S2S Innovations Inc v. Tarry Medical Products Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: S2S Innovations Inc. (Province of Ontario, Canada)
  • Defendant: Tarry Medical Products Inc. d/b/a Dandle·LION Medical (State of Connecticut)
  • Plaintiff’s Counsel: Norton Rose Fulbright US LLP
• Case Identification: 3:17-cv-01778, D. Conn., 10/23/2017
• Venue Allegations: Plaintiff alleges venue is proper in the District of Connecticut because Defendant resides there, maintains its principal place of business there, transacts business in the district, and has allegedly committed acts of patent infringement in the district.
• Core Dispute: Plaintiff alleges that Defendant’s KangaROO Kuddler line of baby support products infringes four patents related to wearable fabric supports designed to facilitate safe, hands-free, skin-to-skin contact between a caregiver and an infant.
• Technical Context: The technology operates in the field of infant care products, specifically addressing the practice of "kangaroo care," where an infant is held skin-to-skin on a caregiver's chest for developmental and health benefits.
• Key Procedural History: The complaint alleges that Plaintiff first notified Defendant of potential infringement via email on July 5, 2016. Following a denial of infringement from Defendant’s counsel, the parties exchanged correspondence between April and September 2017. The complaint also notes that Defendant revised its "KangaROO Kuddler 2" product in May 2017, which may be relevant to the scope of infringement and willfulness allegations.

Case Timeline

Date	Event
2013-02-12	Earliest Priority Date Asserted (’119, ’019, ’466 Patents)
2013-12-02	Priority Date Asserted (’076 Patent)
2016-03-22	U.S. Patent No. 9,289,076 Issues
2016-03-22	Alleged Date of First Infringing Sale by Defendant
2016-05-17	U.S. Patent No. 9,339,119 Issues
2016-07-05	Plaintiff Alleges Providing Notice of Infringement to Defendant
2016-11-15	U.S. Patent No. 9,492,019 Issues
2017-03-28	U.S. Patent No. 9,603,466 Issues
2017-05-XX	Defendant Allegedly Revises its KangaROO Kuddler 2 Product
2017-10-23	Complaint Filed

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

U.S. Patent No. 9,289,076 - "Baby Support," issued March 22, 2016

The Invention Explained

• Problem Addressed: The patent describes the risk that a baby resting on a caregiver's chest may roll or fall off if the caregiver becomes distracted or falls asleep, which could cause harm to the baby (’076 Patent, col. 1:11-23).
• The Patented Solution: The invention is a wearable support made from an elongated soft body of stretch fabric with adjustable fasteners at its ends (’076 Patent, Abstract). In use, the support wraps around the torsos of both the caregiver and the baby, securing the baby on the caregiver’s chest and creating an "expandable pocket" that contours to the baby's body, providing a secure, hands-free system for skin-to-skin contact (’076 Patent, col. 1:24-39). The use of four-way stretch fabric is disclosed as a way to generate a gentle elastic force that pulls the baby snugly and comfortably toward the caregiver (’076 Patent, col. 6:45-54).
• Technical Importance: The claimed support provides a structural solution to enhance the safety and convenience of "kangaroo care," a practice recognized for its therapeutic and developmental benefits for infants (’076 Patent, col. 1:11-15).

Key Claims at a Glance

• The complaint asserts independent claims 1 and 13, among others (Compl. ¶25).
• Independent Claim 1 recites a baby support comprising:
  • An elongated soft body that extends across the back of a supporting person.
  • A first and a second fastening end integrally connected to the soft body.
  • The fastening ends configured to overlap and secure the baby on the person's front torso.
  • The entire support being made of "stretch fabric" that defines an "expandable pocket" and provides "stretch in four directions" to generate an elastic force.
• Independent Claim 13 recites a similar baby support comprising:
  • An elongated soft body that extends around the torsos of the person and the baby.
  • An adjustable fastening mechanism to secure the baby.
  • The entire support being made of "stretch fabric" configured to create an "expandable pocket" and provide "stretch in four directions" to generate an elastic force.
• The complaint reserves the right to assert other claims, including dependent claims (Compl. ¶25).

