Brome Bird Care Inc v. Classic Brands LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Brome Bird Care Inc. (Canada)
  • Defendant: Classic Brands LLC (Colorado)
  • Plaintiff’s Counsel: Wilson, Elser, Moskowitz, Edelman & Dicker LLP
• Case Identification: 3:19-cv-01389, D. Conn., 09/06/2019
• Venue Allegations: Plaintiff alleges venue is proper in the District of Connecticut because Defendants maintain an established place of business and physical presence in the district, regularly transact business and sell products there, and committed alleged acts of infringement within the district.
• Core Dispute: Plaintiff alleges that Defendant’s squirrel-proof bird feeders infringe patents related to a weight-activated mechanism featuring a lower movable shroud that blocks access to feed when a heavy animal, such as a squirrel, rests on it.
• Technical Context: The technology operates within the consumer market for bird feeders, where preventing squirrels and other "marauders" from consuming expensive bird seed is a significant design driver.
• Key Procedural History: The complaint alleges that Defendant was aware of the patents-in-suit as early as October 2017, when a company representative allegedly claimed to have "circumvented" the patents. The complaint further alleges that Defendant instructed a designer to copy Plaintiff's commercial product. Plaintiff provided formal written notice of infringement on February 26, 2019.

Case Timeline

Date	Event
2001-01-12	Earliest Priority Date for ’384 and ’192 Patents
2003-04-08	’384 Patent Issued
2005-09-20	’192 Patent Issued
2017-05-01	Accused Products Allegedly First Offered for Sale (approx.)
2017-10-01	Defendant Allegedly Aware of Patents (approx.)
2019-02-26	Plaintiff Provided Formal Written Notice of Infringement
2019-09-06	Complaint Filed

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

U.S. Patent No. 6,543,384 - "Bird feeder having lower movable shroud," Issued April 8, 2003

The Invention Explained

• Problem Addressed: The patent identifies the long-standing problem of "marauders," particularly squirrels, accessing and consuming seed from bird feeders. It notes that previous solutions involving shrouds were often "relatively complicated and/or expensive to produce." (’384 Patent, col. 1:21-48).
• The Patented Solution: The invention is a bird feeder with a shroud that vertically slides along the outside of the feed container. In its default (unweighted) position, a spring mechanism holds the shroud up, aligning openings in the shroud with feeding ports in the container, allowing birds to eat. When a predetermined weight, such as that of a squirrel, is applied to the shroud or its perches, the shroud is forced downward against the spring's tension, misaligning the openings and cutting off access to the seed. The design also emphasizes easy, tool-free disassembly for cleaning. (’384 Patent, Abstract; col. 2:1-20, 62-65).
• Technical Importance: This design provides a mechanical, weight-sensitive method to selectively deny access to feed, specifically targeting heavier animals like squirrels while allowing lighter birds to feed. (’384 Patent, col. 1:49-58).

Key Claims at a Glance

• The complaint asserts at least independent claim 1 and dependent claims 2, 3, 6, 7, 8, 12, 16, and 18 (Compl. ¶23).
• Independent Claim 1 requires:
  • a feed container with at least one access opening;
  • a removable cover member;
  • a shroud with an access opening that extends around a portion of the feed container;
  • an elongated hollow center tube connected to the feed container;
  • an elongated rod inside the center tube, connected to the shroud at its lower end and axially movable within the tube; and
  • a biasing means (e.g., a spring) associated with the rod's upper end, which holds the shroud in an open position but allows it to move to a closed position under a predetermined weight.
• The complaint alleges infringement literally or under the doctrine of equivalents and the "at least" phrasing suggests a reservation of the right to assert additional claims (Compl. ¶23).

U.S. Patent No. 6,945,192 - "Bird feeder having lower movable shroud," Issued September 20, 2005

The Invention Explained

• Problem Addressed: As a continuation-in-part of the application leading to the ’384 Patent, this patent addresses the same core problem of excluding squirrels. It further addresses a potential operational failure where bird seed or other material could become lodged between the shroud and the feed container, causing the mechanism to bind. (’192 Patent, col. 3:8-13).
• The Patented Solution: The ’192 Patent refines the earlier design by, among other things, introducing a "tapered configuration" on the outer wall of the feed container. This taper creates an increasing gap between the container and the shroud as the shroud moves downward, allowing trapped seed to fall away and preventing the mechanism from jamming. (’192 Patent, Claim 1; col. 2:17-22). The patent also describes other improvements, such as adjustable perches and a protective member for the shroud's upper edge. (’192 Patent, col. 2:44-57; Claim 6).
• Technical Importance: This refinement aims to improve the reliability and smooth operation of the weight-activated shroud mechanism by actively preventing it from binding. (’192 Patent, col. 3:8-13).

Key Claims at a Glance

• The complaint asserts at least independent claims 1, 6, 7 and dependent claim 8 (Compl. ¶24).
• Independent Claim 1 requires a bird feeder with a movable shroud and adds the key limitation:
  • wherein said outer wall of said feed container has a tapered configuration adjacent said shroud such that when said shroud moves out of alignment with said feed container, said distance between said shroud and said outer wall increases.
• Independent Claim 6 requires, among other elements, a "shroud protection member" with a downwardly extending portion to protect the shroud's upper edge and an outwardly extending skirt portion.
• Independent Claim 7 requires a central tube that encloses the biasing means.
• The complaint alleges infringement literally or under the doctrine of equivalents and the "at least" phrasing suggests a reservation of the right to assert additional claims (Compl. ¶24).

