DCT

1:24-cv-23681

Foreo Inc v. Individuals Corps Ltd

Log In

I. Executive Summary and Procedural Information

  • Parties & Counsel:
    • Plaintiff: Foreo Inc. (Nevada)
    • Defendant: The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A (Primarily People's Republic of China)
    • Plaintiff’s Counsel: Boies Schiller Flexner LLP
  • Case Identification: 1:24-cv-23681, S.D. Fla., 09/25/2024
  • Venue Allegations: Plaintiff alleges venue is proper because Defendants direct business activities toward Florida and conduct business with consumers in the district through interactive e-commerce stores, offering to sell and ship the accused products into the district.
  • Core Dispute: Plaintiff alleges that numerous e-commerce store operators sell toothbrushes and skin cleansing devices that infringe four of its utility patents and a portfolio of its design patents.
  • Technical Context: The technology relates to personal hygiene devices, specifically powered toothbrushes and facial cleansers that use soft polymer "touch-points" and vibrations for cleaning, a significant segment of the consumer beauty and wellness market.
  • Key Procedural History: The complaint does not mention prior litigation, licensing history, or administrative patent challenges involving the asserted patents. The pleading frames the action as part of a broader effort to combat online sellers of allegedly infringing products who conceal their identities.

Case Timeline

Date Event
2013-01-07 Earliest Priority Date for ’065, ’788, ’073 Patents
2013-12-20 Earliest Priority Date for ’956 Patent
2017-02-28 U.S. Patent No. 9,578,956 Issues
2018-02-13 U.S. Patent No. 9,889,065 Issues
2019-07-16 U.S. Patent No. 10,349,788 Issues
2023-04-25 U.S. Patent No. 11,633,073 Issues
2024-09-25 Complaint Filing Date

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

U.S. Patent No. 9,578,956: Toothbrush with Biofilm-Removing Touch Points (Issued Feb. 28, 2017)

The Invention Explained

  • Problem Addressed: The patent's background section describes conventional nylon-bristle toothbrushes as potentially damaging to gum tissue, ineffective at stimulating circulation, and limited in their ability to remove thin biofilm from teeth surfaces (US9578956B2, col. 1:33-55).
  • The Patented Solution: The invention is a toothbrush that replaces traditional bristles with "bristle touch-points" made from a soft polymer material like silicone. These touch-points are described as single, solid structures that, when vibrated by a motor, provide a "tapping motion" to clean teeth and stimulate gums with less abrasive action than conventional scrubbing (US 9,578,956 B2, col. 2:1-14). The use of hygienic, non-absorbent silicone is also presented as an advantage over nylon bristles ('956 Patent, col. 6:45-53).
  • Technical Importance: The claimed technology represents an alternative to the long-standing use of abrasive nylon filaments in oral care, instead proposing a gentler, pulsation-based cleaning mechanism using soft, hygienic polymer structures ('956 Patent, col. 1:40-55).

Key Claims at a Glance

  • The complaint asserts independent claim 1 ('956 Patent, col. 11:36-51).
  • Essential elements of claim 1 include:
    • A toothbrush device with a head, neck, and handle.
    • The head has a front surface with "bristle touch-points" arranged in rows, with each touch-point being a "single solid elongate structure."
    • The head's key components (apex, base, front surface, bristle touch-points, and back surface) comprise a "single piece of polymer material."
    • A motor is housed within the handle to create vibrations in the head.
  • The complaint does not explicitly reserve the right to assert dependent claims for this patent.

U.S. Patent No. 9,889,065: Skin Cleanser (Issued Feb. 13, 2018)

The Invention Explained

  • Problem Addressed: The patent identifies shortcomings in manual skin cleaning, which can fail to adequately apply lotions or remove contaminants, and notes that existing cleaning devices can be abrasive to the skin (US9889065B2, col. 1:21-34).
  • The Patented Solution: The invention is a handheld skin cleansing device with a soft, elastic exterior, such as silicone, featuring multiple textured surfaces composed of "touch-points." An internal oscillating motor generates pulsations that are transmitted through the touch-points to the user's skin, providing a deep, non-abrasive cleaning action intended to remove contaminants and stimulate blood flow ('065 Patent, col. 2:4-15; Abstract). The device includes distinct zones of touch-points with different diameters, positioned at different locations on the body ('065 Patent, col. 4:26-39).
  • Technical Importance: This technology applies a pulsation-based cleaning method using soft, hygienic materials to facial skincare, offering an alternative to traditional abrasive brushes and manual methods ('065 Patent, col. 2:50-57).

Key Claims at a Glance

  • The complaint asserts independent claim 1 ('065 Patent, col. 9:8-41).
  • Essential elements of claim 1 include:
    • A skin cleanser body with a "substantially flat base configured to stand unaided."
    • The body has a cross-sectional shape that is longer in a first direction than a second.
    • A "silicone exterior covering substantially all of an exterior" of the body.
    • The exterior has a first side with first and second textured areas, comprising first and second sets of touch-points.
    • The second set of touch-points has a smaller diameter than the first set and is disposed closer to the base.
    • The touch-points in both sets have diameters between about 0.5 and 2.5 millimeters.
    • The exterior has a second side with a third textured surface area.
    • An oscillating motor is disposed within the body to produce pulsations.
    • At least one control is disposed on the body to operate the motor.
  • The complaint does not explicitly reserve the right to assert dependent claims for this patent.

