DCT
1:24-cv-00071
Wild Man Lab LLC v. WHALECO Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Wild Man Lab LLC and Wild Man Drinking Company (Pennsylvania)
- Defendant: Whaleco Inc., d/b/a Temu (Delaware)
- Plaintiff’s Counsel: Flaster Greenberg P.C.
- Case Identification: 1:24-cv-00071, D. Del., 01/18/2024
- Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is a Delaware corporation and therefore resides in the district for patent venue purposes.
- Core Dispute: Plaintiff alleges that Defendant’s sale and importation of beverage can “shotgunning” devices infringe two patents covering a tool designed for this purpose.
- Technical Context: The technology concerns a mechanical accessory for rapidly consuming beverages from aluminum cans, a practice known as "shotgunning," which has a niche but established market among consumers.
- Key Procedural History: Plaintiff alleges it provided Defendant with actual notice of U.S. Patent No. 11,518,663 via a direct notice letter on August 3, 2023, and over 100 subsequent Intellectual Property Infringement Reports. The complaint alleges Defendant continued its infringing conduct after receiving this notice, which may form a basis for a willfulness claim.
Case Timeline
| Date | Event |
|---|---|
| 2020-08-01 | Plaintiff began developing the "shotgunning" device (approx.) |
| 2021-05-14 | Earliest Priority Date for ’663 and ’868 Patents |
| 2022-01-01 | Plaintiff's THE KRAK'IN® product launch (approx.) |
| 2022-12-06 | U.S. Patent No. 11,518,663 Issued |
| 2023-07-01 | Defendant began selling accused products (approx.) |
| 2023-08-03 | Plaintiff sent notice of '663 Patent to Defendant |
| 2023-08-22 | U.S. Patent No. 11,731,868 Issued |
| 2024-01-18 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 11,518,663 - “Beverage Drinking Apparatus,” issued December 6, 2022
The Invention Explained
- Problem Addressed: The patent addresses the safety, hygiene, and efficiency problems of traditional "shotgunning," where a key or thumb is used to puncture a beverage can. This conventional method creates sharp metal edges, causes spills due to a poor seal, and is unhygienic as it requires placing one's mouth directly on the can (Compl. ¶18; ’663 Patent, col. 1:15-27).
- The Patented Solution: The invention is a tool that uses a pivot arm as a fulcrum against the bottom of a can. As the user rotates the tool, a specially designed "entry portion" punctures a clean hole in the can's sidewall. A shroud then forms a seal against the can, and a built-in spout allows the user to drink the beverage without direct mouth-to-can contact, spillage, or risk of cuts (’663 Patent, Abstract; col. 3:3-25).
- Technical Importance: The apparatus provides a purpose-built, reusable tool that makes the process of shotgunning safer, cleaner, and more efficient than improvised methods (Compl. ¶19).
Key Claims at a Glance
- The complaint asserts claims 1 and 6 (Compl. ¶110).
- Independent Claim 1 requires:
- A spout comprising a bore.
- A pivot arm with a curved portion defining a fulcrum.
- A shroud extending from the spout.
- An entry portion with a flow portion (defining apertures) and a piercing portion, configured to pierce a can's sidewall when the apparatus is pivoted about the fulcrum.
- A specific geometry where the entry portion is curved downward and penetrates the hole upon further pivoting, allowing liquid to flow into the bore.
- The shroud is configured to partially surround the can's sidewall.
- The shroud comprises a "concave inner face" proximate to the can sidewall.
- The complaint does not explicitly reserve the right to assert other claims but focuses its allegations on claims 1 and 6 (Compl. ¶110).
U.S. Patent No. 11,731,868 - “Beverage Drinking Apparatus,” issued August 22, 2023
The Invention Explained
- Problem Addressed: As a continuation of the application leading to the ’663 Patent, the ’868 patent addresses the same problems of unsafe, messy, and unhygienic conventional shotgunning techniques (’868 Patent, col. 1:15-27; Compl. ¶18).
- The Patented Solution: The solution is functionally identical to that of the ’663 Patent: a mechanical tool with a pivot arm, piercing entry portion, shroud, and spout designed to provide a controlled and hygienic way to shotgun a beverage (’868 Patent, Abstract; col. 3:3-25).
- Technical Importance: The invention provides a dedicated, engineered solution to improve a common method of beverage consumption (Compl. ¶19).
Key Claims at a Glance
- The complaint asserts claims 1 and 6 (Compl. ¶129).
