DCT
1:25-cv-04436
Zhou v. Partnership Unincorp Associations
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Dan Zhou (Shenzhen, China)
- Defendant: The Partnerships and Unincorporated Associations Identified on Schedule A
- Plaintiff’s Counsel: D&A|RM DeWitty, U.S. Pat. Aty., LLC
- Case Identification: 1:25-cv-04436, N.D. Ill., 04/23/2025
- Venue Allegations: Venue is based on allegations that Defendants operate interactive commercial internet stores that target and conduct business with consumers in the United States, including Illinois.
- Core Dispute: Plaintiff alleges that numerous online retailers are selling "knock-off" products that infringe a U.S. design patent for a sex toy.
- Technical Context: The patent relates to the ornamental design of a personal massager, a product category with a significant e-commerce presence.
- Key Procedural History: The complaint is structured as an action against a large, unidentified group of online sellers, a common strategy to combat diffuse infringement from international e-commerce platforms. The complaint alleges these sellers act in concert and use tactics to conceal their identities, such as using fictitious names and frequently changing online storefronts.
Case Timeline
| Date | Event |
|---|---|
| 2020-07-13 | D911,544 S Patent Application (Priority) Date |
| 2021-02-23 | D911,544 S Patent Issue Date |
| 2025-04-23 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- *U.S. Design Patent No. D911,544 S, "SEX TOY", issued February 23, 2021*
- The Invention Explained:
- Problem Addressed: As a design patent, the patent does not articulate a technical problem. The asserted purpose is to protect a unique ornamental design that provides aesthetic appeal for a consumer product (Compl. ¶6).
- The Patented Solution: The patent protects the specific visual appearance of a sex toy, not its function. The claimed design, as shown in solid lines in the patent's figures, consists of a bulbous, teardrop-shaped body with an outer surface resembling the petals of a rosebud. The front face features a single, round, recessed button, while the top has a circular opening surrounded by stylized petal tips (’544 Patent, FIGS. 1, 3, 7). The patent explicitly states that portions of the drawings shown in broken lines form no part of the claimed design (’544 Patent, Description).
- Technical Importance: The complaint alleges that the product embodying the patented design was the "first to market" and established a "well-earned reputation for quality and innovation" (Compl. ¶7).
- Key Claims at a Glance:
- The patent contains a single claim for "The ornamental design for a sex toy, as shown and described" (’544 Patent, Claim).
- The scope of the claim is defined by the visual appearance of the article as depicted in the solid-line drawings of the patent, including:
- The overall rosebud-like shape of the device body.
- The specific arrangement and curvature of the overlapping "petal" surfaces.
- The placement and design of the circular button on the front face.
- The appearance of the circular opening at the top of the device.
- The Invention Explained:
III. The Accused Instrumentality
- Product Identification: The accused instrumentalities are "knock-off" products sold by Defendants through various online storefronts, which the complaint alleges are infringing copies of Plaintiff's product (Compl. ¶3, 18).
- Functionality and Market Context: The complaint alleges that Defendants sell "the same knockoff products" across numerous "Defendant Internet Stores" (Compl. ¶3). These stores are alleged to use Plaintiff's own product imagery, copied text, and other tactics to appear as legitimate sellers while concealing their true identities (Compl. ¶14). The complaint provides an image of the patented design to represent the article at issue. This image, a perspective view of the rose-shaped toy, is taken from the patent itself and serves as the visual basis for the infringement claim within the complaint (Compl. p.4, FIG.1). The complaint further alleges that the Defendants are a network of infringers who operate in concert to sell these products to consumers in the U.S. (Compl. ¶11).
IV. Analysis of Infringement Allegations
- D911,544 S Infringement Allegations
| Claim Element (from Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a sex toy, as shown and described. | Defendants are alleged to make, use, offer for sale, sell, and/or import "Knockoff products that infringe directly and/or indirectly the ornamental design" claimed in the patent. The complaint alleges these products are the "same" and create a visual impression substantially similar to the patented design. | ¶22 | FIGS. 1-8 |
- Identified Points of Contention:
- Scope Questions: The primary legal and factual question in a design patent case is whether an ordinary observer, familiar with the prior art, would be deceived into purchasing the accused product believing it to be the patented design. The dispute will center on the visual comparison between the accused products and the solid-line drawings of the ’544 Patent.
- Technical Questions: The analysis will not involve technical operation but rather visual comparison. A potential issue may arise regarding the impact of features not claimed in the patent (i.e., those shown in broken lines, such as internal components or the precise configuration of the charging port on the bottom) on the overall visual impression. The complaint also raises the issue of color, stating it "should not be viewed as making one product different from another," which may become a point of argument if the accused products are sold in different colors than the Plaintiff's commercial embodiment (Compl. p.2, n.1).
V. Key Claim Terms for Construction
In design patent litigation, formal claim construction of specific terms is rare. The "claim" is understood to be the design as a whole, depicted in the patent's drawings. The analysis focuses on the overall visual appearance. Therefore, the central task for the court is not to define words but to determine the scope of the patented design based on the illustrations.
Practitioners may focus on properly filtering out elements that are not part of the claimed design. The patent’s description explicitly states, "The broken lines in the drawings depict portions of the sex toy that form no part of the claimed design" (’544 Patent, Description). This instruction will be critical, as it directs the observer to disregard the internal structure visible at the top opening and the charging contacts on the bottom when assessing infringement. The infringement analysis must be limited to a comparison of the ornamental features shown in solid lines.
VI. Other Allegations
- Indirect Infringement: The complaint makes a conclusory allegation of indirect infringement (Compl. ¶18, 22) and requests an injunction against "aiding, abetting, contributing to, or otherwise assisting anyone in infringing" (Prayer for Relief ¶1(b)). However, the factual allegations focus on Defendants' direct infringement through their own offers to sell and sales, rather than providing specific facts to support a separate claim for induced or contributory infringement, such as evidence of instructions provided to third parties.
- Willful Infringement: Willfulness is alleged based on Defendants "knowingly and willfully" infringing (Compl. ¶11, 18, 19). The complaint supports this by alleging Defendants operate as a concerted network, use tactics to conceal their identities, and copy content from Plaintiff's product listings, which suggests knowledge of the Plaintiff's product and design (Compl. ¶11, 14).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual identity: will an ordinary observer, comparing the accused products to the design claimed in the ’544 Patent (excluding the non-claimed elements shown in broken lines), find the two designs to be substantially the same? The outcome will depend entirely on the visual evidence of the accused products presented to the court.
- A key procedural question will be one of enforceability and jurisdiction: can the Plaintiff successfully identify the operators behind the "Defendant Internet Stores," establish personal jurisdiction over these likely foreign entities, and effectively enforce a potential injunction or damages award against a diffuse network alleged to be using evasive tactics to continue operations?