U.S. Patent No. 9,339,119 - "Baby Support," issued May 17, 2016

The Invention Explained

• Problem Addressed: The patent addresses the same risk described in the ’076 Patent: a baby may fall from a caregiver's chest during periods of rest or inattention (’119 Patent, col. 1:11-23).
• The Patented Solution: Rather than claiming the device itself, this patent claims a method for supporting a baby in skin-to-skin contact using the device (’119 Patent, Abstract). The method includes the steps of extending the elongated soft body around the caregiver and baby, securing the fastening ends, and, critically, "stretching the baby support to generate an elastic force" that maintains skin-to-skin contact and contours to the baby via "stretch in four directions" (’119 Patent, col. 13:10-47).
• Technical Importance: By claiming the method of use, this patent provides a different layer of protection, covering the specific actions performed by an end-user as instructed, rather than just the sale of the apparatus.

Key Claims at a Glance

• The complaint asserts independent claims 1 and 12, among others (Compl. ¶32).
• Independent Claim 1 recites a method comprising the steps of:
  • Extending an elongated soft body across a supporting person's back and a first fastening end across the baby's back.
  • Securing the support with a second fastening end.
  • Stretching the support (made of fabric with "stretch in four directions") to generate an elastic force to maintain skin-to-skin contact.
• Independent Claim 12 recites a similar method comprising the steps of:
  • Extending an elongated soft body around the torsos of the person and baby.
  • Securing the baby with an adjustable fastening mechanism.
  • Stretching the support (made of fabric with "stretch in four directions") to generate an elastic force.
• The complaint reserves the right to assert other claims, including dependent claims (Compl. ¶32).

U.S. Patent No. 9,492,019 - "Baby Support," issued November 15, 2016

• Technology Synopsis: Belonging to the same patent family, the ’019 Patent claims an apparatus for supporting a baby on a caregiver's torso. The claims require the support to be made of "stretch fabric" that defines an "expandable pocket" and is configured to "contour the baby to provide a secure and snug support through stretch in four directions" (’019 Patent, Claim 1).
• Asserted Claims: Independent claims 1 and 13 are asserted (Compl. ¶39).
• Accused Features: The complaint alleges the Accused Products infringe by embodying the claimed features, including the elongated stretch-fabric body and adjustable fasteners that secure an infant to a caregiver (Compl. ¶¶23, 39).

U.S. Patent No. 9,603,466 - "Baby Support," issued March 28, 2017

• Technology Synopsis: This patent is also in the same family and claims a baby support apparatus. The claims, which were subject to a certificate of correction to replace "adult" with "person," are directed to a support whose "entire length and width" is made of "stretch fabric" that creates an "expandable pocket" and generates an elastic force via "stretch in four directions" to maintain skin-to-skin contact (’466 Patent, Claim 1).
• Asserted Claims: Independent claims 1 and 12 are asserted (Compl. ¶46).
• Accused Features: The complaint alleges the Accused Products infringe by having the structure of the claimed baby support, particularly its use of a stretchable body and fasteners to secure an infant (Compl. ¶¶23, 46).

III. The Accused Instrumentality

• Product Identification: The KangaROO Kuddler (“KK1”), KangaROO Kuddler 2 (“KK2”), and the revised KangaROO Kuddler 2 (“Revised KK2”) (Compl. ¶2).
• Functionality and Market Context:
  • The complaint alleges the accused products are "kangaroo care accessories" designed to "wrap snugly around the parent and baby, providing support and holding the baby securely on the chest" (Compl. ¶¶22-23). A screenshot from Defendant's website, included in the complaint, describes the original KangaROO Kuddler as being made of "soft, lightweight cotton" with a "side Velcro closure" (Compl. p.5). A photograph from a conference display, also in the complaint, describes the "KKuddler2" as being made from "washable rayon spandex fabric" (Compl. p.13). The products are described as being appropriate for hospital use and allowing for lines and tubes to be managed while holding the infant (Compl. p.5, p.13).

IV. Analysis of Infringement Allegations

’076 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
an elongated soft body with a first and a second end...	The Accused Products are described as wraps made of a soft fabric such as "lightweight cotton" or "rayon spandex."	¶23; p.5; p.13	col. 5:58-62
a first fastening end integrally connected to the first end...and a second fastening end integrally connected to the second end...	The products are alleged to have overlapping ends that fasten, with product literature referencing "side Velcro closure."	p.5; p.13	col. 8:49-61
the entire length and width of the baby support...being made of stretch fabric...	The "KK2" and "Revised KK2" are described as being made of "rayon spandex fabric," which suggests stretch. The original "KK1" is described as "lightweight cotton."	p.5; p.13	col. 6:25-30
configured to define, when in use, an expandable pocket...	The product website states that a "Pouch at the bottom holds baby's bottom in place or can be unfolded for more coverage."	p.5	col. 13:34-41
...to provide a secure and snug support through stretch in four directions to generate an elastic force...	Plaintiff alleges the products wrap "snugly" to provide support, and the "rayon spandex" material of the KK2 suggests the generation of an elastic force.	¶23; p.13	col. 6:56-65