- Independent Claim 1 is substantially similar to Claim 1 of the ’663 Patent, requiring a spout, pivot arm, shroud, and a specific entry portion geometry for piercing a can. A key distinction is that Claim 1 of the ’868 Patent does not include the limitation that the shroud's inner face must be "concave" (Compl. ¶36).
- The complaint does not explicitly reserve the right to assert other claims but focuses its allegations on claims 1 and 6 (Compl. ¶129).
III. The Accused Instrumentality
- Product Identification: The accused products are various beverage shotgunning tools, referred to in the complaint as "Krak'in Knockoffs," offered for sale, sold, and imported by Defendant Temu through its e-commerce platforms (Compl. ¶54, ¶58).
- Functionality and Market Context:
- The complaint alleges the accused products are "copies of the patented THE KRAK'IN®" and function in an identical manner (Compl. ¶57, ¶59). A screenshot of an accused product listing on Temu describes it as an "innovative shotgun tool" (Compl. p. 20). Visual evidence in the complaint shows a device with a pivot arm for leveraging against a can bottom, a piercing tip, and a spout for drinking (Compl. ¶58, referencing Ex. J).
- The complaint alleges these products are sold for significantly less than Plaintiff's product (e.g., $1.88 versus $19.99), positioning them as low-cost alternatives (Compl. ¶54).
IV. Analysis of Infringement Allegations
The complaint alleges that the "Representative Temu Knockoff" is a direct copy of Plaintiff's patented technology and meets all limitations of the asserted claims, referencing claim chart exhibits that were not provided with the complaint (Compl. ¶59). The infringement theory is based on a direct structural and functional correspondence between the claim elements and the features of the accused products. A visual from the complaint shows a side-by-side comparison of Plaintiff's marketing materials and materials used by Temu, which appear to depict identical products and usage instructions (Compl. p. 62, ¶142).
'663 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A beverage drinking apparatus comprising: a spout comprising a bore; | The accused product includes a mouthpiece, or spout, with an internal channel, or bore, through which a user drinks (Compl. ¶58, referencing Ex. J). | ¶31, ¶59, ¶110 | col. 4:57-65 |
| a pivot arm comprising a curved portion, wherein the curved portion defines a fulcrum for rotating the beverage drinking apparatus; | The accused product has a hook-shaped pivot arm that engages the bottom rim of a beverage can, acting as a fulcrum to provide leverage for rotation (Compl. ¶58, referencing Ex. J). | ¶31, ¶59, ¶110 | col. 5:28-40 |
| a shroud extending from the spout; and | The accused product has a body or shroud from which the spout and pivot arm extend, and which is designed to press against the can's sidewall (Compl. ¶58, referencing Ex. J). | ¶31, ¶59, ¶110 | col. 3:11-12 |
| an entry portion extending from a first end of the spout, the entry portion comprising a flow portion defining a plurality of first apertures and a piercing portion...configured to pierce a hole in a sidewall of a beverage can as the beverage drinking apparatus is pivoted about the fulcrum... | The accused product features a pointed entry portion that extends from the shroud and is designed to puncture the can's sidewall when the device is rotated using the pivot arm as leverage. This portion contains openings to allow liquid to flow (Compl. ¶58, referencing Ex. J). | ¶31, ¶59, ¶110 | col. 3:26-40 |
| wherein the shroud comprises a concave inner face that is configured to be proximate to the sidewall of the beverage can when the entry portion is received within the hole. | The body of the accused product has an inwardly curved face designed to conform to the rounded sidewall of a standard beverage can, creating a seal when pressed against it (Compl. ¶58, referencing Ex. J). A screenshot of the Temu listing shows the device pressed flush against a can (Compl. p. 20). | ¶31, ¶59, ¶110 | col. 6:1-5 |
'868 Patent Infringement Allegations
(The infringement allegations for the '868 Patent are identical to those for the '663 Patent, with the exception of the final element, as noted below.)
