2:20-cv-00222
Neck Hammock Inc v. Dfo Global Performance Commerce Ltd
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: The Neck Hammock, Inc. (Delaware)
- Defendant: DFO Global Performance Commerce Limited (Nevada), et al.
- Plaintiff’s Counsel: Holley Driggs Walch Fine Puzey Stein & Thompson; Workman Nydegger
- Case Identification: 2:20-cv-00222, D. Nev., 01/31/2020
- Venue Allegations: Venue is alleged to be proper in the District of Nevada because Defendant DFO is a resident of the district, a substantial part of the events giving rise to the claim allegedly took place in the district, and the Plaintiff suffered harm there.
- Core Dispute: Plaintiff alleges that Defendant’s "NecKomfort" portable cervical traction device infringes one utility patent and four design patents covering Plaintiff's "Neck Hammock" product.
- Technical Context: The technology concerns portable, at-home cervical traction devices designed to alleviate neck pain by using a sling and elastic tethers anchored to an object like a door.
- Key Procedural History: The complaint alleges that after the Plaintiff launched successful crowdfunding campaigns for its product, infringers began copying the design and selling "shameless copycats." Plaintiff notes that over 8,000 unauthorized product listings have been removed from online marketplaces.
Case Timeline
| Date | Event |
|---|---|
| 2016-08-12 | ’284 Patent Priority Date |
| 2017-05-22 | ’D035, ’D492, ’D493, ’D494 Patents Priority Date |
| 2017-10-24 | Plaintiff's Kickstarter Campaign Launch |
| 2018-07-24 | U.S. Patent No. D824,035 Issued |
| 2019-04-09 | U.S. Patent No. D845,492 Issued |
| 2019-04-09 | U.S. Patent No. D845,493 Issued |
| 2019-04-09 | U.S. Patent No. D845,494 Issued |
| 2019-06-04 | U.S. Patent No. 10,307,284 Issued |
| 2020-01-31 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,307,284 - "Portable Traction Device with Sling," Issued June 4, 2019
The Invention Explained
- Problem Addressed: The patent describes prior art at-home cervical traction devices as being "complex, cumbersome, bulky, costly and potentially injurious" (’284 Patent, col. 1:36-40). Existing devices allegedly required inconvenient headgear, weights and pulleys, or clamps that could damage furniture (’284 Patent, col. 1:41-53).
- The Patented Solution: The invention is a portable traction device featuring a sling assembly to cradle the user's head, flexible elastic tethers, and an anchor system for securing the device to an object, such as in a door frame (’284 Patent, Abstract; Fig. 1). This configuration is designed to apply a tensile force at an acute angle to the floor, providing traction while minimizing discomfort and avoiding the need for complex or damaging hardware (’284 Patent, col. 2:21-40).
- Technical Importance: The technology provides a portable, compact, and non-marring method for applying cervical traction that is more convenient and accessible for home use compared to prior systems (Compl. ¶27).
Key Claims at a Glance
- The complaint asserts at least independent claim 1 (Compl. ¶¶66-73).
- The essential elements of independent claim 1 include:
- A sling assembly with a sling made of flexible material, a base cushion, and first and second side cushions.
- The sling is sized to cradle and engage an occipital bone portion of a user's head via a "frictional portion."
- A pair of side attachments extending from the sling.
- Flexible elastic tethers that selectively attach to the side attachments.
- An anchor, comprising an anchor tab, an anchor connector, and an anchor strap, to selectively attach to the tethers and an anchoring object.
- The complaint reserves the right to assert additional claims (Compl. ¶73).
U.S. Design Patent No. D824,035 - "Portable Traction Device," Issued July 24, 2018
The Invention Explained
- Problem Addressed: Not applicable. Design patents protect the novel ornamental appearance of an article of manufacture, not its utility.
- The Patented Solution: The patent claims the specific ornamental design for a portable traction device, as depicted in its figures (’D035 Patent, Figs. 1-16). The design features a contoured, padded sling with distinct shapes for the base and side cushions, and D-ring attachments at each end. The overall visual impression created by the specific shapes, contours, and arrangement of these elements constitutes the patented design.
- Technical Importance: Not applicable to a design patent.
Key Claims at a Glance
- The complaint asserts the single claim of the patent (Compl. ¶82).
- Design patents contain a single claim for the ornamental design as shown in the drawings.
Multi-Patent Capsule: U.S. Design Patent No. D845,492
- Patent Identification: D845,492, "Portable Traction Device," Issued April 9, 2019.
