Rose v. AFG Distribution Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:

  • Plaintiff: Sai Rose (California)
  • Defendant: AFG DISTRIBUTION Inc. dba Pulsar Vaporizers (North Carolina)
  • Plaintiff’s Counsel: Pro Se

• Case Identification: 1:24-cv-00139, W.D.N.C., 05/07/2024

• Venue Allegations: Venue is asserted based on Defendant’s principal place of business being located in Asheville, North Carolina, within the Western District of North Carolina.

• Core Dispute: Plaintiff alleges that Defendant’s vaporizer products infringe a patent related to a "conjunctive airflow atomizer" for vaporizing concentrates.

• Technical Context: The technology concerns electronic vaporizers, specifically atomizers that heat substances like tobacco or concentrates to produce an inhalable vapor, a significant segment of the consumer electronics and alternative smoking products market.

• Key Procedural History: The complaint alleges a long history of pre-suit interaction, beginning with discussions at a 2016 trade expo where Defendant allegedly learned of Plaintiff's "patent pending" device. Plaintiff alleges sending multiple cease-and-desist notifications starting in October 2016 and continuing after the patent issued in 2020, most recently in April 2023 and 2024. These allegations form the basis for the claim of willful infringement.

Case Timeline

Date	Event
2016-05-25	’573 Patent Priority Date (Provisional Application)
2016-10-03	Plaintiff alleges first notification of infringement to Defendant
2017-05-26	’573 Patent Application Filing Date
2020-09-22	’573 Patent Issue Date
2023-04-XX	Plaintiff alleges patent became "fully granted and enforceable"
2023-04-XX	Plaintiff alleges post-grant notification of infringement to Defendant
2024-05-07	Complaint Filing Date

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

U.S. Patent No. 10,779,573 - "Conjunctive Airflow Atomizer for Concentrates"

The Invention Explained

• Problem Addressed: The patent describes a need in the art for improved vaporization devices that are safer, more efficient, and produce a greater quantity of vapor without overheating the substance being vaporized. It also notes a need for pre-conditioning airflow and capturing unused, splattered material for re-use (’573 Patent, col. 2:58-63).
• The Patented Solution: The invention is an atomizer featuring a "conjunctive airflow" system, which uses a multi-chamber base to warm incoming ambient air before it reaches the heating coil. This is intended to avoid a "dynamic temperature change" that can affect vapor quality (’573 Patent, col. 2:60-col. 3:2). The solution also includes a "reclaim safety cap" with a recessed cup to capture and contain heated substance that splatters from the coil, preventing it from reaching the user's mouth and allowing it to be re-used (’573 Patent, col. 3:51-64; Fig. 14).
• Technical Importance: The claimed combination of airflow pre-conditioning and splatter reclamation addresses user experience issues related to vapor temperature, flavor consistency, and device efficiency.

Key Claims at a Glance

• The complaint asserts U.S. Patent No. 10,779,573 but does not specify which claims are asserted (Compl. ¶27-31). Independent claim 1 is the broadest apparatus claim.
• Essential Elements of Independent Claim 1:
  • A conjunctive airflow atomizer comprising a mouthpiece, a reclaim safety cap, a replacement atomizer module, a conjunctive airflow base, and a standard 510 threaded deck.
  • The reclaim safety cap comprises a "recessed cup-like structure" and is disposed on the conjunctive airflow base.
  • The conjunctive airflow base comprises three O-ring grooves and supports an adjustable air ring.
  • The replacement atomizer module comprises a ceramic heating chamber, a heating coil with "welded wire leads," and a heating rod.
  • The ceramic heating chamber has a "round cup-like structure narrowed on two interior opposing sides."

III. The Accused Instrumentality

Product Identification

• The "Pulsar Barb Fire Wax and Flower" vaporizer (Compl. ¶18, ¶32, ¶36).

Functionality and Market Context

• The complaint alleges that the accused product is "identical" to the Plaintiff's own "SAIONARA" product, which embodies the ’573 Patent (Compl. ¶18, ¶21).
• The core allegation is that the Defendant "stole Plaintiff's vaporizer, adding only their branding" and sells it as their own (Compl. ¶1). The complaint further alleges that the Defendant purchases parts for the accused product directly from the Plaintiff's own manufacturer (Compl. ¶21).
• The complaint describes how Exhibit A, which is not attached to the pleading, demonstrates the accused device is marked "Patent Pending" and "Engineered in California," the same as Plaintiff's device (Compl. ¶20).

IV. Analysis of Infringement Allegations

The complaint references claim charts in Exhibits A, B, and C but does not include them in the filing (Compl. ¶21). The infringement theory is therefore summarized from the complaint's narrative allegations.