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| [Elements 1-4 are identical to the '663 Patent chart above, alleging the accused product's spout, pivot arm, shroud, and piercing entry portion meet the limitations] | [The alleged infringing functionality for these elements is the same as described for the '663 Patent, based on the accused product's structure and function as depicted in the complaint (Compl. ¶58, referencing Ex. J)] | ¶36, ¶59, ¶129 | col. 4:57-65; 5:28-40; 3:26-40 |
| wherein the shroud is configured to be proximate to the sidewall of the beverage can when the entry portion is received within the hole. | The body of the accused product is shaped to sit flush against the sidewall of a beverage can after the entry portion has punctured it, as shown in product listings (Compl. p. 20). | ¶36, ¶59, ¶129 | col. 13:6-10 |
- Identified Points of Contention:
- Legal Question (Liability): The central dispute appears to be legal rather than technical. The complaint anticipates Temu's defense that it is a "passive e-commerce platform" not liable for infringement (Compl. ¶67). A core question for the court will be whether Temu's alleged actions—including contracting with suppliers, processing payments, coordinating shipping, and advertising the products as its own—constitute direct infringement by "importing" under 35 U.S.C. § 271(a), or alternatively, establish the necessary direction and control for vicarious liability over third-party importers (Compl. ¶111-118).
- Factual Question (Willfulness): The complaint provides specific dates of notice letters and infringement reports sent to Temu regarding the '663 patent (Compl. ¶64, ¶66). This raises the question of whether Temu's alleged continuation of its activities after receiving notice rises to the level of objective recklessness required for a finding of willful infringement.
V. Key Claim Terms for Construction
The Term: "concave inner face" (from Claim 1 of the '663 Patent)
- Context and Importance: This term is a key limitation differentiating the asserted claim of the '663 Patent from that of the '868 Patent. Its construction will be critical to determining infringement of the '663 Patent. Practitioners may focus on this term because the physical shape of the accused product's sealing surface must meet this specific geometric requirement.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification states the face "may be concave, for example, to correspond to the sidewall of the beverage can," suggesting that any inward curve designed to fit against a can could satisfy the limitation ('663 Patent, col. 6:1-3).
- Evidence for a Narrower Interpretation: The explicit link between the "concavity of the front surface" and the "convexity of the sidewall of the beverage can" could be used to argue for a narrower definition, requiring a specific radius of curvature that closely matches the standard cans described in the patent ('663 Patent, col. 6:3-5).
The Term: "fulcrum for rotating the beverage drinking apparatus"
- Context and Importance: This term defines the core mechanical principle of the invention. While the accused product appears to operate this way, the precise definition of "fulcrum" and the nature of the "rotating" action could become a point of contention if there are subtle differences in the mechanical interface.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification refers to the pivot arm functionally as a "hooking arm, a latching arm, a rotation arm, and/or a fulcrum arm," supporting a broad, functional definition rather than a strict structural one ('663 Patent, col. 5:32-34).
- Evidence for a Narrower Interpretation: The detailed description and figures show the curved portion engaging the lipped bottom edge of a specific type of beverage can ('663 Patent, FIG. 21A; col. 5:36-40). A defendant could argue the term is limited to this specific type of engagement point.
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement to infringe under 35 U.S.C. § 271(b) (Counts III and IV). The allegations are based on Temu's sale of the knockoffs to customers with the knowledge and intent that they will be used in a manner that directly infringes the patents. Evidence cited includes Temu’s publication of advertisements, user instructions, and marketing materials (some allegedly copied directly from Plaintiff) that explain how to use the device in the patented way (Compl. ¶139, ¶142, ¶158). The complaint also asserts there are no known non-infringing uses for the products (Compl. ¶139).
- Willful Infringement: Willfulness is alleged for both patents. For the '663 Patent, the claim is based on alleged pre-suit knowledge from an August 3, 2023 notice letter and over 100 subsequent infringement reports, after which Temu allegedly continued its conduct (Compl. ¶64, ¶66-68). For the '868 Patent, willfulness is alleged based on knowledge since at least the filing of the complaint and on constructive notice from Plaintiff's patent marking on its website (Compl. ¶130, ¶134, ¶157).
VII. Analyst’s Conclusion: Key Questions for the Case
- A central legal question will be one of liability for online marketplaces: Can Plaintiff prove that Defendant Temu's activities—which include managing logistics, advertising, and processing payments, and which Temu allegedly characterizes as a "passive" platform—constitute direct infringement via importation, or alternatively, establish the requisite direction and control over third-party importers to be held vicariously liable?
- A key factual question will be one of willfulness: Given the extensive pre-suit notice alleged in the complaint for the '663 patent, did Temu's decision to continue offering the accused products for sale constitute objective recklessness sufficient to support a claim for enhanced damages?
- A secondary technical question may focus on definitional scope: Does the "concave inner face" of the accused product's shroud, as depicted in the complaint, meet the specific geometric limitation of Claim 1 of the '663 Patent, particularly as the specification links the term to the convexity of a standard beverage can?