DCT

1:22-cv-00638

Applied Biokinetics LLC v. KT Health LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:22-cv-00638, D. Del., 05/13/2022
  • Venue Allegations: Venue is alleged to be proper in the District of Delaware because the Defendant, KT Health, LLC, is a Delaware limited liability company.
  • Core Dispute: Plaintiff alleges that Defendant’s line of KT Tape therapeutic products, and the methods for their application, infringe five U.S. patents related to disposable orthotic supports for treating fascia injuries such as plantar fasciitis.
  • Technical Context: The technology relates to non-elastic, adhesive orthotic supports designed to function as an external ligament, providing anatomical support and reducing stress on the body’s fascia tissue.
  • Key Procedural History: Plaintiff allegedly sent a notice letter to Defendant on June 10, 2021, identifying all five asserted patents and alleging infringement, an event which predates the complaint by approximately eleven months and forms the basis for the willfulness allegations.

Case Timeline

Date Event
2004-04-02 Earliest Priority Date for Asserted Patents
2013-04-09 U.S. Patent No. 8,414,511 Issued
2014-08-26 U.S. Patent No. 8,814,818 Issued
2014-09-16 U.S. Patent No. 8,834,398 Issued
2015-03-03 U.S. Patent No. 8,968,229 Issued
2019-02-26 U.S. Patent No. 10,212,987 Issued
2021-06-10 Plaintiff sent notice letter of infringement to Defendant
2022-05-13 Complaint Filed

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

U.S. Patent No. 8,414,511

  • Patent Identification: U.S. Patent No. 8,414,511, titled “System for Treatment of Plantar Fasciitis,” issued on April 9, 2013 (Compl. ¶17).
  • The Invention Explained:
    • Problem Addressed: The complaint describes the inventor’s experience with a muscular injury and his conclusion that there was a need for an inexpensive, easy-to-apply system to treat pain and protect fascia from damaging stress (Compl. ¶8). The patent document was not provided for analysis of the background section.
    • The Patented Solution: The complaint describes the invention as a novel system including pre-cut parts with an adhesive layer, a removable cover layer, and a single woven support layer with high strength and low elongation in at least one direction to support underlying fascia (Compl. ¶8). The complaint provides an image of Plaintiff's own FasciaDerm product, which it states is an example of a commercialized product embodying its intellectual property (Compl. p. 3). The patent document was not provided for analysis of the detailed description.
    • Technical Importance: The complaint does not provide sufficient detail for analysis of the invention's technical importance.
  • Key Claims at a Glance:
    • The complaint asserts product claims 1-4, 26, 31-34, and 36, and method claims 20-21, 23, and 24 (Compl. ¶¶20-21).
    • The complaint does not provide the text of the asserted independent claims for analysis.
    • The complaint reserves the right to assert additional claims, including dependent claims (Compl. ¶23).

U.S. Patent No. 8,814,818

  • Patent Identification: U.S. Patent No. 8,814,818, titled “Disposable Two-Part Orthotic Foot Support, Strap System and Method,” issued on August 26, 2014 (Compl. ¶27).
  • The Invention Explained:
    • Problem Addressed: The patent document was not provided for analysis of the problem addressed. Based on the title and family context, the problem relates to providing orthotic foot support.
    • The Patented Solution: Based on its title, the patent appears to disclose a two-part strap system for foot support (Compl. ¶27). The patent document was not provided for analysis of the patented solution.
    • Technical Importance: The complaint does not provide sufficient detail for analysis of the invention's technical importance.
  • Key Claims at a Glance:
    • The complaint asserts product claim 15 and method claims 19 and 20 (Compl. ¶¶30-31).
    • The complaint does not provide the text of the asserted independent claims for analysis.
    • The complaint reserves the right to assert additional claims (Compl. ¶33).

U.S. Patent No. 8,834,398

  • Patent Identification: U.S. Patent No. 8,834,398, titled “System for Treatment of Plantar Fasciitis,” issued September 16, 2014 (Compl. ¶37).
  • Technology Synopsis: Based on its title and relation to the other asserted patents, the ’398 Patent appears to concern a system for treating plantar fasciitis, consistent with the technology described in the complaint’s factual background (Compl. ¶8, ¶37). The patent document was not provided for detailed analysis.
  • Asserted Claims: Method claims 1, 2, 5, 6, 13-17, and 19 (Compl. ¶40).
  • Accused Features: The methods of applying KT Tape products as demonstrated in "Exemplary Methods" (Compl. ¶40).

U.S. Patent No. 8,968,229

  • Patent Identification: U.S. Patent No. 8,968,229, titled “Disposable Two-Part Orthotic Foot Support Strap System and Method,” issued March 3, 2015 (Compl. ¶47).
  • Technology Synopsis: The invention is a disposable two-part system using a pre-cut sole support strap and an arch support strap made of flexible, non-resilient woven material with an adhesive layer (’229 Patent, Abstract). The system is designed to adhere to the foot to reduce tensile loads on the plantar fascia and provide anatomical support, addressing pain from conditions like plantar fasciitis (’229 Patent, col. 1:20-29).
  • Asserted Claims: Method claims 12, 13, and 16-18 (Compl. ¶50).
  • Accused Features: The methods of applying KT Tape products as demonstrated in "Exemplary Methods" (Compl. ¶50).

