DCT
2:23-cv-00483
Peritas Brands LLC v. Leaphigh Animals LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Peritas Brands, LLC (Florida)
- Defendant: LeapHigh Animals, LLC (Nevada)
- Plaintiff’s Counsel: Holland & Hart LLP; Renner Otto
- Case Identification: 2:23-cv-00483, D. Nev., 05/30/2023
- Venue Allegations: Venue is alleged to be proper in the District of Nevada because Defendant LeapHigh is organized under Nevada law, is registered in Nevada, and maintains its principal place of business in Nevada.
- Core Dispute: Plaintiff seeks a declaratory judgment that its pet cage liners do not infringe Defendant's patents and that those patents are invalid, following Defendant’s infringement complaint to Amazon that resulted in Plaintiff's products being removed from sale.
- Technical Context: The technology concerns multi-layered, absorbent, and reusable fabric bedding for small animals, a significant product category within the consumer pet supply market.
- Key Procedural History: This lawsuit was precipitated by an Intellectual Property Takedown Complaint filed by Defendant LeapHigh with Amazon on or before June 28, 2022, which alleged that certain of Plaintiff's products infringed its patents. Plaintiff alleges that Defendant subsequently refused to identify the specific patents or claims at issue, creating a controversy that necessitates this declaratory judgment action.
Case Timeline
| Date | Event |
|---|---|
| 2016-01-01 (or earlier) | Plaintiff's products allegedly utilize materials and methods dating to this period |
| 2018-02-27 | Earliest Priority Date for '405, '357, and D'268 Patents |
| 2021-04-06 | U.S. Patent No. 10,966,405 Issued |
| 2021-09-07 | U.S. Design Patent No. D930,268 Issued |
| 2021-09-28 | U.S. Patent No. 11,129,357 Issued |
| 2022-06-28 (on or before) | Defendant files Intellectual Property Takedown Complaint with Amazon |
| 2023-05-30 | Plaintiff files Amended Complaint for Declaratory Judgment |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,966,405 - “Animal Bedding,” issued April 6, 2021
The Invention Explained
- Problem Addressed: The patent background describes issues with traditional small animal bedding, such as shredded paper or wood shavings, which can cause health problems like pododermatitis ("bumblefoot") from exposure to waste, generate dust leading to respiratory infections, and create ongoing waste and expense ('405 Patent, col. 1:49 - col. 2:20).
- The Patented Solution: The invention is a reusable, multi-layer fabric bedding. It consists of a hydrophobic top layer to wick moisture away from the animal, a hydrophilic middle layer (e.g., bamboo) to absorb and trap waste, and a waterproof bottom layer to protect the cage ('405 Patent, col. 2:25-46). A key feature is a "pocket" attached to the main section, which allows burrowing animals like guinea pigs to hide, satisfying a natural instinct ('405 Patent, Abstract; col. 5:6-21).
- Technical Importance: The claimed construction provides a washable and more hygienic alternative to disposable bedding while also incorporating an animal-centric feature (the pocket) to reduce stress ('405 Patent, col. 5:17-21).
Key Claims at a Glance
- The complaint identifies independent Claim 1 as illustrative (Compl. ¶35).
- Essential elements of Claim 1:
- Animal bedding with a main section comprising a top layer, a hydrophilic middle layer, and a partially hydrophobic bottom layer.
- The top layer is attached to both the bottom layer and the middle layer.
- A "pocket" is attached to the main section.
- The pocket covers less than half of the surface area of the top layer.
- The complaint seeks a declaratory judgment of non-infringement as to all claims of the '405 Patent (Compl. p. 15, ¶ b).
U.S. Design Patent No. D930,268 - “Animal Bedding,” issued September 7, 2021
The Invention Explained
- Problem Addressed: Design patents do not solve technical problems; they protect the unique, non-functional, ornamental appearance of an article of manufacture.
- The Patented Solution: The '268 Patent claims the specific ornamental design for animal bedding depicted in its figures ('268 Patent, Figs. 1-10). The design consists of a rectangular mat with two distinct visual features: a main body having a diamond-shaped quilted stitching pattern and a partially attached, folded-over canopy or "pocket" section. Broken lines in the figures indicate aspects that are not part of the claimed design, such as the perimeter stitching and an illustrated guinea pig ('268 Patent, DESCRIPTION).
- Technical Importance: In the consumer goods market, a distinctive ornamental design can serve as a key source-identifier and market differentiator.
Key Claims at a Glance
- Design patents contain a single claim for the ornamental design as shown and described in the patent's drawings ('268 Patent, CLAIM).
- The complaint seeks a declaratory judgment of non-infringement of this claim (Compl. ¶¶ 31, 38).
U.S. Patent No. 11,129,357 - “Animal Bedding,” issued September 28, 2021
- Technology Synopsis: This patent, a continuation-in-part of the application leading to the '405 Patent, also addresses the problems of traditional animal bedding ('357 Patent, col. 1:40-54). Its solution refines the multi-layer structure, specifically claiming an arrangement with at least two middle layers of differing rigidity—"a less rigid layer" and "a more rigid layer" (such as a 3D air mesh layer)—and two separate attachments ('357 Patent, Claim 9; col. 9:10-44).
- Asserted Claims: The complaint identifies independent Claim 9 as illustrative (Compl. ¶40).
- Accused Features: The complaint alleges non-infringement on the basis that none of the Accused Products include the claimed "more rigid layer" (Compl. ¶41).
III. The Accused Instrumentality
Product Identification
The "Accused Products" are various reusable pet bedding and cage liners sold by Peritas Brands under the PAW INSPIRED® trademark, including the "Critter Box," "PopCorner," and "Generic Absorbent" liner product lines (Compl. ¶¶ 8-11).
