DCT

1:22-cv-05578

The 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-05578, N.D. Ill., 10/11/2022
  • Venue Allegations: Venue is asserted on the basis that Defendants operate interactive e-commerce stores that directly target and conduct business with consumers in Illinois, including accepting payment in U.S. dollars and shipping products into the district.
  • Core Dispute: Plaintiff alleges that Defendants’ online sales of certain blender products infringe two of Plaintiff's design patents and one utility patent related to vacuum blender technology.
  • Technical Context: The dispute centers on vacuum blenders, a type of small kitchen appliance that removes air from the blending container prior to operation to reduce oxidation of ingredients, thereby preserving nutrients and improving texture.
  • Key Procedural History: The complaint is filed against a schedule of unnamed ("John Doe") defendants, who are alleged to be operators of online e-commerce stores based primarily in China. The complaint describes tactics allegedly used by these operators to conceal their identities, such as using false registration information and operating multiple storefronts, which is a common feature of litigation aimed at combating online counterfeit or infringing goods.

Case Timeline

Date Event
2017-01-09 ’208 Patent Priority Date (Provisional Application)
2017-06-22 ’878 and ’444 Patent Priority Date (Application Filing)
2018-12-04 ’878 Patent Issued
2019-06-18 ’444 Patent Issued
2020-02-11 ’208 Patent Issued
2022-10-11 Complaint Filing Date

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

U.S. Design Patent No. D851,444 - "Vaccum Blender Base", issued June 18, 2019

The Invention Explained

  • Problem Addressed: The patent addresses the need for a new, original, and ornamental design for a vacuum blender base (D851,444 Patent, Claim).
  • The Patented Solution: The patent protects the specific visual appearance of a blender base. The claimed design consists of a main lower body that houses the controls, with an integrated C-shaped structure featuring an arm that extends up and over the area where a blender container would sit (’444 Patent, Fig. 1). The design includes the particular proportions of the base, the shape of the control panel recess, and the profile of the overhanging arm, which create a distinct overall visual impression (’444 Patent, Figs. 1-7). This patent is a divisional of the application that resulted in the ’878 Patent.
  • Technical Importance: In the competitive small appliance market, a unique and recognizable product design can be a significant commercial asset, distinguishing a product from its competitors.

Key Claims at a Glance

  • The patent contains a single claim for "The ornamental design for a vacuum blender base, as shown and described" (’444 Patent, Claim).

U.S. Design Patent No. D834,878 - "Vacuum Blender Base", issued December 4, 2018

The Invention Explained

  • Problem Addressed: This patent, like the ’444 Patent, is directed at creating a new, original, and ornamental design for a vacuum blender base (D834,878 Patent, Claim).
  • The Patented Solution: The ’878 Patent claims an ornamental design for a blender base that is visually similar to the design in the ’444 Patent, sharing the overall configuration of a base with an overhanging arm (’878 Patent, Fig. 1). The design claimed in the ’878 Patent is the parent design to the divisional ’444 Patent. The figures in the two patents show subtle variations in proportion and surface details, and the scope of each patent is defined by its own set of drawings.
  • Technical Importance: As with the ’444 Patent, the design provides a unique product appearance intended to be a source of brand identity and market differentiation.

Key Claims at a Glance

  • The patent contains a single claim for "The ornamental design for a vacuum blender base, as shown and described" (’878 Patent, Claim).

U.S. Patent No. 10,556,208 - "Vacuum Blender", issued February 11, 2020

  • Technology Synopsis: The patent addresses the problem of nutrient loss due to oxidation during blending by disclosing a blender with an integrated vacuum system (’208 Patent, col. 1:30-35). The claimed solution is a system where a vacuum pump, housed in the blender base or an attached arm, connects to the container's lid to remove air before the blending motor is activated (’208 Patent, col. 2:15-24).
  • Asserted Claims: The complaint alleges infringement of "one or more claims" but does not specify which claims are asserted, instead referencing an attached claim chart in Exhibit 8C that was not included with the complaint document (Compl. ¶43).
  • Accused Features: The complaint alleges that the accused products sold by Defendants incorporate the elements of the claimed vacuum blender apparatus (Compl. ¶43).