The central infringement theory is one of direct copying. The complaint alleges that the Defendant's "Pulsar Barb Fire" product is not merely similar but is an "identical product" to the Plaintiff's patented invention (Compl. ¶18). The complaint states that Defendant "purchases the 573's parts from his manufacturer and has their logo and company information added" (Compl. ¶21). This theory alleges that every element of the asserted claims is met literally because the accused product is a re-branded version of the product for which the patent was obtained. The complaint alleges this constitutes theft and undermines the Plaintiff's ability to compete with his own product (Compl. ¶21).

• Identified Points of Contention:
  • Factual Question: The primary question appears to be factual rather than legal: is the accused Pulsar Barb Fire product physically identical or structurally equivalent to the commercial embodiment of the ’573 Patent, as alleged?
  • Scope Questions: Should the case proceed, a defendant would likely raise questions about the scope of key terms. For example, does the accused product's heating coil contain "welded wire leads" that have been "reconstructed" from a smaller gauge coil as described in the patent, or does it use a conventional, unitary construction? (’573 Patent, col. 13:57-62).
  • Technical Questions: Does the accused product's airflow system function as a "conjunctive airflow base" by passing air through two distinct chambers to pre-condition it, or does it use a more conventional single-chamber air path? (’573 Patent, col. 14:8-16).

V. Key Claim Terms for Construction

• The Term: "reclaim safety cap"

  • Context and Importance: This term appears in independent claim 1 and is described as a key safety and efficiency feature. Its structural and functional definition will be central to determining infringement, particularly whether an accused component that merely blocks splatter, without more, meets the limitation.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The claim language requires a "recessed cup-like structure" and "interior concentric vent holes" (’573 Patent, col. 13:10-12). This could be argued to cover any cap with an indentation and surrounding vents.
    • Evidence for a Narrower Interpretation: The specification describes this component as being "suspended... to disrupt the air flow so that the vapor remains in the cap for a longer time to additionally chill the vapor" and to "collect the splatter after the coil heats the substance in the reclaim cup to be reused" (’573 Patent, col. 3:51-64). A defendant may argue that the term requires a structure that performs all of these functions: splatter capture, re-use facilitation, and vapor cooling.

• The Term: "conjunctive airflow base"

  • Context and Importance: This term is in the patent's title and independent claim 1, indicating it is a core concept of the invention. The definition of "conjunctive" and the required structure of the base will be critical.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: Claim 1 requires the base to have "three O-ring grooves" and support an "adjustable air ring" (’573 Patent, col. 13:12-16). An argument could be made that any base meeting these structural features is a "conjunctive airflow base."
    • Evidence for a Narrower Interpretation: The specification defines "Conjunctive air flow" as a specific "process by which incoming ambient air is temperature-increased as it fills the first or lower air chamber... [before] filling the second chamber and warming the air" (’573 Patent, col. 2:60-col. 3:2). The detailed description further specifies that the base comprises "two chambers with a plurality of exterior and interior holes" (’573 Patent, col. 13:36-38). A party could argue the term requires a two-chamber structure that performs this specific temperature-stepping function.

VI. Other Allegations

• Indirect Infringement: The complaint alleges contributory infringement under 35 U.S.C. § 271(c) (Compl. ¶34). It asserts Defendant sells components, such as the "Barb Fire Wax and Flower," that embody a material part of the invention, are known by Defendant to be especially made for infringement, and are not staple articles suitable for substantial non-infringing use (Compl. ¶35-36).

• Willful Infringement: The complaint places significant emphasis on willful infringement. It alleges Defendant had pre-suit knowledge of the invention and "patent pending" status from a meeting at a trade expo in 2016 (Compl. ¶13-15). It further alleges that Plaintiff provided direct notice of infringement via phone and email in October 2016 and sent subsequent cease-and-desist letters in 2020, 2023, and 2024, all of which were allegedly ignored (Compl. ¶1, ¶25, ¶26, ¶38, ¶47).

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

• A core issue will be one of factual identity: is the accused "Pulsar Barb Fire" vaporizer a re-branded version of the Plaintiff's "SAIONARA" device, sourced from the same manufacturer, as the complaint alleges? The case may turn on evidence substantiating this direct copying claim.
• A key legal question will be one of claim scope: assuming the products are not identical, do the specific structures in the accused device, such as its airflow base and mouthpiece cap, perform the functions described in the patent specification necessary to meet the definitions of terms like "conjunctive airflow base" and "reclaim safety cap"?
• A central question for damages will be willfulness: does the evidence support the complaint's detailed allegations of pre-suit knowledge dating back to 2016 and a consistent pattern of ignoring cease-and-desist demands both before and after the patent issued?