Identified Points of Contention

• Scope Questions: A primary issue for the court may be whether the term "stretch fabric" reads on the "lightweight cotton" material of the original KangaROO Kuddler product. The complaint's inclusion of an "and/or under the doctrine of equivalents" allegation suggests Plaintiff anticipates a dispute on whether cotton is structurally or functionally equivalent to the claimed "stretch fabric" (Compl. ¶25).
• Technical Questions: The claims require the fabric to provide "stretch in four directions." The complaint does not present specific evidence demonstrating this technical characteristic in the accused products. A key evidentiary question will be whether the accused fabrics, both the cotton and the rayon-spandex versions, actually exhibit multi-directional stretch as contemplated by the patent, which distinguishes "four-way stretch" from "two-way stretch" fabrics (’076 Patent, col. 6:50-65).

V. Key Claim Terms for Construction

The Term: "stretch fabric"

• Context and Importance: This term is critical because the original KangaROO Kuddler is made of "cotton," while a later version is made of "rayon spandex" (Compl. p.5, p.13). The infringement analysis, particularly for the original product, may depend on whether "cotton" falls within the scope of "stretch fabric." Practitioners may focus on this term because the defendant’s potential liability could expand significantly if its initial product is found to infringe.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification at times uses general language, referring to the support being made of a "soft fabric material" (’076 Patent, col. 5:60-61), which a plaintiff might argue supports a construction not limited to fabrics containing elastane.
  • Evidence for a Narrower Interpretation: The patent consistently links the "stretch fabric" to the function of generating an "elastic force to pull the back torso of the baby towards the back torso of the supporting person" (’076 Patent, col. 1:33-36). A defendant could argue this requires a material with significant elastic properties, not just the minimal give of a standard cotton weave.

The Term: "stretch in four directions"

• Context and Importance: This limitation appears in the independent claims of all four asserted patents. Proving that the accused products meet this specific functional requirement is essential to Plaintiff’s infringement case for each patent.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent illustrates "four-way stretch" with arrows showing perpendicular stretch (horizontal and vertical), which a plaintiff could argue simply means the fabric must have meaningful elasticity along both its lengthwise and crosswise axes (’076 Patent, FIG. 28).
  • Evidence for a Narrower Interpretation: The specification explicitly discusses and distinguishes between "two way stretch fabrics" and "four-way stretch fabrics" (’076 Patent, col. 6:50-65). A defendant may argue that this distinction implies the term has a specific technical meaning in the textile arts and requires more than incidental stretch in a second direction.

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement. Inducement is based on allegations that Defendant’s advertising, promotional materials, and instructions direct customers to use the Accused Products in an infringing manner (Compl. ¶¶28, 35). Contributory infringement is based on allegations that the products contain special, non-staple features (e.g., the soft body and adjustable fastener) that are specially designed for the infringing use and have no substantial non-infringing uses (Compl. ¶¶29, 36).
• Willful Infringement: The complaint alleges willful infringement based on Defendant's alleged pre-suit knowledge of the asserted patents. Plaintiff cites a specific email from July 5, 2016, as providing notice, followed by communications with Defendant's counsel, as evidence that Defendant was aware of the patents and the high risk of infringement (Compl. ¶¶30, 52-54).

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

• A core issue will be one of material scope: Does the "lightweight cotton" fabric of the original KangaROO Kuddler product meet the "stretch fabric" limitation required by the asserted claims, either literally or through the doctrine of equivalents? The resolution of this question could substantially impact the scope of potential damages.
• A key evidentiary question will be one of technical performance: Can the Plaintiff provide sufficient evidence to prove that the accused products' fabrics—both the cotton and the rayon-spandex versions—exhibit the specific "stretch in four directions" characteristic recited in the claims, a term the patent itself distinguishes from two-way stretch?
• A third question will concern intent: Given the complaint's detailed allegations of pre-suit notice and subsequent communications, the court will need to evaluate whether Defendant’s continued sales, including the launch of a "Revised KK2" product, were undertaken despite an objectively high risk of infringement, which is central to the willfulness claim.