DCT

1:22-cv-05574

NuWave LLC v. T Schedule A

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
    • Plaintiff: NuWave, LLC (Illinois)
    • Defendant: The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on the Attached Schedule A (People's Republic of China)
    • Plaintiff’s Counsel: Bishop Diehl & Lee, Ltd.
  • Case Identification: 1:22-cv-05574, N.D. Ill., 10/11/2022
  • Venue Allegations: Venue is predicated on Defendants targeting consumers in the United States, including Illinois, through the operation of interactive commercial e-commerce stores that ship products to the district.
  • Core Dispute: Plaintiff alleges that blenders sold by numerous, unnamed foreign entities through various online marketplaces infringe a U.S. design patent covering the ornamental appearance of a blender base.
  • Technical Context: The patent-in-suit relates to the aesthetic design of small kitchen appliances, a consumer market where distinctive product appearance can be a significant commercial driver.
  • Key Procedural History: This case is a "Schedule A" action, a procedural mechanism often used to target numerous, anonymous online sellers who are allegedly part of a coordinated infringement network. The complaint alleges that Plaintiff's commercial products are marked with the patent number, which could be relevant to notice for damages calculations.

Case Timeline

Date Event
2017-06-22 U.S. Patent No. D851,444 Priority Date
2019-06-18 U.S. Patent No. D851,444 Issue Date
2022-10-11 Complaint Filing Date

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

U.S. Design Patent No. D851,444 - "VACCUM BLENDER BASE"

  • Patent Identification: U.S. Design Patent No. D851,444, "VACCUM BLENDER BASE", issued June 18, 2019.

The Invention Explained

  • Problem Addressed: While not a "problem" in the utilitarian sense, the patent addresses the need for a new, original, and ornamental design for an article of manufacture—in this case, a blender base (Compl. ¶11). Such designs serve to distinguish a product in a competitive marketplace.
  • The Patented Solution: The patent protects the specific visual appearance of a blender base as depicted in its seven figures ('444 Patent, Figs. 1-7). The claimed design features a blocky, rectangular base with a distinctively angled front control panel, a large central dial flanked by smaller buttons, and specific surface contours. The patent explicitly disclaims the upright arm and top mechanism by rendering them in broken lines, indicating they are for environmental context only and not part of the protected design ('444 Patent, p. 2, "The broken lines... form no part of the claimed design.").
  • Technical Importance: The patented design provides a unique aesthetic and trade dress for Plaintiff's products, which the complaint identifies as the NuWave Moxie Blender and NuWave Infinity Blender, distinguishing them from other offerings in the small appliance market (Compl. ¶12).

Key Claims at a Glance

  • The complaint asserts the single claim of the '444 Patent.
  • The claim protects: "The ornamental design for a vacuum blender base, as shown and described" ('444 Patent, "CLAIM"). In a design patent, the "elements" of the claim are the visual features of the article as depicted in the solid lines of the patent drawings.

III. The Accused Instrumentality

Product Identification

  • Unlicensed blenders offered for sale, sold, and imported by the Defendants (Compl. ¶16). These products are allegedly sold through online marketplaces such as banggood.com, newegg.com, and walmart.com, as well as Defendants' own interactive websites (Compl. ¶7).

Functionality and Market Context

  • The complaint describes the accused instrumentalities as blenders that incorporate the patented design (Compl. ¶16, ¶29). It further alleges that Defendants operate sophisticated e-commerce stores designed to appear as authorized retailers, thereby confusing consumers into believing they are purchasing genuine NuWave products (Compl. ¶19, ¶28).

IV. Analysis of Infringement Allegations

The complaint references a claim chart in its Exhibit 2 to detail its infringement allegations; however, this exhibit was not provided with the complaint for this analysis (Compl. ¶29, ¶35). The infringement theory is therefore summarized from the complaint's narrative allegations.

The complaint asserts that the products sold by Defendants directly infringe the '444 Patent because they "incorporate[] each of the design elements claimed" ('444 Patent, Compl. ¶29). The legal test for design patent infringement is whether, in the eye of an ordinary observer, the resemblance between the patented design and the accused design is such as to deceive the observer into purchasing one supposing it to be the other. The complaint alleges that the accused products are sufficiently similar to the patented design to cause such confusion and that Defendants created their products to appear as "genuine products" (Compl. ¶28). No probative visual evidence provided in complaint.

Identified Points of Contention

  • Scope Questions: The primary legal question regarding the patent's scope will be the strict separation between the claimed features (solid lines) and the unclaimed environmental structure (broken lines). The infringement analysis must be limited to the ornamental design of the blender base, as the upright arm is explicitly disclaimed and cannot be a basis for an infringement finding ('444 Patent, p. 2).
  • Technical Questions: The central factual question for the court will be whether an ordinary observer, conducting a side-by-side comparison, would find the accused blender bases to be substantially the same as the design claimed in the '444 Patent. The case will depend on the visual evidence presented to establish this similarity.

V. Key Claim Terms for Construction

In a design patent, there are typically no "terms" to construe in the same manner as a utility patent. The claim scope is defined by the drawings. The central interpretive issue is the visual scope of the design itself.

  • The "Term": The scope of "the ornamental design... as shown" ('444 Patent, "CLAIM").
  • Context and Importance: Practitioners may focus on this issue because the outcome of the case hinges entirely on the comparison between the accused products and the specific visual features depicted in the patent's drawings. The distinction between the claimed solid-line features and the disclaimed broken-line environment is critical to a proper infringement analysis.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party might argue for focusing on the "overall visual impression" created by the design, but this impression is still defined and limited by what is actually shown in the drawings.
    • Evidence for a Narrower Interpretation: The patent provides a clear and explicit disclaimer: "The broken lines showing of the appended figures are for purposes of illustrating environmental structures and form no part of the claimed design" ('444 Patent, p. 2). This statement provides dispositive evidence that the scope of protection is strictly limited to the blender base depicted in solid lines.

VI. Other Allegations

  • Indirect Infringement: The prayer for relief requests an injunction against "aiding, abetting, contributing to, or otherwise assisting anyone in infringing" the '444 Patent (Compl., Prayer for Relief ¶A.b.). The body of the complaint alleges Defendants are "working in active concert" to infringe, which supports a theory of joint direct infringement among the network of sellers (Compl. ¶25).
  • Willful Infringement: The complaint alleges that Defendants' infringement is and has been "knowingly and willfully" committed (Compl. ¶25, ¶32). This allegation is supported by claims that Defendants are sophisticated online operators who use aliases and other tactics to evade enforcement, suggesting knowledge of their infringing activities (Compl. ¶21-23).

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

  • A central procedural question will be one of jurisdiction and enforcement: Can the Plaintiff successfully use the "Schedule A" mechanism to identify the anonymous online sellers, establish personal jurisdiction, and enforce any resulting judgment against entities alleged to be operating from foreign countries like the People's Republic of China?
  • The core substantive issue will be one of visual comparison: From the perspective of an ordinary observer, is the ornamental design of the accused blender bases "substantially the same" as the specific design claimed in the '444 Patent, focusing only on the solid-line features and properly disregarding any similarities in the disclaimed portions?
  • A key damages question will be one of intent and notice: Can Plaintiff produce evidence to support its claim of willful infringement, and can it establish that Defendants had actual or constructive notice of the '444 Patent—for which Plaintiff's alleged patent marking on its own products may be relevant (Compl. ¶13)?