DCT
1:23-cv-05335
NxtGen Toys LLC v. ZipString LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: NxtGen Toys, LLC (Arizona)
- Defendant: ZipString, LLC (Georgia)
- Plaintiff’s Counsel: Polsinelli PC
- Case Identification: 1:23-cv-05335, N.D. Ga., 11/20/2023
- Venue Allegations: Venue is asserted based on Defendant ZipString's principal place of business being located in the Northern District of Georgia.
- Core Dispute: Plaintiff seeks a declaratory judgment that its "Loop Lasso" toy products do not infringe Defendant’s patent related to string shooting devices.
- Technical Context: The technology involves handheld devices that propel a continuous loop of string, employing specific aerodynamic principles to make the string appear to float in the air.
- Key Procedural History: This declaratory judgment action was initiated after the patent holder, ZipString, filed a complaint through the Amazon Patent Evaluation Express (APEX) program, accusing NxtGen Toys of patent infringement. This accusation created the actual controversy underlying this lawsuit.
Case Timeline
| Date | Event |
|---|---|
| 2021-11-18 | '774 Patent Priority Date |
| 2023-06-13 | '774 Patent Issue Date |
| 2023-10-27 | ZipString files APEX complaint against NxtGen Toys |
| 2023-10-31 | NxtGen Toys receives notice of APEX complaint |
| 2023-11-20 | Complaint for Declaratory Judgment Filed |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 11,674,774, “STRING SHOOTING DEVICE,” issued June 13, 2023.
- The Invention Explained:
- Problem Addressed: The patent addresses the challenge of propelling a flexible member like a string, which inherently tends to succumb to gravity over short distances. (’774 Patent, Background, col. 1:21-27).
- The Patented Solution: The invention uses a specially designed string with a "fuzzy" or textured surface, comprising a "plurality of fibers extending away from the axis." When this string is propelled at high speed by a set of wheels, these fibers increase air friction, creating a "turbulent air boundary layer." This boundary layer generates an aerodynamic lift force on the portion of the string loop traveling away from the device, counteracting gravity and causing the string to appear to float or hover. (’774 Patent, col. 4:17-33, Fig. 5).
- Technical Importance: This application of aerodynamic principles to a simple string loop creates a visually "stunning" effect that "defies conventional logic," transforming the device's output from a simple arc into a sustained, floating shape. (’774 Patent, col. 7:8-13).
- Key Claims at a Glance:
- The complaint alleges infringement of "one or more claims" without specifying which ones (Compl. ¶26). The lead independent claims are:
- Independent Claim 1: An apparatus claim for a string shooting device, the elements of which include:
- A body
- A housing attached to the body
- A pair of wheels, with at least one being a driven wheel
- A string comprising a surface texture configured to increase air friction, wherein the string includes a "plurality of fibers extending away from the axis"
- Independent Claim 16: A second apparatus claim for a string shooting device, the elements of which include:
- A body
- A housing attached to the body and defining a "loading slot"
- A pair of wheels, with the loading slot "disposed at least partially over at least one" wheel
- A looped string with a "surface texture configured to increase air friction"
- The complaint does not explicitly reserve the right to assert dependent claims but seeks a declaration of non-infringement for "any valid claim." (Compl. ¶31).
III. The Accused Instrumentality
- Product Identification: The accused products are NxtGen Toys’ "Loop Lasso" products, identified in the complaint by several Amazon Standard Identification Numbers (ASINs). (Compl. ¶¶15-20).
- Functionality and Market Context: The "Loop Lasso" is a handheld, motorized toy that propels a continuous loop of string. The complaint includes several images of the product, its packaging, and various colors of string. (Compl. ¶¶16, 17). One image depicts the Loop Lasso in use, projecting a glowing green string that forms a stable, floating loop in the air. (Compl. ¶19). The dispute's origin in an Amazon APEX complaint indicates that the product is sold in the Amazon marketplace, where it competes with the patent holder's product. (Compl. ¶10).
IV. Analysis of Infringement Allegations
As this is a complaint for declaratory judgment of non-infringement, it does not contain a detailed breakdown of the patent holder’s infringement theory. The tables below outline the core elements of the asserted independent claims and identify the corresponding features of the accused "Loop Lasso" product as depicted in the complaint.