- Technology Synopsis: This patent protects an ornamental design for a portable traction device, appearing substantially similar to the design in the ’D035 Patent. It illustrates the specific visual appearance of the head-cradling sling with its particular padding configuration and end attachments.
- Asserted Claims: The single claim for the ornamental design as shown.
- Accused Features: The overall visual appearance of the "NecKomfort" product is alleged to be deceptively similar to the patented design (Compl. ¶¶91-93).
Multi-Patent Capsule: U.S. Design Patent No. D845,494
- Patent Identification: D845,494, "Portable Traction Device," Issued April 9, 2019.
- Technology Synopsis: This patent protects an ornamental design for a portable traction device, including the head-cradling sling. The figures depict the specific shapes, proportions, and surface contours that create the unique visual appearance of the device when viewed from various angles.
- Asserted Claims: The single claim for the ornamental design as shown.
- Accused Features: The overall ornamental design of the accused "NecKomfort" product is alleged to infringe (Compl. ¶¶100-101).
Multi-Patent Capsule: U.S. Design Patent No. D845,493
- Patent Identification: D845,493, "Portable Traction Device," Issued April 9, 2019.
- Technology Synopsis: This patent protects an ornamental design for a portable traction device that includes the sling, straps, and an adjustable buckle feature. The claim covers the specific visual appearance of the entire assembly, including the shape of the sling and the configuration of the straps.
- Asserted Claims: The single claim for the ornamental design as shown.
- Accused Features: The complaint alleges that the "NecKomfort" product embodies a design that is substantially the same as the patented design (Compl. ¶¶109-110).
III. The Accused Instrumentality
Product Identification
The accused products are portable traction devices marketed under the brand "NecKomfort" and sold through various online URLs, including buyneckomfort.com (Compl. ¶¶4, 16, 31).
Functionality and Market Context
The Accused Products are described as devices that relieve neck pain using "patented technology [that] combines resistance ligaments and gravity to give you a controlled stretch" (Compl. p. 16). The complaint includes an image of the accused product's packaging, which lists a "Neck Hammock" as an included item (Compl. p. 19). The complaint characterizes the Accused Products as "knock-off" (Compl. ¶12) and "shameless copycats" (Compl. ¶10) intended to trade on the goodwill of Plaintiff's product. An instructional image shows the accused device's strap wrapped around a doorknob for anchoring (Compl. p. 29).
IV. Analysis of Infringement Allegations
’284 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a sling assembly, comprising: a sling comprising flexible material and having a first side, a second side opposite the first side, a superior edge, and an inferior edge... | The Accused Products include a sling made of flexible material with designated first/second sides and superior/inferior edges, as shown in an annotated product photo. A visual supplied in the complaint shows the labeled components of the accused product's sling (Compl. p. 25). | ¶66 | col. 2:1-6 |
| the sling being elongated and sized to cradle and engage an occipital bone portion of a user's head via at least a frictional portion of the sling... | The accused sling is alleged to be elongated and sized to cradle the occipital bone, with a frictional portion that engages the user's head. A photograph in the complaint shows the accused device in use, cradling a user's head (Compl. p. 26). | ¶67 | col. 2:1-6 |
| a base cushion attached to the sling... and approximately centered between the first and second sides of the sling | The Accused Products allegedly include a centered base cushion on the sling. | ¶68 | col. 2:7-11 |
| a first side cushion disposed between the base cushion and the first side of the sling; and a second side cushion disposed between the base cushion and the second side of the sling | The Accused Products allegedly include first and second side cushions positioned on either side of the base cushion. | ¶69 | col. 2:10-14 |
| a pair of side attachments comprising a first side attachment... and a second side attachment... | The Accused Products allegedly have a pair of side attachments extending from the sides of the sling. | ¶70 | col. 2:14-17 |
| flexible elastic tethers operable to selectively attach to the pair of side attachments via first ends of the flexible elastic tethers | The Accused Products are alleged to include flexible elastic tethers that attach to the side attachments on the sling. | ¶71 | col. 2:18-20 |
| an anchor operable to selectively attach to the sling and to an anchoring object, wherein the anchor comprises: an anchor tab; an anchor connector...; and an anchor strap... | The complaint alleges the Accused Products include an anchor with these three components, illustrated with an annotated image showing the product attached to a door and doorknob (Compl. p. 29). | ¶72 | col. 2:20-28 |
Identified Points of Contention
- Scope Questions: The infringement analysis may turn on the construction of the term "anchor." Claim 1 requires a three-part structure of a "tab," "connector," and "strap." A question for the court will be whether the accused anchoring mechanism contains three distinct components that meet these claimed definitions, or if it constitutes a different, non-infringing structure.