Multi-Patent Capsule: U.S. Patent No. 10,349,788 B1, Skin Cleanser (Issued Jul. 16, 2019)

  • Technology Synopsis: This patent addresses the technical problem of skin cleaning methods being either ineffective or abrasive ('788 Patent, col. 1:24-34). The patented solution is a skin cleanser with a body having a flat base allowing it to stand unaided, a silicone exterior, and first and second sides that define distinct textured surface areas with "touch-points" for applying pulsations generated by an internal motor (US10349788B1, Abstract; col. 2:26-40).
  • Asserted Claims: Independent claim 1 is asserted (Compl. p. 15).
  • Accused Features: The complaint accuses skin cleansing devices that feature a silicone body, a flat base, multiple textured surfaces with touch-points, and an internal oscillating motor (Compl. p. 15).

Multi-Patent Capsule: U.S. Patent No. 11,633,073 B2, Skin Cleanser (Issued Apr. 25, 2023)

  • Technology Synopsis: This patent also addresses the problem of skin cleaning being harsh or ineffective ('073 Patent, col. 1:30-38). The invention claims a skin cleanser with a body having a specific cross-sectional shape (longer in one direction than another), a silicone exterior with an integrally formed textured surface area comprising touch-points, a motor to produce pulsations, and a flat base configured to stand on its own (US11633073B2, Abstract; col. 2:40-50).
  • Asserted Claims: Independent claim 1 is asserted (Compl. p. 16).
  • Accused Features: The complaint accuses skin cleansing devices having a silicone body with a textured surface, an internal motor, and a flat, stand-able base (Compl. pp. 16-17).

III. The Accused Instrumentality

  • Product Identification: The accused products are identified generally as "Infringing Products" and depicted in the complaint as powered toothbrushes and facial cleansing devices (Compl. ¶3, pp. 12-17).
  • Functionality and Market Context: Based on images in the complaint, the accused toothbrushes are handheld devices with a handle containing a motor and a head with what appear to be silicone projections instead of traditional bristles (Compl. p. 12). The accused skin cleansers are palm-sized devices fully encased in silicone, featuring surfaces with various textures of small projections. An image of an accused skin cleanser advertises "Acoustic vibration efficient cleaning," indicating the devices use pulsations for their function (Compl. p. 13). The complaint alleges these products are "inferior imitations" sold through a network of online stores on platforms like Amazon, Temu, and Walmart, suggesting they compete in the mass-market consumer space (Compl. ¶3-4).

IV. Analysis of Infringement Allegations

9,578,956 Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A tooth brush device comprising: a head comprising: an apex, a base opposite the apex, a front Surface with bristle touch-points arranged along rows... The accused product is a toothbrush device with a head containing rows of bristle-like structures. An image shows the accused device, which is a toothbrush with a handle and a head (Compl. p. 12). ¶55 col. 3:5-12
each of a plurality of the bristle touch-points being a single solid elongate structure extending from the head... The bristle touch-points on the accused product appear to be single, solid projections made of a polymer material, as depicted in the product photograph (Compl. p. 12). ¶55 col. 3:13-21
wherein the apex, base, front surface, bristle touch points and back Surface comprise a single piece of polymer material; The complaint’s photograph suggests the head of the accused product is a unitary piece of polymer, though it provides no information on internal construction (Compl. p. 12). ¶55 col. 4:50-53
a neck coupled to the base of head; a handle coupled to the head via the neck; and a motor housed within the handle... The accused product has a handle, a neck, and a head, and is a powered device implying the presence of an internal motor, as shown in the product photograph (Compl. p. 12). ¶55 col. 2:5-14
  • Identified Points of Contention:
    • Structural Questions: A key question will be whether the head of the accused device is in fact a "single piece of polymer material," as required by the claim. The infringement allegation relies solely on external appearance, which may not reveal the underlying construction.
    • Scope Questions: The analysis may focus on whether the projections on the accused product meet the definition of a "single solid elongate structure," a term intended to distinguish from conventional multi-filament bristles.

