Mishelevich v. Gao RFID Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: David Mishelevich (United States)
  • Defendant: GAO RFID Inc. (Canada)
  • Plaintiff’s Counsel: Hecht Partners LLP
• Case Identification: 1:25-cv-03117, S.D.N.Y., 04/15/2025
• Venue Allegations: Venue is asserted based on Defendant maintaining a "Head Office US" and registered agent in the district, conducting sales and marketing activities to customers in the district, and being registered with the New York Department of State.
• Core Dispute: Plaintiff alleges that Defendant’s RFID-based hand hygiene compliance system infringes a patent related to using RFID technology to automatically trigger and deliver stimuli for behavioral modification.
• Technical Context: The technology at issue involves the use of Radio-Frequency Identification (RFID) systems to monitor the proximity of a subject to a tagged object and provide automated feedback to encourage or discourage certain behaviors, a field with applications in healthcare compliance and safety monitoring.
• Key Procedural History: The complaint does not reference any prior litigation, Inter Partes Review (IPR) proceedings, or licensing history related to the patent-in-suit.

Case Timeline

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

U.S. Patent No. 7,248,171 - "RFID Systems for Automatically Triggering and Delivering Stimuli," issued July 24, 2007

• The Invention Explained:
  • Problem Addressed: The patent describes a need for improved automated systems for behavior modification. Prior art systems were noted as often requiring manual triggering of feedback, not utilizing RFID technology, or, if using RFID, failing to incorporate appetitive (positive) or aversive (negative) stimuli to actively condition behavior (’171 Patent, col. 2:11-17, col. 3:4-14).
  • The Patented Solution: The invention is a system that uses an RFID reader, associated with a person or "subject," to detect RFID tags placed on objects or "entities." When a tag is detected, a host computer determines if pre-set criteria are met and, if so, triggers a stimulus generator to deliver feedback to the subject (’171 Patent, Abstract; col. 3:24-37). The system is designed to automate processes like aversion therapy by creating a direct link between an action (e.g., approaching a tagged object) and a consequence (a delivered stimulus), as illustrated in the system diagram in Figure 1A (’171 Patent, Fig. 1A).
  • Technical Importance: The technology offered a way to apply principles of behavioral conditioning automatically and in real-time using increasingly inexpensive and ubiquitous RFID components, potentially moving such therapies out of a clinical setting and into a subject's daily environment (’171 Patent, col. 4:58-63).
• Key Claims at a Glance:
  • The complaint asserts infringement of "at least claims 1-20," with a specific narrative focus on Claim 1 (Compl. ¶17, ¶20).
  • Independent Claim 1 requires:
    • Detecting the presence of an RFID tag located on an "entity that is to be avoided or sought by said subject" using an RFID reader connected to a host computer.
    • Sending a control signal to a "stimulus generator" based on criteria in the host computer.
    • Delivering a generated "stimulus" to the subject via an output device to provide feedback.
  • The complaint reserves the right to assert additional claims (Compl. ¶20).

III. The Accused Instrumentality

• Product Identification: Defendant’s "RFID-based hand hygiene compliance system" (Compl. ¶16).
• Functionality and Market Context:
  • The system is marketed for use in healthcare settings to monitor and improve handwashing compliance among workers (Compl. ¶15-16).
  • Functionally, healthcare workers (subjects) wear RFID badges. RFID readers are installed at hand hygiene stations (e.g., soap dispensers) (Compl. ¶16, ¶22).
  • When a worker with a badge approaches a station, the reader detects their presence, and a "back-end computer system" logs the interaction to track compliance with hygiene protocols (Compl. ¶22).
  • The system is alleged to provide "behavioral feedback" to the worker, including "alerts and compliance scores," to reinforce proper handwashing behavior (Compl. ¶22). This feedback can be delivered through visual means like "compliance dashboards or scores" or through "auditory/visual cues at the dispenser" (Compl. ¶22).
  • No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