III. The Accused Instrumentality

Product Identification

  • The accused instrumentalities are blenders ("Infringing Products") allegedly manufactured, imported, offered for sale, and sold by the Defendants (Compl. ¶35).

Functionality and Market Context

  • The complaint alleges Defendants operate e-commerce stores on platforms such as banggood.com, newegg.com, and walmart.com, as well as their own websites, to sell the accused blenders to consumers in the United States (Compl. ¶13). The complaint asserts that these products incorporate the ornamental designs of the ’444 and ’878 Patents and the apparatus claims of the ’208 Patent (Compl. ¶¶41-43). The complaint references screenshots of the accused products in Exhibit 4 and claim charts in Exhibits 8A-C, but these exhibits were not included in the provided document, precluding a direct analysis of the accused products' appearance or functionality.

IV. Analysis of Infringement Allegations

The complaint references claim charts in Exhibits 8A and 8B purporting to show infringement of the ’444 and ’878 design patents, respectively (Compl. ¶¶41-42). As these exhibits were not provided, the following is a summary of the narrative infringement theory.

Narrative Summary of Design Patent Infringement

The complaint alleges that the products sold by Defendants infringe the ’444 and ’878 Patents because they incorporate "each of the design elements claimed" in those patents (Compl. ¶¶41-42). For design patents, the legal test for infringement is the "ordinary observer" test, which asks whether an ordinary observer, giving such attention as a purchaser usually gives, would be deceived into purchasing the accused product, believing it to be the patented design. The complaint’s allegation suggests that the overall visual appearance of the accused blenders is substantially the same as the designs shown in the figures of the ’444 and ’878 Patents.

Identified Points of Contention

  • Visual Similarity: The central question for the design patent claims will be a factual one: Are the accused products' designs substantially the same as the designs claimed in the ’444 and ’878 Patents? This analysis will depend on a side-by-side comparison of the accused products and the patent figures from the perspective of an ordinary observer familiar with the prior art.
  • Scope Questions: A potential issue is whether any differences between the accused products and the patented designs are minor enough to be overlooked by an ordinary observer, or if they are significant enough to create a different overall visual impression. The determination of infringement will hinge on the overall similarity, not on a simple tally of minor differences and similarities.

No probative visual evidence provided in complaint.

V. Key Claim Terms for Construction

This section is not applicable. The two patents receiving full analysis are design patents, which are claimed through their drawings rather than textual limitations. Therefore, there are no claim terms that require construction.

VI. Other Allegations

  • Indirect Infringement: The prayer for relief seeks to enjoin Defendants from "aiding, abetting, contributing to, or otherwise assisting anyone in" infringing the asserted patents (Prayer for Relief ¶¶ A.b, A.d, A.f). However, the body of the complaint does not plead specific facts to support a claim for either induced or contributory infringement, such as allegations regarding instructional materials or the sale of a material component of the invention.
  • Willful Infringement: The complaint alleges that Defendants' infringement was and continues to be willful (Compl. ¶¶36, 48, 51, 54). The basis for this allegation appears to be the assertion that Defendants are "working in active concert to knowingly and willfully" sell infringing products and that they operate in a manner designed to evade enforcement (Compl. ¶35). The complaint does not allege pre-suit notice was provided to the Defendants.

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

  1. Evidentiary Development: A threshold issue, common in cases against online sellers, will be the Plaintiff's ability to identify the anonymous Defendants, effect service, and obtain the discovery necessary to prove the specific acts of infringement, the volume of sales, and the precise design of the accused products. The structure of the case suggests a primary goal may be to obtain an injunction to de-list infringing products from e-commerce platforms.
  2. Design Infringement Scope: For the asserted design patents, the core question will be one of visual identity: are the accused blender bases "substantially the same" as the designs depicted in the ’444 and ’878 Patents in the eyes of an ordinary observer? The outcome will depend entirely on a visual comparison once the accused products are properly identified.
  3. Utility Patent Infringement Mechanics: For the ’208 utility patent, a key question will be one of technical correspondence: do the accused products practice every element of an asserted claim, specifically the claimed architecture of a base, an overhanging arm, and a vacuum system that engages and draws air through the container's lid? Proving this will require a detailed technical analysis of the accused products' internal and external structure and operation.