DCT
1:18-cv-00642
Altair Instruments Inc v. John Doe
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Altair Instruments, Inc. (California)
- Defendant: Brenda Gilbert d/b/a BG Makeovers Advanced Skin Care & Spa and Skin Pro Esthetic Equipment (New Hampshire)
- Plaintiff’s Counsel: Sheehan Phinney Bass & Green, P.A.
- Case Identification: 1:18-cv-00642, D.N.H., 07/20/2018
- Venue Allegations: Venue is based on the defendant’s residence, commission of infringing acts, and maintenance of a regular and established place of business within the District of New Hampshire.
- Core Dispute: Plaintiff alleges that Defendant’s "Hydro Skin Refiner" microdermabrasion devices infringe a patent related to a system for abrading skin using a vacuum-assisted wand with a fixed abrasive tip.
- Technical Context: The technology relates to cosmetic dermatology devices for skin resurfacing, specifically offering an alternative to systems that use loose, powdered abrasives.
- Key Procedural History: The complaint notes that the asserted patent, U.S. Patent No. 6,241,739, has survived two separate ex parte reexamination proceedings at the USPTO. It also alleges that the patent was previously found valid and infringed by a "similar" device in litigation against a third party, a ruling that was affirmed by the U.S. Court of Appeals for the Federal Circuit.
Case Timeline
| Date | Event |
|---|---|
| 1999-11-12 | ’739 Patent Priority Date |
| 2001-06-05 | ’739 Patent Issue Date |
| 2007-12-11 | ’739 Patent First Reexamination Certificate (C1) Issued |
| 2015-07-15 | ’739 Patent Second Reexamination Certificate (C2) Issued |
| 2016-08-08 | Plaintiff alleges Defendant received actual notice of infringement |
| 2018-07-20 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 6,241,739 - "Microdermabrasion Device And Method Of Treating The Skin Surface"
- Issued: June 5, 2001
The Invention Explained
- Problem Addressed: The patent describes prior art microdermabrasion techniques that relied on blasting the skin with powdered abrasives, such as aluminum oxide. This method was described as creating potentially hazardous dust that could be inhaled by patients and operators, and could leave irritating particle residue embedded in the skin (’739 Patent, col. 2:17-37).
- The Patented Solution: The invention is a device that avoids loose powders by using a wand with an abrasive material, such as diamond grit, permanently attached to the treatment tip. A vacuum is applied through an opening in the tip, which serves two functions: it pulls the skin into "intimate contact" with the abrasive surface to enhance the treatment, and it suctions away the removed skin cells into a collection filter (’739 Patent, Abstract; col. 2:38-46).
- Technical Importance: This design offered a method of microdermabrasion that aimed to eliminate the health risks and cleanup associated with powdered abrasive systems prevalent at the time of the invention (’739 Patent, col. 3:18-24).
Key Claims at a Glance
- The complaint asserts independent claims 1, 9, 12, and 16, with a detailed chart provided for claim 1.
- The essential elements of independent claim 1 (as amended by the second reexamination certificate) include:
- A source of a vacuum.
- A tube with a treatment tip for removing epidermis cells.
- The tip has an abrasive material permanently attached to its operating end, which provides a "treatment delivery surface."
- This surface has a fixed orientation relative to the tube's axis.
- The tube is attached to the vacuum source, creating reduced pressure in its lumen.
- The treatment delivery surface has one or more openings to apply the reduced pressure to the skin.
- The applied vacuum causes the skin to have an increased area of contact with the abrasive material.
- The vacuum also functions to collect the removed epidermis cells.
- The complaint reserves the right to assert additional dependent claims and to pursue infringement under the doctrine of equivalents (Compl. ¶13, ¶14).
III. The Accused Instrumentality
Product Identification
- The "Hydro Skin Refiner" microdermabrasion device (Compl. ¶11).
Functionality and Market Context
- The complaint alleges the accused device is a microdermabrasion machine used for skin treatment procedures (Compl. ¶12). Visual evidence in the complaint depicts a console labeled "Hydro Skin Refiner with Microcurrent" which includes a "Vacuum" control dial, and a separate image shows a set of "Diamond Microdermabrasion" wands or tips (Compl. p. 4). The complaint alleges that Defendant sells the device through its "Skin Pro Esthetic Equipment" business and uses the device in its "BG Makeovers Advanced Skin Care & Spa" business (Compl. ¶4).
IV. Analysis of Infringement Allegations
Claim Chart Summary
- The complaint provides allegations mapping the features of the Hydro Skin Refiner to the elements of Claim 1. The image of the main console shows a vacuum source. (Compl. p. 4). The image of the wand attachments shows tips with abrasive surfaces. (Compl. p. 4).
