Essity Hygiene Health Ab v. First Quality Products Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Essity Hygiene and Health AB (Sweden); Essity HMS North America Inc. (Delaware)
  • Defendant: First Quality Products, Inc. (New York); First Quality Retail Services, LLC (Delaware); First Quality Consumer Products, LLC (Delaware); First Quality Products, LLC (Delaware); First Quality Enterprises, LLC (Delaware)
  • Plaintiff’s Counsel: Farnan LLP
• Case Identification: 1:24-cv-00374, D. Del., 03/22/2024
• Venue Allegations: Venue is alleged to be proper in the District of Delaware because several Defendant entities are organized under Delaware law and all Defendants are alleged to have committed acts of infringement in the district, including marketing and selling the accused products to Delaware residents.
• Core Dispute: Plaintiff alleges that Defendant’s adult incontinence products, which feature a "MaxSorb+ Zone," infringe a patent related to multi-component absorbent structures designed for rapid fluid intake.
• Technical Context: The technology concerns disposable hygienic products, where managing sudden, high-volume fluid gushes without side leakage is a critical performance and commercial challenge.
• Key Procedural History: The complaint notes a history of litigation between the parties that reached the U.S. Supreme Court on an unrelated patent issue. Plaintiff also alleges that Defendant copied its commercial product, the "Tena Discreet with instaDRY® zone," which is asserted to be an embodiment of the patent-in-suit.

Case Timeline

Date	Event
2011-06-28	'138 Patent Priority Date
2016-04-12	U.S. Patent No. 9,308,138 Issued
2022-04-01	Accused Prevail Plus products with MaxSorb+ Zone Commercially Introduced (approx.)
2024-03-22	Complaint Filed

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

U.S. Patent No. 9,308,138 - "Absorbent Article Having Intake Structure"

The Invention Explained

• Problem Addressed: The patent’s background section describes a persistent problem with absorbent articles like incontinence pads: side leakage that occurs before the product’s full absorption capacity is used (’138 Patent, col. 1:28-34). This is often caused when a sudden gush of fluid cannot be absorbed quickly enough and flows over the product's edges (’138 Patent, col. 1:36-40).
• The Patented Solution: The invention proposes a multi-component absorbent core to solve this problem. A top absorbent layer has an opening, or "well," that allows fluid to pass directly to a specialized "fluid flow control structure" below (’138 Patent, col. 2:10-18). This structure is designed to rapidly accept, temporarily hold, and distribute the fluid away from the initial point of entry, channeling it toward a second, main absorbent layer underneath. This architecture is intended to manage high-volume intake and prevent fluid from pooling on the surface and leaking (’138 Patent, col. 2:20-35; Fig. 2).
• Technical Importance: This approach addresses the need for an absorbent article that can receive and contain fluid with corresponding speed during sudden high-pressure gushes, a key performance differentiator in the market for such products (’138 Patent, col. 1:45-52).

Key Claims at a Glance

• The complaint asserts at least independent claim 1 (Compl. ¶38).
• The essential elements of independent claim 1 are:
  • An absorbent article with a fluid permeable topsheet, a fluid impermeable backsheet, and an absorbent core between them.
  • The absorbent core itself comprises three components:
    • A "first absorbent layer" with an "opening" passing through it.
    • A "fluid flow control structure."
    • A "second absorbent layer" arranged between the fluid flow control structure and the backsheet.
  • The claim further requires that the "fluid flow control structure" is a specific "layered structure" made of a "non-perforated fibrous polymeric layer" and a "first perforated polymeric layer."
  • Finally, the claim requires a specific spatial relationship: the topsheet must be in "direct contact" with the "fluid flow control structure" through the opening in the first absorbent layer.
• The complaint’s phrasing "at least claim 1" suggests the right to assert other claims, including dependent claims, may be reserved (Compl. ¶38).

III. The Accused Instrumentality

Product Identification

The accused products are First Quality’s "Prevail Plus line of products with MaxSorb+ Zone" (Compl. ¶30).

Functionality and Market Context

The complaint identifies the accused products as adult incontinence pads (Compl. ¶8). It alleges that First Quality markets the "MaxSorb+ Zone" as a "new technology" providing "rapid absorption to help keep skin dry" and claims the products "absorb up to 50% faster" than previous versions (Compl. ¶31). Plaintiff alleges that these products directly compete with its own in the market for adult hygiene products (Compl. ¶49).

