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., 08/01/2022
  • Venue Allegations: Venue is alleged to be proper in the District of Delaware because the Defendant is a Delaware limited liability company.
  • Core Dispute: Plaintiff alleges that Defendant’s kinesiology tape products and the methods for their use infringe eight patents related to disposable, non-stretch anatomical support systems for treating conditions such as plantar fasciitis.
  • Technical Context: The technology concerns adhesive, fabric-based supports designed to mimic the function of ligaments, thereby reducing stress on underlying tissues like the plantar fascia, a key area within the consumer sports medicine and therapeutic goods market.
  • Key Procedural History: The complaint states that Plaintiff notified Defendant of the alleged infringement of the asserted patents via a letter dated June 10, 2021. The complaint also notes that for three of the asserted patents, Plaintiff obtained corrected USPTO filing receipts on July 26, 2022, to address an inadvertent clerical error in the priority claims.

Case Timeline

Date Event
2004-04-02 Earliest Priority Date for '511, '818, '398, '229, '987, and '953 Patents
2013-04-09 U.S. Patent No. 8,414,511 Issues
2014-08-26 U.S. Patent No. 8,814,818 Issues
2014-09-16 U.S. Patent No. 8,834,398 Issues
2015-03-03 U.S. Patent No. 8,968,229 Issues
2016-08-18 Earliest Priority Date for '815 Patent
2019-02-26 U.S. Patent No. 10,212,987 Issues
2019-04-17 Earliest Priority Date for '894 Patent
2019-05-28 U.S. Patent No. 10,299,953 Issues
2021-06-10 Plaintiff sends Defendant notice of infringement letter
2021-08-24 U.S. Patent No. 11,096,815 Issues
2021-12-28 U.S. Patent No. 11,206,894 Issues
2022-07-26 USPTO issues corrected filing receipts for '953, '815, and '894 Patents
2022-08-01 Complaint Filed

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

U.S. Patent No. 8,414,511 - "System for Treatment of Plantar Fasciitis"

  • Patent Identification: U.S. Patent No. 8,414,511, titled "System for Treatment of Plantar Fasciitis," issued April 9, 2013 (the ’511 Patent).

The Invention Explained

  • Problem Addressed: The patent addresses plantar fasciitis, a painful condition resulting from inflammation and micro-tears in the plantar fascia due to excessive tensile stress during activities like walking (Compl. ¶8; ’818 Patent, col. 1:29-34). The background describes conventional treatments like taping with elastic materials or standard adhesive tapes as being either ineffective at preventing excessive stretching, or cumbersome and difficult for a patient to self-apply correctly (’818 Patent, col. 3:1-4:62).
  • The Patented Solution: The invention is a disposable, pre-cut orthotic foot support made of a thin, flexible, but non-resilient and non-stretch woven material with an adhesive layer (’818 Patent, col. 1:20-29). When applied to the sole of the foot, it functions like an "external ligament," bearing the tensile loads that would otherwise stretch and damage the plantar fascia, by maintaining a constant distance between the heel and the ball of the foot throughout the gait cycle (’818 Patent, col. 11:1-14). Figure 2 of the related ’818 patent illustrates this concept, showing the support strap (10) acting in parallel with the natural plantar fascia (110) to absorb stress (’818 Patent, Fig. 2).
  • Technical Importance: The invention provides a method for supporting the plantar fascia that is designed to be easily self-applied by a user, disposable for hygiene, and effective at limiting tissue stretch, distinguishing it from both bulky reusable orthotics and less effective elastic tapes (Compl. ¶8; ’818 Patent, col. 11:43-56).

Key Claims at a Glance

  • The complaint asserts independent product claim 1 and independent method claim 20 (Compl. ¶20, 21).
  • Essential elements of independent product claim 1 include:
    • A foot support device for treating plantar fasciitis
    • comprising a thin flexible stretch-resistant sole member
    • comprised of a single woven fabric layer of uniform thickness
    • having a shape matching less than the entire outline of a sole of a wearer's foot
    • an adhesive layer on said sole member
    • at least one protective cover removably disposed over said adhesive layer

U.S. Patent No. 8,814,818 - "Disposable Two-Part Orthotic Foot Support, Strap System and Method"

  • Patent Identification: U.S. Patent No. 8,814,818, titled "Disposable Two-Part Orthotic Foot Support, Strap System and Method," issued August 26, 2014 (the ’818 Patent).

