Parah LLC v. Mojack Distributors LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Parah, LLC and Ozonics, LLC (Texas)
  • Defendant: MoJack Distributors, LLC, d/b/a Scent Crusher (Kansas)
  • Plaintiff’s Counsel: Adams Jones Law Firm, P.A.
• Case Identification: 6:18-cv-01208, D. Kan., 07/19/2018
• Venue Allegations: Venue is alleged to be proper in the District of Kansas because the Defendant's principal place of business is located within the district.
• Core Dispute: Plaintiffs allege that Defendant’s portable ozone generators for hunters infringe three patents related to methods for eliminating human scent in the field.
• Technical Context: The technology involves the use of portable ozone generators to neutralize human scent, a significant factor for hunters seeking to avoid detection by game animals with acute senses of smell.
• Key Procedural History: The complaint alleges that Defendant had pre-suit knowledge of the patents, citing a March 2015 cease-and-desist letter. It further alleges that following this notice, Defendant unsuccessfully attempted to purchase or license the technology from Plaintiffs before launching the currently accused products in June 2018, facts which Plaintiffs assert support a claim of willful infringement.

Case Timeline

Date	Event
2004-02-11	Priority Date for ’015, ’180, and ’177 Patents
2011-05-10	U.S. Patent No. 7,939,015 Issue Date
2013-03-26	U.S. Patent No. 8,404,180 Issue Date
2013-10-15	U.S. Patent No. 8,557,177 Issue Date
2015-02-XX	Ozonics alleges discovery of Scent Crusher selling portable ozone generators
2015-03-04	Ozonics sends cease-and-desist letter to Scent Crusher
2017-04-XX	Scent Crusher allegedly offers to buy Ozonics
2017-11-XX	Scent Crusher allegedly proposes joint venture with Ozonics
2018-06-XX	Scent Crusher announces accused "Field Lite" and "Field Pro" products
2018-07-19	Complaint Filing Date
2018-08-06	Announced ship date for accused products

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

U.S. Patent No. 8,404,180 - "Method of Descenting Hunter’s Clothing"

Issued March 26, 2013

The Invention Explained

• Problem Addressed: The patent’s background section describes the problem that animals possess an acute sense of smell, making it difficult for hunters to avoid detection, and notes that conventional masking scents can be obnoxious or attract unintended predators (’180 Patent, col. 3:26-49).
• The Patented Solution: The invention proposes a method where a portable gas generator is mounted in the field relative to a hunter. This generator discharges a stream of oxidizing gas (such as ozone) to eliminate human-associated scents from the air that is traveling downwind from the hunter toward game animals (’180 Patent, Abstract; col. 4:5-9). The goal is to create a "scent-free" path downwind of the hunter's position.
• Technical Importance: This approach offers a way to actively manage scent dispersal in the field, creating a zone of deodorized air rather than simply masking a hunter's scent with another odor (’180 Patent, col. 3:55-58).

Key Claims at a Glance

• The complaint asserts independent claims 1 and 7 (Compl. ¶43).
• Independent Claim 1 recites a method with the essential elements of:
  • Providing a gas generator configured for transport into, and mounting in, the field.
  • The generator is configured for discharging a stream of oxidizing gas into the field.
  • The discharge functions "to eliminate scents associated with a hunter in air traveling downwind of the hunter toward game animals in the field."
• The complaint reserves the right to assert dependent claims (Compl. ¶43).

U.S. Patent No. 7,939,015 - "Method of Descenting Hunter’s Clothing"

Issued May 10, 2011

The Invention Explained

• Problem Addressed: The patent identifies the same core problem of a hunter’s scent being detectable by game animals and the drawbacks of using masking scents (’015 Patent, col. 1:15-34).
• The Patented Solution: This invention describes a method where a hunter transports a portable ozone generator into the field, hangs it in an open atmosphere (e.g., from a tree), and applies a stream of ozone from the generator directly onto their body, clothing, and equipment to eliminate human and other foreign scents (’015 Patent, col. 2:42-54). This method focuses on de-scenting the source, rather than the air downwind.
• Technical Importance: The invention provides a method for hunters to actively deodorize themselves and their gear while in the field, addressing scents that may be generated during the hunt itself, such as from perspiration (’015 Patent, col. 1:44-46).