9,889,065 Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
a substantially flat base configured to stand unaided on a substantially flat surface... The accused product is depicted with a flat bottom surface, suggesting it is designed to stand on its own. The product is shown standing upright in a promotional image (Compl. p. 13). ¶55 col. 5:58-61
a silicone exterior covering substantially all of an exterior of said skin cleanser body... The accused product is shown to be fully encased in what appears to be a silicone material (Compl. p. 14). The product is marketed as being made of "Food grade silicone" (Compl. p. 14). ¶55 col. 2:33-38
a first side defining first and second textured surface areas...comprising a first set of touch-points and a second textured surface area comprising a second set of touch-points... The product photograph shows a front surface with an upper zone of thicker touch-points and a lower zone of thinner touch-points (Compl. p. 13). ¶55 col. 4:26-34
each touch-point of the second set...having a diameter that is smaller than a diameter of each touch-point of the first set...the second set of touch-points being disposed closer to the base than the first set... Visual inspection of the accused product photograph suggests the lower touch-points are thinner and closer to the base than the upper touch-points (Compl. p. 13). ¶55 col. 4:26-39
a first oscillating motor disposed within said skin cleanser body configured to produce pulsations... The accused product is advertised as providing "Acoustic vibration efficient cleaning" and "7500 vibrations per minute," which implies an internal oscillating motor (Compl. p. 13, 14). ¶55 col. 2:40-45
  • Identified Points of Contention:
    • Technical Questions: The claim includes specific dimensional requirements (e.g., diameters between 0.5-2.5 mm, one set of touch-points being "smaller" than another). The complaint provides only photographs and marketing materials, raising the question of what evidence will be used to prove these precise technical limitations are met.
    • Scope Questions: The term "substantially flat base" may be a point of contention if the accused product has any curvature on its bottom surface, raising the question of how much deviation from perfectly flat is permissible.

V. Key Claim Terms for Construction

For the ’956 Patent

  • The Term: "single piece of polymer material"
  • Context and Importance: This term is critical because it defines the unitary construction of the toothbrush head. If an accused device's head is assembled from multiple pieces or materials, it may not infringe. Practitioners may focus on this term to distinguish the claimed invention from multi-part brush heads.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent does not appear to define the term explicitly, potentially allowing for an interpretation that a head molded as one piece, even with co-molded materials of the same polymer class, could be considered a "single piece."
    • Evidence for a Narrower Interpretation: The claim language "wherein the apex, base, front surface, bristle touch-points and back Surface comprise a single piece" could be argued to require that all listed features are formed from one monolithic, homogenous polymer block, excluding multi-part assemblies or overmolding processes.

For the ’065 Patent

  • The Term: "diameter...is between about 0.5 millimeters and 2.5 millimeters"
  • Context and Importance: This numerical range is a specific limitation on the size of the touch-points. Infringement will depend on whether the accused product's features fall within this range. The use of "about" makes the precise boundaries of the claim a central issue for claim construction.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The use of the word "about" explicitly signals that the claimed range is not absolute and should encompass values reasonably close to the stated 0.5 and 2.5 mm endpoints. The specification refers to "rounded touch-points of 0.5 to 2.5 mm of diameter" without the modifier "about," but claim language typically governs ('065 Patent, col. 1:40-41).
    • Evidence for a Narrower Interpretation: A defendant may argue that "about" should be interpreted narrowly, particularly if the prior art discloses similar structures outside but close to the claimed range. The patent's specification provides specific examples, such as thicker touch-points between 1.5mm and 2.5mm and thinner ones between 0.5mm and 1.5mm, which could be used to argue against a broad reading of "about" ('065 Patent, col. 4:35-39).

VI. Other Allegations

  • Indirect Infringement: The complaint makes a conclusory allegation of indirect infringement (Compl. ¶54). However, it does not plead specific facts to support the knowledge and intent elements required for a claim of induced infringement, nor does it identify a specific component for a claim of contributory infringement.
  • Willful Infringement: Plaintiff alleges that Defendants' infringement "has been and continues to be willful" (Compl. ¶57). The complaint asserts that Defendants have "knowingly and willfully used" the patents in connection with their commercial activities (Compl. ¶46). The pleading does not, however, allege specific facts demonstrating that Defendants had pre-suit knowledge of the asserted patents.
  • Design Patent Infringement: The second cause of action alleges infringement of a portfolio of eleven design patents (Compl. ¶59-61). The complaint provides a side-by-side visual comparison of figures from unspecified design patents and images of two accused products to support its claim (Compl. pp. 18-19).

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

  • Evidentiary Sufficiency: The complaint relies heavily on product photographs to allege infringement of claims with precise structural and dimensional limitations. A core question for the case will be one of evidentiary proof: can Plaintiff produce technical evidence beyond these images, such as through product teardowns and measurements, to demonstrate that the accused products meet specific claim requirements like being a "single piece of polymer material" or having touch-points within a diameter range of "about 0.5 millimeters and 2.5 millimeters"?
  • Jurisdiction and Enforcement: The case targets a large number of foreign e-commerce operators identified on a sealed schedule. A primary procedural issue will be one of jurisdiction and practicality: can Plaintiff successfully establish personal jurisdiction over these disparate, foreign entities, and if a judgment is obtained, can it be effectively enforced against them?
  • Definitional Scope: The dispute may turn on the construction of key claim terms. A central legal question will be one of definitional scope: for example, can the term "single solid elongate structure" in the '956 patent be construed to read on the accused toothbrush's bristles, and how broadly will the court interpret the dimensional ranges qualified by "about" in the '065 patent?