The Invention Explained

  • Problem Addressed: Similar to the ’511 Patent, the ’818 Patent addresses the need for effective, user-applicable support for foot conditions like plantar fasciitis (’818 Patent, col. 1:29-44).
  • The Patented Solution: This patent discloses a two-part system comprising a longitudinal "sole support strap" and a transverse "arch support strap" (’818 Patent, Abstract). The sole support strap is applied along the bottom of the foot to limit plantar fascia stretching, while the arch support strap is applied over the midfoot to maintain the sole strap's position and provide additional stability to the foot's arch and bone structure (’818 Patent, col. 11:25-34). The two components are shown provided together on a single release liner in Figure 3 (’818 Patent, Fig. 3).
  • Technical Importance: The two-part design offers a potentially more robust solution by combining longitudinal support for the plantar fascia with transverse support for the arch, which also helps prevent the primary sole strap from peeling away during use (’818 Patent, col. 11:61-65).

Key Claims at a Glance

  • The complaint asserts independent product claim 15 and independent method claim 19 (Compl. ¶30, 31).
  • Essential elements of independent product claim 15 include:
    • A disposable two-part orthotic foot support strap system
    • comprising a pre-cut sole support strap and a pre-cut arch support strap, both formed of woven material with an adhesive layer
    • the sole support strap shaped for application to a user's sole
    • the arch support strap shaped for application transversely over the sole support strap and a portion of the user's arch
    • the woven material having a tensile strength of at least 25 lb/in-width and a specific low ratio of elongation-to-tensile strength

Multi-Patent Capsules

  • U.S. Patent No. 8,834,398: "System for Treatment of Plantar Fasciitis," issued September 16, 2014. This patent claims methods of treating foot pain by applying a stretch-resistant support system to a user's foot. The complaint asserts method claims 1, 2, 5, 6, 13-17, and 19 against the "Exemplary Methods" practiced by Defendant and its customers (Compl. ¶40).
  • U.S. Patent No. 8,968,229: "Disposable Two-Part Orthotic Foot Support Strap System and Method," issued March 3, 2015. This patent claims methods of using a two-part support system for the foot. The complaint asserts method claims 12, 13, and 16-18 against the "Exemplary Methods," which involve the application of Defendant's products (Compl. ¶50).
  • U.S. Patent No. 10,212,987: "Method of Manufacturing an Anatomical Support System," issued February 26, 2019. This patent claims methods of manufacturing anatomical supports by acquiring a sheet of material and cutting pre-cut supports from it. The complaint asserts method claims 18, 19, and 22-31 against Defendant's practices (Compl. ¶60).
  • U.S. Patent No. 10,299,953: "Material Including Pre-Cut Anatomical Supports," issued May 28, 2019. This patent claims a material comprising a support layer with a plurality of pre-cut anatomical supports formed therein. The complaint asserts claims 1-2, 4-8, 10-13, 15-17, and 19 against Defendant's "Exemplary Methods" (Compl. ¶67).
  • U.S. Patent No. 11,096,815: "Material Including Elongate Strap Support," issued August 24, 2021. This patent claims a material that includes an elongate strap support with specific material properties. The complaint asserts numerous claims against the methods of using Defendant's products (Compl. ¶77).
  • U.S. Patent No. 11,206,894: "Anatomical Support Method Using Elongate Strap Support," issued December 28, 2021. This patent claims methods of using an elongate strap support on a human body. The complaint asserts claims 35-40 and 42 against the methods practiced with Defendant's products (Compl. ¶85).

III. The Accused Instrumentality

Product Identification

The accused products are collectively referred to as "KT Tape" and include at least four product lines: KT Tape (original), KT Tape Gentle, KT Tape Pro, and KT Tape Pro Extreme (Compl. ¶13).

Functionality and Market Context

The complaint identifies the accused products as being for the treatment of fascia injury (Compl. ¶12). They are marketed in various widths, colors, and packaging configurations (Compl. ¶14). The complaint does not provide specific technical details on the material composition or mechanical properties of the KT Tape products themselves. Instead, it focuses on the "Exemplary Methods" of applying the tape, which are alleged to infringe the asserted method claims (Compl. ¶15). The complaint refers to Exhibits 12-43 as demonstrating the infringement, but these exhibits were not filed with the complaint (Compl. ¶22). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint does not provide claim charts or detailed infringement contentions in its body, instead referring to exhibits that were not publicly filed. The infringement analysis is therefore based on the narrative allegations.

The core infringement theory appears to be twofold. First, for product claims like claim 1 of the ’511 Patent, the complaint alleges that the KT Tape product itself constitutes the claimed "foot support device" (Compl. ¶20). Second, for the numerous asserted method claims (e.g., in the ’818 Patent), the complaint alleges that the methods of application promoted and practiced by Defendant and its customers, which involve using one or more strips of KT Tape, constitute the claimed methods of providing anatomical support (Compl. ¶21, 31).