U.S. Patent No. 10,212,987

  • Patent Identification: U.S. Patent No. 10,212,987, titled “Method of Manufacturing an Anatomical Support System,” issued February 26, 2019 (Compl. ¶57).
  • Technology Synopsis: Based on the title, this patent appears to cover the manufacturing process for an anatomical support system, as opposed to the system or application method itself (Compl. ¶57). The patent document was not provided for detailed analysis.
  • Asserted Claims: Method claims 18, 19, and 22-31 (Compl. ¶¶60, 62).
  • Accused Features: The importation, sale, or use of KT Tape products, which are alleged to have been made by the patented manufacturing methods (Compl. ¶62). This count is brought under 35 U.S.C. § 271(g).

III. The Accused Instrumentality

  • Product Identification: The accused products are KT Tape (original), KT Tape Gentle, KT Tape Pro, and KT Tape Pro Extreme, collectively referred to as “KT Tape” (Compl. ¶13). The complaint also accuses the “Exemplary Methods” of applying these products (Compl. ¶15).
  • Functionality and Market Context: The KT Tape products are adhesive tapes marketed for treating fascia injuries (Compl. ¶12). They are sold in various widths, colors, and themes, suggesting a broad consumer and athletic market (Compl. ¶14). The functionality at issue is the application of these tapes to a user’s foot to provide anatomical support, which Plaintiff alleges constitutes practice of its patented methods (Compl. ¶15, 21, 31, 40, 50).

IV. Analysis of Infringement Allegations

The complaint references evidentiary exhibits (Exhibits 6-25) to demonstrate infringement for the asserted patents but does not provide claim charts in the body of the complaint (Compl. ¶¶20-22, 30-32, 40-41, 50-51, 60-61). As these exhibits were not provided, a claim chart summary cannot be constructed.

The narrative infringement theory is that Defendant KT HEALTH directly infringes by making and selling the KT Tape products and practicing the patented methods, and indirectly infringes by instructing and encouraging its customers to apply the KT Tape products in a manner that practices the steps of the asserted method claims (Compl. ¶¶20-24, 30-34, 40-44, 50-54, 60-62). For the ’987 Patent, infringement is alleged under 35 U.S.C. § 271(g) based on the importation of products made by the patented manufacturing process (Compl. ¶62).

  • Identified Points of Contention:
    • Technical Questions: A primary technical question will be whether the physical properties of the accused KT Tape products meet the specific material limitations recited in the patent claims. For example, for the ’229 Patent, a key issue may be whether KT Tape is a "woven material" with a "tensile strength greater than 15 lb/in-width" and a "ratio of elongation-to-tensile strength that is less than 0.9" (’229 Patent, cl. 12). The complaint does not provide evidence on these technical specifications.
    • Scope Questions: For the method claims, a central question will be whether the application steps taught by Defendant in its instructions and marketing materials meet every limitation of the asserted claims. Without the complaint's exhibits showing these "Exemplary Methods," the precise alignment between the accused methods and the claim language remains an open question.

V. Key Claim Terms for Construction

Analysis is based on the provided U.S. Patent No. 8,968,229, which is asserted in Count IV.

  • The Term: “non-resilient, non-stretch woven material” (from the specification, as context for "woven material" in asserted claim 12)
  • Context and Importance: This term is central because the patent distinguishes its invention from prior art elastic tapes and socks by emphasizing its inelastic, non-resilient nature, which allows it to function like an external ligament (’229 Patent, col. 7:10-16; col. 11:45-54). Practitioners may focus on this term because many therapeutic tapes, such as kinesiology tapes, are specifically designed to be elastic, creating a potential mismatch with the claim language.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party might argue the term should be understood by its plain meaning, where "woven material" simply means interlaced threads, and "non-stretch" is a relative term defined by the patent's specific elongation properties (e.g., "between 0% to 3% elongation along its longitudinal and transverse axis") (’229 Patent, col. 7:27-30).
    • Evidence for a Narrower Interpretation: The specification repeatedly defines the material as "essentially inelastic" and contrasts it with materials that "allow the foot to move and stretch" (’229 Patent, col. 3:3-4; col. 4:48-49). A party could argue that any material exhibiting functional elasticity, even if technically "woven," falls outside the scope of the claims as understood through the specification.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges inducement across all five asserted patents, asserting that Defendant instructs users on how to infringe through "advertising," "product packaging," "product instructions," and "websites" (Compl. ¶¶23, 33, 42, 52). Contributory infringement is also alleged on the basis that KT Tape products are especially made or adapted for infringing use and are not staple articles of commerce with substantial non-infringing uses (Compl. ¶¶24, 34, 44, 54).
  • Willful Infringement: Willfulness is alleged based on Defendant’s continued infringement after receiving Plaintiff’s notice letter dated June 10, 2021 (Compl. ¶67). The complaint alleges that Defendant knew or should have known of the objectively high likelihood of infringement and failed to alter its conduct (Compl. ¶67).

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

  • A core issue will be one of technical proof: can Plaintiff produce empirical evidence demonstrating that the accused KT Tape products—often marketed for their elastic properties—possess the specific non-stretch, non-resilient material properties and quantitative metrics (e.g., tensile strength, elongation ratios) required by the asserted patent claims?
  • A key legal question for the indirect infringement claims will be staple article of commerce: can Defendant establish that KT Tape is a general-purpose athletic tape with substantial non-infringing uses, thereby creating a defense to contributory infringement, or has its marketing and instructions for specific foot-related applications narrowed the product's use to the point that it is "especially adapted" for infringement?
  • For the manufacturing method patent (’987 Patent), a central challenge will be extraterritorial discovery: can Plaintiff successfully obtain evidence from Defendant concerning its overseas manufacturing processes sufficient to prove that those processes practice the specific steps of the asserted method claims?