• ’171 Patent Infringement Allegations

• Identified Points of Contention:
  • Scope Questions: Claim 1 recites an RFID tag "located on an entity that is to be avoided or sought by said subject." The complaint alleges the tag is on the healthcare worker, who is the "subject" (Compl. ¶22). This raises the question of whether the accused system meets this limitation as written. The patent includes dependent claims that explicitly describe a configuration with the tag on the subject (e.g., ’171 Patent, col. 12:18-23, Claim 6), which may suggest that the scope of independent Claim 1 is limited to configurations where the tag is on the object/entity.
  • Technical Questions: A key question is whether the "alerts, compliance dashboards or scores" alleged in the complaint (Compl. ¶22) function as a "stimulus" within the meaning of the patent. The analysis may focus on whether this type of informational feedback performs the same function as the direct, sensory stimuli (e.g., electrical, sound, scent) described in the patent's preferred embodiments, which are framed in the context of behavioral conditioning (’171 Patent, col. 6:42-47).

V. Key Claim Terms for Construction

• The Term: "stimulus"

  • Context and Importance: The definition of "stimulus" is critical, as the accused system's feedback mechanisms are described as "alerts, compliance dashboards or scores" (Compl. ¶22). The case will turn on whether these forms of feedback are encompassed by the claim term. Practitioners may focus on this term because its construction will likely determine whether informational reporting can be considered an infringing "stimulus."
  • Intrinsic Evidence for a Broader Interpretation: The patent specification mentions that logged events can be used for "later feedback either via a stimulus or a report" (’171 Patent, col. 5:14-15). This language may support an interpretation that includes informational reports or dashboard data.
  • Intrinsic Evidence for a Narrower Interpretation: The patent’s background and summary are heavily focused on "aversion therapy," "Electronic-Impulse Counter-Conditioning," and delivering sensory feedback like a "tingling sensation," sound, or odor (’171 Patent, col. 2:31-33; col. 6:42-47). This context may support a narrower construction limited to direct sensory inputs intended for operant conditioning.

• The Term: "an entity that is to be avoided or sought"

  • Context and Importance: Claim 1 requires the RFID tag to be located "on an entity," whereas the complaint alleges the tag is on the "subject" (the worker) (Compl. ¶22). The infringement analysis for Claim 1 depends on how this phrase is construed relative to the location of the tag.
  • Intrinsic Evidence for a Broader Interpretation: The patent's general description focuses on detecting when a subject "comes within range" of a tag to trigger an event, which could be argued as the core of the invention regardless of whether the tag is on the subject or the object (’171 Patent, col. 3:32-34).
  • Evidence for a Narrower Interpretation: The plain language of Claim 1 distinguishes between the "subject" and the "entity." Furthermore, the patent includes separate dependent claims (e.g., Claim 6) that explicitly recite the alternative configuration where the tag is "located on the subject" (’171 Patent, col. 12:18-20). The doctrine of claim differentiation could support an argument that the scope of Claim 1 is intentionally different and does not cover tags on the subject.

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement. It asserts that Defendant has knowledge of the ’171 Patent and intends for its customers to use the accused systems in an infringing manner (Compl. ¶23). It further alleges the accused products have no substantial non-infringing uses and are especially adapted for infringement (Compl. ¶24).
• Willful Infringement: The complaint does not contain a specific count for willful infringement. However, the prayer for relief seeks a finding that the case is "exceptional" and an award of attorney fees under 35 U.S.C. § 285, which suggests an intent to prove culpable conduct (Compl. p. 6).

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

• A core issue will be one of claim scope versus infringement theory: Can Plaintiff prove that the accused system, where the RFID tag is on the "subject" (worker), infringes independent Claim 1, which requires the tag to be on an "entity to be...sought"? The resolution may depend on the court's construction of the claim or on the plaintiff's ability to prove infringement of dependent claims that recite this alternative configuration.
• The case will also present a central question of claim construction: Does the term "stimulus," as used in a patent grounded in the principles of behavioral conditioning with sensory feedback, encompass the "compliance dashboards or scores" generated by the accused system?
• A third key question will be evidentiary: What facts will Plaintiff present to establish Defendant’s knowledge of the ’171 Patent and specific intent to encourage infringement, as required to support the claims for indirect infringement and a potential finding of an exceptional case?