- Technical Questions: The complaint provides annotated photographs mapping product features directly onto claim limitations. A central evidentiary question will be whether discovery confirms that the Accused Products possess the specific cushion arrangement (a base cushion flanked by two side cushions) and the three-part anchor structure as required by claim 1 and alleged in the complaint.
’D035 Patent Infringement Allegations
The complaint alleges that the design of the Accused Product is substantially the same as the design claimed in the ’D035 Patent, such that it would deceive an ordinary observer (Compl. ¶82). To support this, the complaint provides a side-by-side visual comparison between a figure from the patent and a photograph of the Accused Product (Compl. pp. 30-31). The key question for the court will be whether an ordinary observer, giving the attention a typical purchaser would, would be induced to purchase the Accused Product believing it to be the patented design.
V. Key Claim Terms for Construction
The Term: "frictional portion"
Context and Importance: This term is critical because it describes the functional interface between the sling and the user's head, which prevents the device from slipping during use. Practitioners may focus on this term because its scope—whether it requires a specific material or texture, or merely refers to any part of the sling that provides sufficient friction—could determine whether the accused sling literally infringes.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification describes this as "a frictionally engaging portion that does not slide off the head during normal use" (’284 Patent, col. 4:21-23), which defines the element by its function rather than its specific structure, potentially supporting a broader interpretation.
- Evidence for a Narrower Interpretation: The patent states that cushions provide "enhanced frictional engagement" (’284 Patent, col. 3:36-37). A defendant could argue that the term should be limited to the specific cushioned embodiments shown, which are described as being positioned at key pressure points (’284 Patent, col. 6:40-46).
The Term: "anchor"
Context and Importance: Claim 1 requires a specific, three-part anchor structure: "an anchor tab; an anchor connector...; and an anchor strap." Infringement requires the presence of all three distinct elements. The construction of "anchor" and its sub-elements will be dispositive for this limitation.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A plaintiff may argue that the claim terms should be given their plain and ordinary meaning and that any three-part assembly performing the functions of a tab, connector, and strap meets the limitation, regardless of its exact form.
- Evidence for a Narrower Interpretation: The specification provides a detailed description of a preferred door anchor embodiment, including a "plastic tab of 0.1 to 0.5 inches in thickness" and a D-ring connector (’284 Patent, col. 6:26-44). A defendant may argue that these specific disclosures limit the scope of the more general claim terms.
VI. Other Allegations
- Indirect Infringement: The complaint focuses on direct infringement under 35 U.S.C. § 271(a), alleging that Defendants make, use, sell, offer for sale, and/or import the Accused Products (Compl. ¶65). The complaint does not contain detailed allegations or separate counts for inducement or contributory infringement.
- Willful Infringement: The complaint alleges that Defendants' infringement was willful for all five asserted patents (Compl. ¶¶ 74, 83, 92, 101, 110). The factual basis for this allegation is the claim that Defendants are "shameless copycats" who began selling knock-off products shortly after Plaintiff's successful crowdfunding campaigns, suggesting Defendants had knowledge of or were willfully blind to the Plaintiff's intellectual property rights (Compl. ¶10).
VII. Analyst’s Conclusion: Key Questions for the Case
A central issue for the four asserted design patents will be a factual determination under the ordinary observer test: Are the accused "NecKomfort" products so visually similar to the patented designs that they would deceive a typical consumer into purchasing one thinking it was the other? The side-by-side comparisons in the complaint frame this as the core of the design patent dispute.
For the '284 utility patent, the case will likely hinge on claim construction and evidentiary proof. While the complaint presents a detailed map of claim elements to the accused device, a key question is whether the court will construe terms like "anchor" and its constituent parts ("tab," "connector," "strap") in a way that reads on the accused device's structure. Following construction, the plaintiff will bear the burden of proving that the accused product in fact contains each of these elements.
A significant question bearing on potential damages is one of intent. Can the plaintiff prove the allegations of deliberate copying and knowledge required to establish willful infringement? The complaint's narrative of "shameless copycats" emerging after a successful product launch will be tested against the evidence of what the defendants knew and when they knew it.