DCT

1:25-cv-03264

Kona Ice Inc v. Silva Romero

Key Events

Complaint

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Kona Ice, Inc. (Kentucky)
- Defendant: Renzo Silva-Romero (Colorado)
- Plaintiff’s Counsel: Ogborn Mihm, LLP
Case Identification: 1:17-cv-02302, D. Colo., 09/22/2017
Venue Allegations: Venue is based on Defendant's residence and principal place of business being located in Aurora, Colorado, which is within the judicial district.
Core Dispute: Plaintiff alleges that Defendant’s mobile shaved ice vehicle infringes a patent related to an externally mounted, self-service liquid toppings dispensing system.
Technical Context: The technology addresses operational efficiency in mobile food vehicles, specifically for frozen confections, by moving the time-consuming step of applying flavored toppings to a customer-operated station.
Key Procedural History: The complaint does not allege any prior litigation, licensing history, or other procedural events relevant to the current dispute.

Case Timeline

Date	Event
2013-02-27	U.S. Patent No. 9,751,447 Priority Date
2017-09-05	U.S. Patent No. 9,751,447 Issues
2017-09-22	Complaint Filed

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

U.S. Patent No. 9,751,447 - "Liquid Toppings Dispensing System"

Patent Identification: U.S. Patent No. 9,751,447, "Liquid Toppings Dispensing System," issued September 5, 2017.

The Invention Explained

Problem Addressed: The patent's background section describes inefficiencies in mobile confectionary businesses, where long lines can form while staff apply flavorings to items like shaved ice, or while customers (particularly children) decide on toppings. This slow service can deter potential customers and reduce profitability. (’447 Patent, col. 1:40-65).
The Patented Solution: The invention is a mobile confectionary vehicle equipped with an external, customer-facing liquid toppings dispensing system. After a customer receives a plain confection (e.g., shaved ice) from an employee through a service window, they can move to the separate, externally mounted station to apply their own toppings. This bifurcated process aims to speed up the main transaction and reduce queue times. (’447 Patent, Abstract; Fig. 1).
Technical Importance: This approach sought to increase customer throughput by offloading the topping application task from the vehicle operator to the customer, thereby shortening the service time per customer at the main window. (’447 Patent, col. 1:63-65).

Key Claims at a Glance

The complaint asserts independent Claim 1 and dependent Claims 2, 3, 4, 6, 7, and 10. (Compl. ¶11).
The essential elements of independent Claim 1 are:
- A mobile confectionary apparatus, comprising:
- A vehicle with at least one upstanding side wall;
- An interior space within the side wall for at least one person;
- An opening through the side wall for passing items out of the vehicle;
- A liquid toppings dispensing system with a housing positioned adjacent to and opposing the side wall, containing multiple liquid dispensers;
- The dispensers are in fluid communication with at least one liquid reservoir;
- The entire dispensing system is located externally to the side wall and "spaced entirely laterally therefrom by a gap."

III. The Accused Instrumentality

Product Identification

"Defendant's Service Vehicle," a truck used to sell frozen treats, including flavored shaved ice. (Compl. ¶9).

Functionality and Market Context

The complaint alleges the accused product is a mobile service truck that allows an operator inside to pass confections to customers through a window. (Compl. ¶¶16-17). An image of the accused service vehicle is provided in the complaint as Exhibit 2. (Compl. ¶9). The vehicle is alleged to incorporate an external system for dispensing liquid flavorings, which includes multiple spigots supported by a frame and connected by hoses to containers of liquid toppings. (Compl. ¶18). This system is described as being mounted on the outside of the truck. (Compl. ¶18).

IV. Analysis of Infringement Allegations

Claim Chart Summary:

