodes are moved across the skin;
    • Controlling a "notification" to notify the user to move the apparatus; and
    • Wherein the current or the notification is controlled based on the programmable instructions.
  • Independent Claim 19 (Apparatus) requires:
    • An enclosure body with a first and second electrode that are "substantially identical convex curved surfaces"; and
    • A processor configured to receive programmable instructions from an external device to control a <1 milliampere electric current and a notification to prompt the user to move the apparatus.

III. The Accused Instrumentality

Product Identification

  • The accused instrumentalities are Defendant’s microcurrent facial toning devices, including the Trinity+, Trinity+ PRO, Trinity+ Effective Lip & Eye Attachment, and Mini+ models (Compl. ¶33).

Functionality and Market Context

  • The accused products are handheld devices that deliver microcurrents for cosmetic purposes (Compl. ¶33). The complaint alleges that these devices are designed to communicate with the "NuFACE Smart App" on a consumer's smartphone (Compl. ¶45).
  • According to the complaint, this app connectivity enables users to access "app-exclusive treatments" through a "secret menu" (Compl. ¶¶46-47). One such treatment, the "pro facial," allegedly "send[s] a deeper level of microcurrent to [the] device," allowing it to operate "deeper" into a user's muscles (Compl. ¶48).

IV. Analysis of Infringement Allegations

No probative visual evidence provided in complaint.

’180 Patent Infringement Allegations

  • The complaint’s infringement theory centers on the interaction between the accused NuFACE devices and the NuFACE Smart App (Compl. ¶¶45-48). It alleges that when a user selects an "app-exclusive treatment," the app functions as the "external device" that transmits "programmable instructions" to the handheld device, thereby practicing the method of claim 1 (Compl. ¶55). The complaint posits that these instructions control the delivery of a low-level (<1 milliampere) electrical current with a specific waveform, as required by the claim (Compl. ¶¶29, 48). The complaint does not, however, identify a specific feature of the accused products that performs the claimed "vibration" configured to notify a user to move the apparatus.

’652 Patent Infringement Allegations

  • The allegations for the ’652 Patent follow a similar logic, contending that the accused devices and app together meet the limitations of method claim 1 and apparatus claim 19 (Compl. ¶¶43, 65). The complaint asserts that the NuFACE devices possess the claimed "substantially identical convex curved surfaces" for their electrodes (Compl. ¶¶39-40). The core of the infringement allegation is that the device’s processor is configured to receive programmable instructions from the app to control the current and a "notification" (Compl. ¶65). As with the ’180 Patent, the complaint does not specify which feature of the accused products provides the claimed user "notification" or how it is controlled by the app.

Identified Points of Contention

  • Technical Questions: A primary factual dispute may arise over the nature of the communication between the app and the device. What evidence does the complaint provide that the app transmits "programmable instructions" that dynamically control the waveform, as opposed to simply sending a signal to activate a pre-existing routine stored locally on the device? The allegation that the app "send[s] a deeper level of microcurrent" (Compl. ¶48) does not clarify this technical distinction.
  • Scope Questions: The case may raise the question of whether selecting a named treatment from a menu constitutes "receiving programmable instructions" within the meaning of the claims. Further, the absence of specific allegations regarding the claimed "vibration" ('180 Patent) or "notification" ('652 Patent) that prompts a user to move the device suggests a potential mismatch between the claimed method and the accused functionality that will require factual development.

V. Key Claim Terms for Construction

"receiving programmable instructions from an external device"

(asserted in '180 claim 1; '652 claims 1, 19)

  • Context and Importance: This term is the technological linchpin of the asserted claims and the infringement case. The dispute will likely focus on whether the accused app-to-device communication, as described in the complaint, falls within the scope of this term.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification states that "programmable instructions can be received from a software application for a mobile device, a personal computer, or a tablet device," which may support an interpretation that includes modern smartphone apps (’180 Patent, col. 3:19-22).
    • Evidence for a Narrower Interpretation: The patents provide an example where instructions specify a sequence of different waveforms over distinct time intervals (e.g., "one minute of a square wave, followed by two minutes of a sine wave") (’180 Patent, col. 6:23-26). This could support a narrower construction requiring the instructions to define the fundamental parameters of a waveform, rather than simply selecting a pre-packaged routine.

"controlling a vibration... to notify a user to move the apparatus" ('180 claim 1) and "controlling a notification... to notify a user to move the apparatus" ('652 claims 1, 19)

  • Context and Importance: These are required functional elements of the asserted claims. Since the complaint does not identify how the accused products perform this function, the construction of "vibration" and "notification" will be critical to determining infringement.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term "notification" in the ’652 Patent is broad. The shared specification discloses multiple forms of user feedback, including an "electric motor for vibrating the apparatus," a "light emitter," and a "sound output unit," suggesting "notification" could encompass various sensory cues (’180 Patent, col. 3:4-6, col. 3:23-25, col. 3:32-34).
    • Evidence for a Narrower Interpretation: The ’180 Patent is limited to "vibration." A defendant may argue this requires a specific mechanical action, such as that produced by the disclosed "electric motor... attached to a weight," and cannot be met by an audio or visual signal (’180 Patent, col. 4:15-22).

VI. Other Allegations

Indirect Infringement

  • The complaint alleges both induced and contributory infringement. Inducement is based on allegations that Defendant instructs end-users, through materials like product manuals and videos, to use the accused devices with the app in an infringing manner (Compl. ¶¶54, 58, 64, 68). Contributory infringement is based on the allegation that Defendant supplies the combination of the device and app, which constitutes a material part of the patented invention and is not a staple article of commerce suitable for substantial noninfringing use (Compl. ¶¶55, 65).

Willful Infringement

  • The complaint alleges willful infringement based on Defendant's continued infringing conduct after receiving a cease and desist letter on February 3, 2025, which allegedly provided actual notice of the asserted patents (Compl. ¶¶49, 52, 62).

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

  • A key evidentiary question will be one of technical mechanism: Does the accused NuFACE Smart App transmit "programmable instructions" that dynamically define and control the handheld device's electrical waveform, or does it merely send a command to activate a self-contained, pre-programmed routine already stored within the device's own memory?
  • The case will likely turn on a question of functional completeness: Do the accused products, in fact, provide a "vibration" ('180 Patent) or a "notification" ('652 Patent) for the specific purpose of prompting the user to move the device to a new treatment area, and is this function controlled by the app as the claims require?
  • A central issue of claim construction will be one of definitional scope: Can the term "programmable instructions" be construed to cover the selection of a named, holistic treatment from a software menu, or does the patent specification limit its meaning to a more granular set of commands that define the specific parameters of a waveform sequence?