’774 Patent Infringement Allegations (Claim 1)
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a body; a housing attached to the body; a pair of wheels, wherein at least one of the pair of wheels is a driven wheel | The "Loop Lasso" product is a handheld device that contains a mechanism to propel a string. | ¶19 | col. 12:13-19 |
| a string, wherein the string comprises a surface texture configured to increase air friction in response to the string being propelled through air by the pair of wheels | The accused product is sold with and operates using spools of string, which form a loop when propelled by the device. | ¶16 | col. 12:20-25 |
| wherein the string defines an axis along which the string extends, and wherein the string comprises a plurality of fibers extending away from the axis | The complaint's images show a braided or woven string. The specific microstructure of this string is not detailed. | ¶16 | col. 12:26-29 |
’774 Patent Infringement Allegations (Claim 16)
| Claim Element (from Independent Claim 16) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a housing attached to the body and defining a loading slot | The "Loop Lasso" device has an opening through which the string loop is engaged with the internal propelling mechanism. The geometry of this opening is not detailed. | ¶19 | col. 14:2-3 |
| a pair of wheels, wherein at least one of the pair of wheels is a driven wheel, wherein the loading slot is disposed at least partially over at least one of the pair of wheels | The device contains an internal motorized wheel mechanism to drive the string loop. | ¶19 | col. 14:4-8 |
| a looped string, wherein the looped string comprises a surface texture configured to increase air friction | The product uses a looped string, which appears to be of a woven or braided construction based on product imagery. | ¶16 | col. 14:9-13 |
Identified Points of Contention:
- Technical Question: The central factual dispute for Claim 1 will likely be whether the string used with the "Loop Lasso" has a "plurality of fibers extending away from the axis." The patent suggests this requires a specific "fuzzy" texture created by, for example, abrading a core string. A court may need to determine if the accused product's standard braided string meets this structural requirement or is technically distinct.
- Scope Question: For Claim 16, a key issue may be the scope of the term "loading slot." The patent specification describes a specific "oblique loading slot" that is offset from the operational path of the string. (’774 Patent, col. 8:51-57; col. 11:65-col. 12:1). The question will be whether the term is limited to this specific geometry or can be construed more broadly to read on the string-loading aperture of the "Loop Lasso," whose specific design is not evident from the complaint.
V. Key Claim Terms for Construction
The Term: "a plurality of fibers extending away from the axis" (Claim 1)
- Context and Importance: This term is the core of the asserted invention, defining the specific string structure that allegedly generates aerodynamic lift. The infringement analysis for Claim 1 will likely depend entirely on whether the accused string is found to have this feature.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes the string in general terms as having "high surface area derived from threads, fibers or texture which radiate out from the surface" and can be described as "fuzzy." (’774 Patent, col. 4:14-17). This language could support a construction that covers any string with a non-smooth, friction-increasing surface.
- Evidence for a Narrower Interpretation: The patent also discloses creating the feature by "abrading a surface" to "tear or wear small fibers from a core of the string." (’774 Patent, col. 8:5-9). This could support a narrower construction requiring distinct, hair-like fibers protruding from a central string body, as opposed to the inherent texture of a simple braided cord.
The Term: "loading slot" (Claim 16)
- Context and Importance: This structural term is central to the infringement analysis of Claim 16. Practitioners may focus on this term because if it is construed narrowly, it could provide a path to non-infringement for that claim regardless of the string's properties.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The term itself could be argued to encompass any aperture in the housing through which a string is loaded.
- Evidence for a Narrower Interpretation: The specification provides a highly detailed description of a specific embodiment, the "oblique loading slot 101," which is "offset from the gap defined between the pair of wheels" and is set at a specific angle (preferably 117 degrees) to facilitate loading while preventing accidental detachment. (’774 Patent, col. 8:51-61; col. 11:19-28). This detailed disclosure may be used to argue that the term "loading slot" is limited to a structure with these specific functional and geometric characteristics.
VI. Other Allegations
- Indirect Infringement: The complaint makes a general denial of inducing or contributing to the alleged infringement of the ’774 patent. (Compl. ¶28).
- Willful Infringement: While the complaint does not raise willfulness, it establishes that NxtGen Toys had pre-suit knowledge of the ’774 patent and ZipString's infringement allegations as of October 31, 2023, the date it received notice of the APEX complaint. (Compl. ¶13). This fact would be central to any subsequent willfulness counterclaim filed by ZipString.
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of structural identity: Does the string sold with the accused "Loop Lasso" product possess the "plurality of fibers extending away from the axis" required by Claim 1, or is its braided texture fundamentally different from the "fuzzy," abraded-fiber structure described in the patent's specification? The resolution will likely require expert testimony and microscopic examination of the respective strings.
- The case may also turn on a question of definitional scope: Will the term "loading slot" in Claim 16 be construed broadly to mean any opening for inserting the string, or will it be limited by the patent's detailed description to the specific offset, angled geometry of the "oblique loading slot" embodiment? The outcome of this construction could determine infringement of an entire set of claims.