’739 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A device for removing the epidermis without damaging the dermis of the skin in a microdermabrasion procedure comprising: | The Hydro Skin Refiner is used to remove the epidermis without damaging the dermis in a microdermabrasion procedure. | ¶12 | col. 1:11-14 |
| a source of a vacuum, and | The Hydro Skin Refiner includes a source of vacuum. | ¶12 | col. 3:12-13 |
| a tube with a treatment tip thereon for removing cells comprising the epidermis layer of the skin surface being treated, | The diamond microdermabrasion wand constitutes a tube with a treatment tip thereon for removing cells comprising the epidermis layer. | ¶12 | col. 3:20-22 |
| the treatment tip having an abrasive material permanently attached to an operating end thereof to provide a treatment delivery surface, | The treatment tip has an abrasive material permanently attached to an operating end thereof to provide a treatment delivery surface. | ¶12 | col. 4:25-28 |
| the treatment delivery surface having an orientation fixed in regard to an axis extending longitudinally through the tube, | The treatment delivery surface has an orientation fixed in regard to an axis extending longitudinally through the tube. | ¶12 | Reexamination Certificate C1, col. 1:44-46 |
| the tube being attached to the source of vacuum so that a lumen through the tube has a reduced pressure therein which is less than the ambient pressure surrounding the tube, | The tube is attached to the source of vacuum so that a lumen through the tube has a reduced pressure therein which is less than the ambient pressure surrounding the tube. | ¶12 | col. 4:4-8 |
| the treatment delivery surface having one or more openings therein for continuously applying the reduced pressure within the tube through the opening to a skin surface, | The treatment delivery surface has an opening to allow for continuously applying the reduced pressure within the tube through the opening to a skin surface. | ¶12 | col. 5:51-55 |
| said continuously applied vacuum causing the skin being treated to have an increased area of contact with the abrasive material permanently attached to the treatment tip, | The continuously applied vacuum causes the skin being treated to have an increased area of contact with the abrasive material permanently attached to the treatment tip. | ¶12 | col. 5:42-45 |
| the vacuum also functioning to collect epidermis cells of the skin surface being treated. | The vacuum also functions to collect epidermis cells of the skin surface being treated. | ¶12 | col. 4:19-21 |
Identified Points of Contention
- Scope Questions: The complaint's primary visual shows a device named "Hydro Skin Refiner with Microcurrent" (Compl. p. 4). This raises the question of whether the "microcurrent" feature, which is not described in the patent, alters the device's operation in a way that is relevant to the infringement analysis or provides a basis for a non-infringing mode of operation.
- Technical Questions: Claim 1 requires that the vacuum causes an "increased area of contact" between the skin and the abrasive tip. The complaint makes a conclusory assertion that this element is met but provides no testing data or specific factual support (Compl. ¶12). A key technical question will be what evidence exists to show that the accused device's vacuum performs this specific skin-pulling function, rather than merely aspirating debris generated by manual pressure.
V. Key Claim Terms for Construction
The Term: "permanently attached"
- Context and Importance: This term is central to distinguishing the invention from prior art that used loose, flowing abrasive powders. Its construction will be critical, as the accused device uses interchangeable diamond tips (Compl. p. 4). Practitioners may focus on this term because Defendant could argue that "interchangeable" is the opposite of "permanent."
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent does not define "permanently" and uses the term to distinguish from loose powders that are consumed during a procedure. One might argue that any abrasive fixed to a tip, even if the tip is disposable or interchangeable, meets the limitation as long as the abrasive particles themselves are not flowing (’739 Patent, col. 3:20-22).
- Evidence for a Narrower Interpretation: The specification provides examples of attachment via nickel plating or bonding with adhesive, which imply a durable manufacturing process rather than simple interchangeability (’739 Patent, col. 4:25-28, col. 4:58-62). This could support an interpretation that requires a more lasting bond between the abrasive and the tip itself.
The Term: "increased area of contact"
- Context and Importance: This is a functional limitation that requires a causal link between the vacuum and the physical interaction of the skin and the tip. Infringement depends on proving the accused device's vacuum actually performs this function.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language does not quantify the "increase," so any measurable increase in skin-to-tip contact attributable to the vacuum could be argued to meet the limitation.
- Evidence for a Narrower Interpretation: The specification states that this effect occurs because "The skin being treated is pulled against the abrasive tip, thus increasing the effectiveness of the tissue abrasion and removal process" (’739 Patent, col. 5:42-45). This language suggests the increase must be sufficient to enhance the abrasive action, a potentially higher standard than any de minimis increase in contact.
VI. Other Allegations
- Indirect Infringement: The complaint alleges that Defendants induce infringement by providing the accused devices with instructions for use, knowing such use infringes the ’739 patent. It also alleges contributory infringement on the basis that the devices are a material part of the invention and are not a staple article of commerce with substantial noninfringing uses (Compl. ¶19).
- Willful Infringement: The willfulness allegation is based on alleged pre-suit knowledge. The complaint states that Defendants have had actual notice of the ’739 patent and their alleged infringement since at least August 8, 2016, as a result of a notice letter from Plaintiff’s counsel, and that Defendants continued their allegedly infringing activities despite this notice (Compl. ¶10, ¶20-21).
VII. Analyst’s Conclusion: Key Questions for the Case
- Impact of Prior Rulings: A primary issue will be the influence of the prior litigation where the ’739 patent was found valid and infringed by a "similar" device, a judgment affirmed by the Federal Circuit (Compl. ¶14). While not preclusive against a new defendant, those prior judicial findings, particularly on claim construction and validity, will likely be highly persuasive and frame the central arguments of this case.
- Proof of Functionality: A key evidentiary question will be one of functional causation: does the accused "Hydro Skin Refiner" operate in the specific manner required by the claims? The case may turn on whether Plaintiff can prove that the device's vacuum system actively pulls skin to cause an "increased area of contact" that enhances abrasion, or if a court determines the vacuum's primary function is merely to suction debris, creating a potential mismatch with the patent's functional claims.