Key Claims at a Glance

• The complaint asserts independent claims 1 and 4 (Compl. ¶43).
• Independent Claim 1 recites a method with the essential elements of:
  • Providing a portable ozone generator for discharging a stream of ozone.
  • Transporting the generator into the field.
  • Hanging the generator in an open atmosphere where the hunter and game animals are present.
  • "Applying the stream of ozone directly on the hunter, clothing worn by the hunter, and equipment used by the hunter."
• The complaint reserves the right to assert dependent claims (Compl. ¶43).

U.S. Patent No. 8,557,177 - "Method of Descenting Hunter’s Clothing"

Issued October 15, 2013

The Invention Explained

• Technology Synopsis: This patent addresses the problem of human scent detection by animals by claiming a method of using a portable oxidizing gas generator in the field. The method involves positioning the generator and applying its stream of oxidizing gas directly onto the hunter, their clothing, and equipment to deodorize them during a hunt (’177 Patent, Abstract; col. 4:50-61).
• Accused Features: The Defendant's 'Field Pro' and 'Field Lite' products are alleged to be portable oxidizing gas generators that are marketed with instructions for hunters to use them in the field to eliminate scent, thereby practicing the claimed methods (Compl. ¶38, ¶39).

Key Claims at a Glance

• Asserted Claims: The complaint asserts independent claims 1, 2, and 4 (Compl. ¶43).

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are the Defendant’s "Field Pro" and "Field Lite" portable ozone generators (Compl. ¶27).

Functionality and Market Context

• The complaint describes the accused products as battery-operated, portable ozone generators designed for in-field use by hunters (Compl. ¶40). Promotional materials cited in the complaint describe them as "compact and lightweight" and show them being mounted in tree stands (Compl. ¶39, ¶28). An image in the complaint shows the product announcements for the "Field Pro" and "Field Lite," detailing their features. (Compl. ¶27, p. 8).
• The products are advertised as creating a "scent control blanket" or a "circle of protection" for the hunter in a tree stand or ground blind (Compl. ¶31, ¶41). The "Field Pro" model is specifically alleged to have "vent ports on the front and side for an industry leading 270° of coverage" (Compl. ¶40).
• The complaint alleges these products are "copycat" devices launched to unlawfully compete with Plaintiff Ozonics after Defendant's prior attempts to license or acquire the patented technology were declined (Compl. ¶2, ¶37).

IV. Analysis of Infringement Allegations

’180 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
providing a gas generator configured for transport into a field, configured for mounting in the field,	Defendant makes, sells, and advertises the Field Pro and Field Lite, which are described as portable, battery-operated units with accessories for mounting in a tree stand or blind.	¶27, ¶38, ¶40	col. 4:51-53
and configured for discharging a stream of oxidizing gas into the field	The accused products are ozone generators with vent ports for discharging ozone.	¶27, ¶38, ¶40	col. 4:54-55
to eliminate scents associated with a hunter in air traveling downwind of the hunter toward game animals in the field.	The products are advertised as creating a "scent control blanket" and "circle of protection" for use in tree stands, which the complaint alleges performs the function of eliminating scent downwind.	¶31, ¶41, ¶42	col. 4:55-58

’015 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
providing a portable ozone generator for discharging a stream of ozone;	Defendant makes and sells the Field Pro and Field Lite products, which are portable ozone generators.	¶27, ¶38	col. 4:42-44
transporting the portable ozone generator by the hunter into the field;	The products are marketed as portable units intended for hunters to take into the field.	¶31, ¶39	col. 4:45-47
hanging the portable ozone generator in an open atmosphere in which the hunter and game animals are present	Promotional materials and images show the accused products mounted to trees in a hunting environment. An image from the Defendant's website shows the 'Field Lite' mounted on a tree.	¶28, ¶32, p. 11	col. 4:48-52
and applying the stream of ozone directly on the hunter, clothing worn by the hunter, and equipment used by the hunter;	The accused products are alleged to discharge ozone to create a "scent control blanket," which the complaint contends constitutes direct application of ozone onto the hunter and their equipment.	¶31, ¶40	col. 4:52-55