IV. Analysis of Infringement Allegations

The complaint alleges that the Prevail Plus products infringe each limitation of at least claim 1 of the ’138 Patent, either literally or under the doctrine of equivalents (Compl. ¶38, ¶44). The complaint states that a preliminary claim chart mapping an exemplary product to the claim is attached as Appendix A; however, this appendix is not included in the publicly filed document (Compl. ¶44).

The narrative theory of infringement centers on the allegation that the "MaxSorb+ Zone" feature in the accused products is a direct copy of the patented invention and performs the role of the claimed "fluid flow control structure" (Compl. ¶30-32). To support this, the complaint provides a side-by-side photographic comparison of the accused product and Plaintiff's own commercial product, which it alleges is an embodiment of the patent, to suggest structural and visual similarity (Compl. p. 6, ¶32).

Identified Points of Contention

• Structural Questions: The infringement analysis will turn on the precise physical construction of the accused "MaxSorb+ Zone." A central question for the court will be whether this zone contains the specific "layered structure comprising a non-perforated fibrous polymeric layer and a first perforated polymeric layer," as required by claim 1 (’138 Patent, col. 14:62-64).
• Relational Questions: A second key factual question is whether the accused product's topsheet is in "direct contact" with its internal absorbent structure through the claimed "opening," as required by the final limitation of claim 1 (’138 Patent, col. 15:1-3). The presence of any intervening layers, such as adhesives or tissues, could be a point of dispute.

V. Key Claim Terms for Construction

The Term: "fluid flow control structure"

• Context and Importance: This term is the central inventive concept recited in the claim. The outcome of the case may depend heavily on whether the accused "MaxSorb+ Zone" falls within the scope of this term.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: Plaintiff may argue the term should be understood by its stated function, which the patent describes as providing "high intake capacity" and promoting fluid distribution away from the wetted area (’138 Patent, col. 2:20-22).
  • Evidence for a Narrower Interpretation: Defendant may argue the term is explicitly defined by the claim itself as being a specific "layered structure comprising a non-perforated fibrous polymeric layer and a first perforated polymeric layer" (’138 Patent, col. 14:62-64). Further, the specification describes specific embodiments, such as using a "high loft material of 20-120 gsm" (’138 Patent, col. 4:50-51), which could be used to argue for a narrower construction.

The Term: "direct contact"

• Context and Importance: This term dictates the required physical interface between the topsheet and the "fluid flow control structure". Infringement hinges on this specific arrangement being present in the accused products. Practitioners may focus on this term because the method of bonding different layers in absorbent articles can often introduce intermediate materials (e.g., adhesives).
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: Plaintiff may point to figures and descriptions where the topsheet "extend[s] down into the cavity" defined by the opening, suggesting that the primary intent is to establish an immediate fluid pathway, which would not be defeated by trace amounts of manufacturing adhesives (’138 Patent, col. 11:58-61; Fig. 2).
  • Evidence for a Narrower Interpretation: Defendant may argue that "direct contact" has a plain and ordinary meaning that forbids any intervening material. If discovery reveals a distinct layer of adhesive or other material between the topsheet and the "MaxSorb+ Zone," Defendant could argue this limitation is not met.

VI. Other Allegations

Indirect Infringement

The complaint makes a passing allegation that Defendants "induce or assist sister companies" in infringement, but it does not contain a separate count for indirect infringement or plead specific facts to support the requisite knowledge and intent (Compl. ¶20).

Willful Infringement

The complaint alleges that infringement has been and continues to be willful (Compl. ¶45). The asserted basis for pre-suit knowledge includes allegations, upon information and belief, that First Quality actively monitors Essity’s patent filings and would have been aware of the ’138 patent during product development (Compl. ¶36). The complaint also cites the parties' prior litigation history and alleges that First Quality’s failure to investigate would constitute willful blindness (Compl. ¶36).

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

The resolution of this case appears to depend on the answers to a few central questions of fact and law:

• A core issue will be one of structural identity: Once the physical construction of the accused "MaxSorb+ Zone" is determined through discovery, does it meet the specific two-layer composition required by the claim's definition of a "fluid flow control structure"?
• A key evidentiary question will be one of physical interface: Does the accused product's topsheet make "direct contact" with its core absorbent structure via the claimed opening, or does an intervening material break the required physical connection?
• Finally, the willfulness claim will raise a question of scienter: What evidence exists to show that Defendant had knowledge of the ’138 patent and its infringement prior to being served with the complaint, particularly in light of the allegation of copying and the parties' litigation history?