III. The Accused Instrumentality

Product Identification

The Squirrel-X6™, Squirrel-X5™, and Droll Yankees® Blocker bird feeders (collectively, the "Accused Products") (Compl. ¶17).

Functionality and Market Context

The complaint alleges the Accused Products are "squirrel proof bird feeder[s] having a lower movable shroud" that operate using the patented technology (Compl. ¶15, ¶17). Plaintiff alleges that Defendant is "trading on the reputation and design" of Plaintiff's own "Squirrel Buster®" product line (Compl. ¶22). The Accused Products are allegedly sold through Defendant's websites and numerous major online and brick-and-mortar retailers (Compl. ¶18). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint does not provide claim charts or a detailed, element-by-element technical comparison. The infringement theory is based on the general allegation that the Accused Products are "squirrel proof bird feeder[s] having a lower movable shroud" and that they practice the inventions claimed in the patents-in-suit (Compl. ¶15, ¶17, ¶23-24). The complaint alleges that the Accused Products possess the functionality that is the result of Plaintiff's innovation (Compl. ¶36, ¶45). Without more specific factual allegations or technical exhibits mapping product features to claim limitations, a detailed infringement analysis is not possible from the complaint alone.

Identified Points of Contention

• Technical Questions: A central question will be whether the internal mechanics of the Accused Products meet every limitation of the asserted claims. For the ’384 Patent, does the accused mechanism use an "elongated rod" within a "hollow center tube" with the "biasing means associated with said rod at an upper end thereof"? For the ’192 Patent, does the accused feed container feature a "tapered configuration" as defined by Claim 1, or a "shroud protection member" as defined by Claim 6? The complaint does not provide the evidence to answer these questions.
• Scope Questions: The interpretation of terms of degree, such as "substantially aligned," could be a point of dispute. Further, the precise structural meaning of "elongated hollow center tube" and "elongated rod" may be contested depending on the design of the Accused Products.

V. Key Claim Terms for Construction

"biasing means associated with said rod at an upper end thereof" (’384 Patent, Claim 1)

• Context and Importance: This term defines the location and connection of the spring mechanism, a core functional part of the invention. Practitioners may focus on this term because infringement will depend on whether the accused product's spring is located and functions at the "upper end" of the central rod, as opposed to another location (e.g., at the bottom, or acting on the shroud directly).
• Intrinsic Evidence for a Broader Interpretation: The term "associated with" may be argued to encompass indirect functional relationships, not just direct physical attachment to the very top of the rod.
• Intrinsic Evidence for a Narrower Interpretation: The specification's only embodiment shows the spring (140) located within the upper portion of the assembly, acting on the upper threaded portion (136) of the rod (22) via a nut (142), suggesting the "upper end" location is a specific and intentional design choice (’384 Patent, Fig. 3; col. 4:62-67).

"tapered configuration" (’192 Patent, Claim 1)

• Context and Importance: This is the key novel feature recited in Claim 1 of the ’192 Patent. Whether the Accused Products infringe this claim will depend entirely on whether their feed containers have this feature and whether it meets the functional requirements of the claim.
• Intrinsic Evidence for a Broader Interpretation: The claim language itself does not specify a particular angle or degree of taper, which may support an interpretation that covers any inward angle on the container wall adjacent to the shroud.
• Intrinsic Evidence for a Narrower Interpretation: The specification explicitly links the taper to a function: to "enables any seed which is jammed between the shroud and wall to escape" (’192 Patent, col. 6:62-66). A defendant may argue that the term requires a taper sufficient to achieve this anti-binding function and is limited to the described embodiment where the wall "is tapered inwardly at its lower extremities" (’192 Patent, col. 6:60-61).

VI. Other Allegations

• Indirect Infringement: The complaint does not plead a separate count for indirect infringement, but the prayer for relief seeks an injunction against it (Compl. p. 8, ¶(c), ¶(h)). The complaint does not allege specific facts to support inducement (e.g., instructions to users) or contributory infringement.
• Willful Infringement: The complaint explicitly alleges willful infringement (Compl. ¶31, ¶40). The allegations are based on both pre- and post-suit knowledge. The complaint alleges Defendant had knowledge since at least October 2017, citing a statement from a company representative, and also alleges that Defendant intentionally copied Plaintiff's product (Compl. ¶20, ¶27, ¶33). It further alleges that formal notice was provided via letter on February 26, 2019, before the suit was filed (Compl. ¶26).

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

• Evidentiary Proof: A threshold issue for the court will be one of evidentiary proof. As the complaint provides a high-level infringement theory without detailed technical mappings, the case will depend on whether discovery reveals that the Accused Products' internal mechanisms practice the specific combination of elements recited in the asserted claims, including the rod-and-tube structure of the ’384 patent and the tapered-wall feature of the ’192 patent.
• Claim Construction: The dispute may turn on claim construction. The viability of the infringement case will likely depend on whether the court adopts a broad or narrow definition for key structural limitations such as "biasing means associated with said rod at an upper end thereof" and the functionally-defined "tapered configuration."
• Willfulness: Should infringement be found, a critical question will be willfulness. The court will have to assess the credibility of Plaintiff's allegations of deliberate copying and early knowledge—particularly the alleged 2017 "circumvention" boast—to determine if Defendant's conduct was egregious enough to warrant enhanced damages.