Identified Points of Contention

• Scope Questions: A central question for the ’180 Patent is whether the accused products' advertised function of creating a "scent control blanket" meets the claim limitation of eliminating scents specifically "in air traveling downwind." For the ’015 Patent, a similar question arises as to whether the general dispersal of ozone from the accused products constitutes "applying the stream of ozone directly on the hunter," or if that term requires a more focused application.
• Technical Questions: What evidence does the complaint provide that the accused products, when used as instructed, actually perform the specific functions claimed? The infringement case for these method claims will depend on how the devices are proven to operate in practice, not just how they are marketed.

V. Key Claim Terms for Construction

Term 1: "to eliminate scents associated with a hunter in air traveling downwind of the hunter" (’180 Patent, Claim 1)

• Context and Importance: This limitation defines the specific functional outcome of the claimed method. Practitioners may focus on this term because infringement will depend on whether the Defendant's products, which create a "circle of protection," can be proven to achieve this specific downwind scent neutralization.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes the concept in general terms, for instance, by stating the instrument can be "hung upwind of the body so it descents the human scent traveling downwind" (’180 Patent, col. 4:7-9). This could support an interpretation where any release of ozone upwind of the hunter that mixes with and neutralizes downwind scent would meet the limitation.
  • Evidence for a Narrower Interpretation: The use of the term "stream" in the claims could suggest a more directional flow is required (’180 Patent, col. 4:55). A defendant might argue that a general, ambient "blanket" of ozone is different from a directed "stream" intended to intercept a downwind scent path.

Term 2: "applying the stream of ozone directly on the hunter, clothing... and equipment" (’015 Patent, Claim 1)

• Context and Importance: This term is critical for distinguishing the claimed method from general atmospheric treatment. The infringement analysis for the ’015 Patent hinges on whether the ozone dispersal from the accused units constitutes "direct application."
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent describes applying the stream "in an open atmosphere" while the hunter is wearing the clothing, which could support the view that any application in close proximity to the hunter qualifies as "direct" (’015 Patent, col. 2:42-52).
  • Evidence for a Narrower Interpretation: The phrase "directly on" could be interpreted to require a more focused, targeted action, like using a nozzle to spray a surface. A defendant could argue that the "270° of coverage" advertised for the Field Pro (Compl. ¶40) is evidence of ambient, non-directional dispersal, not the direct application required by the claim.

VI. Other Allegations

• Indirect Infringement: The complaint alleges induced infringement, stating that Defendant instructs and encourages customers to use the Field Pro and Field Lite products in an infringing manner through its promotional materials, product descriptions, and user instructions (Compl. ¶44, ¶53).
• Willful Infringement: The complaint alleges willful infringement based on Defendant's alleged pre-suit knowledge of the patents. This allegation is supported by reference to a March 2015 cease-and-desist letter that explicitly identified the ’180 and ’177 patents, as well as Defendant's subsequent alleged attempts to buy or license the technology before launching the accused products (Compl. ¶22, ¶24-¶26, ¶46).

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

• A core issue will be one of functional interpretation: can the accused products' advertised creation of a "scent control blanket" be proven to perform the specific methods recited in the claims—namely, the elimination of scents "in air traveling downwind" (as required by the '180 patent) or the "direct application" of ozone onto the hunter (as required by the '015 patent)?
• A second central issue will be one of claim construction: the dispute will likely focus on the court's interpretation of the phrases "in air traveling downwind" and "directly on," as the breadth of these terms will be determinative of the infringement analysis.
• Finally, a key evidentiary question will be one of proof of infringement for method claims: Plaintiffs will need to show not only that the devices are capable of infringement, but that Defendant's marketing and instructions actively induce customers to use the products in a way that performs all steps of the claimed methods.