Functionality and Market Context
The Accused Products are described as multi-layer absorbent animal pads used as cage liners for small pets (Compl. ¶¶ 8, 33). The complaint alleges that the fundamental construction of these products, including the use of multi-layer absorbent materials and interior stitching, constitutes prior art that predates the LeapHigh patents (Compl. ¶¶ 32-33). The complaint includes a photograph showing the layered construction of an alleged prior art pad with both perimeter and interior stitching (Compl. ¶33, p. 9). Plaintiff alleges that approximately twenty of its products were removed from the Amazon marketplace as a result of Defendant’s infringement complaint (Compl. ¶1).
IV. Analysis of Infringement Allegations
U.S. Patent No. 10,966,405 Infringement Allegations
The complaint’s theory of non-infringement is that the Accused Products are missing a required element of the asserted claims.
| Claim Element (from Independent Claim 1) | Alleged Non-Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a main section comprising: a top layer; a middle layer comprising a hydrophilic material; and a bottom layer... | The Accused Products are described as multi-layer absorbent pads, which may meet this limitation (Compl. ¶¶ 8, 33). | ¶33 | col. 2:25-30 |
| a pocket, wherein the pocket is attached to the main section, the pocket covering less than half of a surface area of the top layer. | The complaint alleges that "None of the Accused Products include a pocket," and therefore cannot meet this limitation (Compl. ¶36). | ¶36 | col. 5:6-21 |
- Identified Points of Contention:
- Factual Question: The central dispute appears to be factual: do the Accused Products have a structure that meets the claim limitation of "a pocket"? The complaint makes a direct assertion that they do not (Compl. ¶36). The provided images of the Accused Products do not show the distinct, canopy-like pocket illustrated in the '405 Patent (Compl. pp. 3-4; '405 Patent, Fig. 1).
U.S. Design Patent No. D930,268 Infringement Allegations
The complaint’s theory of non-infringement is based on visual differences between the patented design and the Accused Products. The complaint includes figures from the '268 Patent, such as Figure 1, which clearly depict a partially-attached pocket or canopy feature (Compl. p. 10).
- Identified Points of Contention:
- Scope Questions: The infringement analysis will turn on the "ordinary observer" test. A key question for the court will be whether the overall visual appearance of the Accused Products is substantially the same as the claimed design in the '268 Patent.
- Technical Questions: A primary point of visual distinction raised by the complaint is the alleged absence of the "claimed and depicted pocket" in any of the Accused Products (Compl. ¶31). The court will likely compare the '268 Patent figures, which prominently feature this pocket, with the physical appearance of the Accused Products to determine if an ordinary observer would be deceived.
V. Key Claim Terms for Construction
Term: "pocket" (from '405 Patent, Claim 1)
- Context and Importance: The presence or absence of a "pocket" appears to be dispositive for the non-infringement argument against the '405 Patent. Plaintiff’s allegation that "None of the Accused Products include a pocket" is the sole basis provided for its non-infringement contention (Compl. ¶36).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent does not provide a formal definition. The specification describes its function: "The pocket allows the guinea pig to burrow therein, where it is considered safe and dark" ('405 Patent, col. 5:19-21). This functional language could support an interpretation covering any feature that enables burrowing.
- Evidence for a Narrower Interpretation: The patent’s Abstract distinguishes between "a main section and a pocket." The specification consistently describes the pocket as a feature "attached to the main section" ('405 Patent, col. 5:6-12), and the patent figures depict it as a distinct, partially-attached piece of fabric ('405 Patent, Fig. 1). This suggests a specific structural element rather than simply a fold or area where an animal could burrow under the bedding.
Term: "a more rigid layer" (from '357 Patent, Claim 9)
- Context and Importance: Practitioners may focus on this term because Plaintiff's non-infringement argument for the '357 Patent rests entirely on the assertion that its products do not "include the 'more rigid layer' as claimed" (Compl. ¶41). The outcome will depend on whether any layer in Plaintiff's products is found to be "more rigid" than another "less rigid layer" within the meaning of the claim.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language itself is relative ("more rigid than the less rigid layer") and lacks any quantitative metric, which may support a broader interpretation where any discernible difference in rigidity between two middle layers meets the limitation.
- Evidence for a Narrower Interpretation: The specification provides a specific example of a "more rigid layer" as a "3D air mesh layer" which provides "further rigidity for the animal bedding, so that the animal bedding may keep its shape during washing" ('357 Patent, col. 9:10-44, col. 10:59-62). This could support a narrower construction requiring a layer that is structurally distinct and provides a significant, functional increase in rigidity, not merely a minor difference in material density.
VI. Other Allegations
The complaint does not contain allegations of indirect or willful infringement, as it is a declaratory judgment action filed by the accused infringer.
VII. Analyst’s Conclusion: Key Questions for the Case
- A central factual question will be one of elemental presence: do the Accused Products contain a "pocket" as recited in the '405 Patent and depicted in the '268 Design Patent? The Plaintiff's non-infringement case for two of the three patents-in-suit appears to hinge on the absence of this single feature.
- A key legal question will be one of claim scope: for the '357 Patent, how will the court construe the term "a more rigid layer"? The dispute will require defining the degree of relative rigidity needed to satisfy the claim and then determining if the material layers in Plaintiff's products meet that standard.
- An overarching evidentiary question will be one of patent validity: can the patents-in-suit withstand an invalidity challenge based on prior art? The complaint alleges that the core technology of multi-layer, stitched animal bedding was "known and used in the art" before the patents' priority date, a claim it supports with photographic evidence of an alleged prior art product (Compl. ¶¶ 32-33).