Identified Points of Contention

  • Scope Questions: The patents-in-suit repeatedly describe the invention as "non-resilient," "non-stretch," or "stretch-resistant" (’818 Patent, col. 7:12-25), and explicitly distinguish the invention from high-elasticity tapes (’818 Patent, col. 4:26-35). A central question may be whether the accused KT Tape products, which are marketed as kinesiology tapes and are generally understood to be elastic, can meet these "non-stretch" or "stretch-resistant" claim limitations, either literally or under the doctrine of equivalents.
  • Technical Questions: For patents claiming a "two-part... system" like the ’818 Patent, a question arises as to whether the ad-hoc application of two separate strips of a general-purpose tape by a user constitutes the claimed "system." The patent figures depict the two parts as pre-formed and provided together on a single release liner, which may suggest a co-packaged kit rather than a method of using generic tape strips (’818 Patent, Fig. 3). The complaint does not provide evidence to show that the accused products are sold or provided as a two-part system.

V. Key Claim Terms for Construction

The Term: "stretch-resistant" and "non-resilient, non-stretch"

  • Term Source: "stretch-resistant" (from '511 Patent, claim 1) and "non-resilient, non-stretch" (from '818 Patent, claim 15 preamble, via woven material properties).
  • Context and Importance: The infringement case may hinge on the construction of these terms. Practitioners may focus on this terminology because the accused KT Tape products are generally marketed and understood to be elastic, whereas the patents frame their novelty around being non-elastic to function as an "external ligament."
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term "stretch-resistant" in claim 1 of the ’511 Patent is not defined with a specific numerical limit in the claim itself, which might support an argument that the term is relative and should be interpreted in the context of its function in treating plantar fasciitis.
    • Evidence for a Narrower Interpretation: The specification of the related ’818 Patent defines "non-stretch" material as exhibiting "between 0% to 3% elongation" under specified loads and explicitly distinguishes the invention from prior art elastic tapes, such as KINESIO TEX™, which it states has "140% elasticity" (’818 Patent, col. 7:26-31; col. 4:26-35). This provides strong intrinsic evidence for a narrow, quantitative construction.

The Term: "disposable two-part orthotic foot support strap system"

  • Term Source: '818 Patent, claim 15.
  • Context and Importance: The definition of "system" is critical to determining whether the use of two generic strips of KT Tape infringes, or if the claim is limited to a specific product sold as a two-part kit.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party could argue that a "system" is formed when the two components (sole strap and arch strap) are used together as instructed, regardless of how they are packaged or sold. The claim defines the components by their shape and function upon application.
    • Evidence for a Narrower Interpretation: The specification describes a "disposable two-part... system having a sole support strap member and an arch support strap member" (’818 Patent, col. 1:20-24). Figure 3 depicts the two distinct members (10, 20) pre-cut and supplied together on a single release liner sheet (30), which may support an interpretation that the claimed "system" is a specific, pre-packaged product, not an ad-hoc combination of tape strips.

VI. Other Allegations

Indirect Infringement

The complaint alleges that Defendant induces infringement by providing and disseminating product descriptions, packaging, and instructions through various websites and other materials that allegedly instruct and encourage end-users to apply the KT Tape products in a manner that directly infringes the method claims of the asserted patents (Compl. ¶23, 33, 42). The complaint also alleges contributory infringement, stating the products are especially designed for infringing uses and are not staple articles of commerce with substantial non-infringing uses (Compl. ¶24, 34, 44).

Willful Infringement

The complaint alleges willful infringement based on Defendant's alleged continued infringement after receiving actual notice of the asserted patents via a letter dated June 10, 2021 (Compl. ¶94). It further alleges that Defendant acted despite an objectively high likelihood of infringement and has no reasonable non-infringement theories (Compl. ¶94).

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

  • A core issue will be one of technical definition: can the accused KT Tape products, which are part of the elastic kinesiology tape category, be found to meet the "stretch-resistant" and "non-resilient, non-stretch" limitations central to the asserted patents, especially given the specification's explicit contrast with high-elasticity tapes?
  • A key question of claim scope will be whether claims directed to a "two-part... system" can read on the practice of an end-user applying two separate strips of a general-purpose tape, or if the claim scope is limited to a pre-packaged, integrated product as depicted in the patent figures.
  • An evidentiary question will be one of infringing acts: since the complaint's infringement theory relies heavily on "Exemplary Methods" detailed in unfiled exhibits, the case will depend on the evidence presented to demonstrate that the instructions and methods promoted by the Defendant for its products map onto the specific steps recited in the asserted method claims.