'447 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A mobile confectionary apparatus, comprising: a vehicle including at least one upstanding side wall	The accused Service Vehicle is a mobile truck with at least one wall enclosing a rear portion.	¶14, ¶15	col. 4:7-9
an interior space surrounded by the at least one upstanding side wall and configured to receive at least one person	The rear portion of the truck is designed to allow at least one person to be present inside.	¶16	col. 4:55-58
an opening extending through the at least one upstanding side wall and through which an item may be passed from the interior space to outside of the vehicle	The truck has a window in its side wall used to pass items to customers.	¶17	col. 5:9-14
a liquid toppings dispensing system including a housing being positioned adjacent to, and opposing, the at least one upstanding side wall and including a plurality of liquid dispensers	The vehicle has a system with multiple spigots supported by a frame, positioned in close proximity to and opposing the truck's side wall, to dispense liquid flavoring.	¶18	col. 2:23-27
each of the plurality of liquid dispensers being in fluid communication with at least one reservoir holding the at least one liquid topping	The spigots are attached to containers holding liquid toppings via hoses.	¶18	col. 7:26-31
with the liquid toppings dispensing system being located externally of the at least one upstanding side wall and spaced entirely laterally therefrom by a gap	The dispensing system is mounted on the outside of the truck with a space between it and the side wall. The complaint references an image of the vehicle as evidence of this structure.	¶18	col. 6:37-40

Identified Points of Contention:
- Scope Questions: A central question may be whether the accused "frame" supporting multiple spigots (Compl. ¶18) meets the claim limitation of a "housing." The interpretation of "housing" could be a focal point of dispute.
- Technical Questions: The complaint alleges the accused system is "spaced entirely laterally therefrom by a gap" because "there is a space between it and the side wall of the truck." (Compl. ¶18). A key question for the court may be whether any physical separation created by a mounting bracket or similar hardware satisfies this limitation, or if the patent's specification implies a more specific type of structural gap.

V. Key Claim Terms for Construction

The Term: "housing"
- Context and Importance: The infringement allegation hinges on whether the accused "frame" (Compl. ¶18) that supports the spigots can be construed as a "housing." If "housing" is construed to require a substantial enclosure, the infringement argument may be weakened; if it is construed more broadly to include structural supports, the argument may be strengthened.
- Intrinsic Evidence for Interpretation:
  - Evidence for a Broader Interpretation: The patent does not provide an explicit definition of "housing," which may allow for it to be given its plain and ordinary meaning, potentially encompassing a structural frame.
  - Evidence for a Narrower Interpretation: The specification describes how a "support panel 42 and backsplash 43 may be enclosed within a housing 44." (’447 Patent, col. 7:4-5). Figures such as 3A and 4A depict the housing (44) as a box-like structure that encloses the dispensing components, which could support a narrower construction requiring more than a simple frame.
The Term: "spaced entirely laterally therefrom by a gap"
- Context and Importance: This limitation defines the physical relationship between the dispensing system and the vehicle wall. Practitioners may focus on this term because its construction will determine whether a standard mounting space is sufficient to infringe or if a more distinct, functionally significant separation is required.
- Intrinsic Evidence for Interpretation:
  - Evidence for a Broader Interpretation: The claim language itself is straightforward and does not qualify the size or nature of the "gap," suggesting any lateral space may suffice.
  - Evidence for a Narrower Interpretation: The specification explicitly discusses a "gap 39" in the context of the system being pivoted into a second position (see Fig. 4B), which is a storage or alternative use position. (’447 Patent, col. 6:37-40). A party could argue that the term "gap" should be understood in this context, implying a specific structural arrangement related to the system's adjustability, even though Claim 1 does not recite adjustability.

VI. Other Allegations

Indirect Infringement: The prayer for relief seeks judgment for induced and contributory infringement, but the complaint's factual allegations focus exclusively on direct infringement through Defendant's "operation and use" of the service vehicle. (Compl. ¶11, ¶A). The complaint does not provide sufficient detail for analysis of indirect infringement.
Willful Infringement: The complaint alleges willfulness "on information and belief" based on a multi-step inference: (1) Defendant is a franchisee of a third party, Tikiz; (2) Tikiz is allegedly aware of and monitors Kona Ice's patents; and (3) through this franchise relationship, Defendant "is or should be aware" or "may be aware" of the patent-in-suit. (Compl. ¶20).

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

A core issue will be one of definitional scope: can the term "housing," which is depicted in the patent as a box-like enclosure, be construed to cover the "frame" alleged to support the spigots on the accused vehicle?
A second key issue will be the construction of relational language: does the claim limitation "spaced entirely laterally therefrom by a gap" require a specific structural separation as suggested by certain patent figures, or is it satisfied by the incidental space created by any external mounting hardware?
A central evidentiary question will be whether the plaintiff can substantiate its claim of willful infringement, which relies on attributing the alleged knowledge of a third-party franchisor to the individual defendant franchisee to establish pre-suit knowledge of the patent.