Zhu v. Yyqxwy

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Shenzhen Lianxing Industry Co., Ltd (China)
  • Defendant: Yyqxwy, and Zhu Danna (China)
  • Plaintiff’s Counsel: J. Zhang and Associates, P.C.
• Case Identification: 1:24-cv-01224, S.D.N.Y., 02/20/2024
• Venue Allegations: Venue is alleged to be proper in the Southern District of New York because Defendants actively market their products in the district and have shipped the accused product into the district.
• Core Dispute: Plaintiff alleges that Defendant’s ultrasonic pest repeller product infringes a U.S. design patent covering the ornamental appearance of such a device.
• Technical Context: The dispute concerns the aesthetic design of plug-in electronic pest repellers, a product category within the consumer electronics market.
• Key Procedural History: The complaint does not mention any prior litigation, inter partes review proceedings, or licensing history related to the patent-in-suit.

**Case Timeline**

Date	Event
2020-01-09	U.S. D888,876 S Patent Priority Date
2020-06-30	U.S. D888,876 S Patent Issue Date
2024-02-20	Complaint Filing Date

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

U.S. Design Patent No. D888,876 S - *“Ultrasonic Pest Repeller”*

This is the patent-in-suit (“’876 Patent”), issued on June 30, 2020.

The Invention Explained

• Problem Addressed: Design patents protect non-functional, ornamental appearance rather than a technical solution to a problem. The implicit goal is to create a unique and aesthetically distinct appearance for a consumer product, in this case, an ultrasonic pest repeller.
• The Patented Solution: The patent claims the specific ornamental design for the repeller as depicted in its figures ('876 Patent, Claim; DESCRIPTION). Key visual features of the design include a smooth, oval-shaped body, a front face with a central circular speaker grille composed of concentric segmented rings, and a surrounding border of stippled dots ('876 Patent, FIG. 1). The design also includes specific configurations for the rear of the device, including the placement of electrical prongs and ventilation slots ('876 Patent, FIG. 2).
• Technical Importance: The complaint suggests the design provides "unique product positioning," which can be a key differentiator in the crowded consumer electronics market (Compl. ¶18).

Key Claims at a Glance

• The patent asserts a single claim for "the ornamental design for a ultrasound oval pest repeller, as shown and described" ('876 Patent, Claim).
• The scope of this claim is defined by the visual representations in Figures 1 through 7 of the patent. The essential elements are the overall shape and the specific arrangement of surface features, including:
  • The overall oval-shaped housing.
  • The front-facing concentric ring speaker grille design.
  • The stippled-dot texture bordering the front face.
  • The specific layout of the electrical prongs and vents on the rear of the housing.

III. The Accused Instrumentality

Product Identification

The "YYQXWY Ultrasonic Pest Repeller" (the "Repeller") sold by Defendants on Amazon.com (Compl. ¶¶1, 5).

Functionality and Market Context

The complaint describes the Repeller as an electronic device sold to the American marketplace via an Amazon.com storefront (Compl. ¶¶5-6). The plaintiff’s primary allegation is that the visual appearance of the accused Repeller is "virtually identical" to the design protected by the ’876 Patent (Compl. ¶15). The complaint provides visual evidence comparing photographs of the accused product to the drawings in the ’876 patent, such as a side-by-side view showing the overall shape and front-face features (Compl. p. 3). This image shows a photograph of the white, oval-shaped accused device next to a corresponding perspective drawing from the patent.

IV. Analysis of Infringement Allegations

Design patent infringement is determined by the "ordinary observer" test, which asks whether an ordinary observer, familiar with the prior art, would be deceived into purchasing the accused product believing it was the patented design. The complaint does not use a formal claim chart, but rather relies on a direct visual comparison.

The complaint alleges that the accused Repeller is "virtually identical in appearance" to the design claimed in the '876 patent (Compl. ¶15). To support this, the complaint presents several side-by-side photographic comparisons. For example, a top-down photograph of the front of the accused Repeller is shown next to the corresponding front elevation drawing from the patent, highlighting similarities in the oval shape, the central speaker grille, and the textured border (Compl. p. 4). A similar comparison is made for the rear of the device, juxtaposing a photograph of the accused Repeller's back with the patent's rear elevation drawing (Compl. p. 4). These visual aids form the core of the plaintiff's infringement theory, arguing that the totality of the ornamental features creates a visual impression that is substantially the same as the patented design.

• Identified Points of Contention:
  • Scope Questions: The central question for the court will be whether the accused YYQXWY Repeller's design and the '876 patent's design are "substantially the same" in the eyes of an ordinary observer.
  • Technical Questions: A factual question may arise regarding the effect of any minor differences between the products. For instance, the photograph of the accused product's rear shows a "Q.C. PASSED" sticker not present in the patent drawings (Compl. p. 4). The court would need to determine if such minor differences are sufficient to alter the overall visual impression for an ordinary observer.

V. Key Claim Terms for Construction

In design patent litigation, formal claim construction of specific text is rare. The "claim" is understood to be the design as a whole, as depicted in the patent's drawings. The court's "construction" typically involves a verbal description of the overall ornamental features of the patented design. Therefore, there are no specific terms from the single, standardized claim phrase ("the ornamental design for a... as shown and described") that are likely to be the subject of a substantive construction dispute. The analysis will instead focus on a direct comparison of the accused product to the patented design drawings.

VI. Other Allegations

• Indirect Infringement: The complaint does not contain specific factual allegations to support a claim for either induced or contributory infringement. The allegations focus on direct infringement under 35 U.S.C. § 271(a) through acts of making, using, selling, offering for sale, and importing (Compl. ¶¶1, 22).
• Willful Infringement: The complaint alleges that Defendants' infringement is "deliberate, willful, wanton, and intentional," based on the "virtually identical appearance" between the products (Compl. ¶17). It further alleges, upon information and belief, that Defendants acted with "full knowledge of the ‘876 patent" (Compl. ¶23).

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

• A core issue will be one of visual comparison: applying the "ordinary observer" test, is the overall ornamental design of the accused YYQXWY Repeller substantially the same as the design claimed in the '876 Patent, such that a purchaser would be deceived?
• A key evidentiary question will be what weight the court or jury gives to any minor differences between the accused product and the patent drawings, and whether those differences are sufficient to distinguish the designs in the mind of an ordinary observer.
• A third question will relate to willfulness: what evidence, beyond the alleged visual similarity of the products, can Plaintiff provide to establish that Defendants had pre-suit knowledge of the '876 patent, as required to support the willfulness allegation?