DCT
1:25-cv-03865
Fixin Chips BH LLC v. E Mishan & Sons Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Fixin Chips BH LLC (New York)
- Defendant: E. Mishan & Sons Inc. (New York)
- Plaintiff’s Counsel: Blank Rome LLP
- Case Identification: 1:25-cv-03865, S.D.N.Y., 05/08/2025
- Venue Allegations: Plaintiff alleges venue is proper as Defendant is a New York corporation headquartered in the district, and a substantial portion of the events giving rise to the claim occurred in New York.
- Core Dispute: Plaintiff seeks a declaratory judgment that its "Powerflow v2" garden hose does not infringe Defendant's patent related to multi-layer garden hose construction.
- Technical Context: The technology concerns garden hoses constructed with an outer fabric layer over an inner metal sheath to provide durability without scratching surfaces.
- Key Procedural History: The complaint alleges that after Plaintiff launched its Powerflow v2 hose, Defendant E. Mishan & Sons Inc. ("Emson") reported to Amazon.com that the product infringed the patent-in-suit. This report allegedly led to the delisting of Plaintiff's product, prompting Plaintiff to file this action seeking a court declaration of non-infringement.
Case Timeline
| Date | Event |
|---|---|
| 2021-11-08 | ’826 Patent Priority Date |
| 2023-08-22 | ’826 Patent Issue Date |
| 2024-08-01 | Emson allegedly begins campaign against "Powerflow v1" hose |
| 2025-01-01 | "Powerflow v2" hose listed on Amazon.com |
| 2025-01-14 | Plaintiff allegedly notifies Emson that Powerflow v2 is a non-infringing design |
| 2025-04-01 | Emson files complaint with Amazon alleging infringement by Powerflow v2 |
| 2025-04-24 | Amazon delists the Powerflow v2 product |
| 2025-05-08 | Complaint for Declaratory Judgment filed |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 11,732,826, "Garden Hose With Metal Sheath And Fabric Cover," issued August 22, 2023.
The Invention Explained
- Problem Addressed: The patent's background notes that garden hoses with a bare metal sheath, while durable, may scratch surfaces like furniture and can become slippery when wet (’826 Patent, col. 1:13-17).
- The Patented Solution: The invention covers the metal sheath with a woven fabric sheath to prevent scratching and improve grip (’826 Patent, col. 2:63-65). To secure the outer fabric sheath to the inner metal sheath, the invention uses a "constricting band" at each end of the hose, which is disposed adjacent to a "shoulder-like feature" of the underlying metal sheath (’826 Patent, Abstract; Fig. 2).
- Technical Importance: This approach seeks to combine the kink-resistance of a metal sheath with the user-friendliness and non-damaging properties of a fabric exterior.
Key Claims at a Glance
- The complaint seeks a declaratory judgment of non-infringement as to all claims of the patent, focusing on independent claim 1 (Compl. ¶¶29, 31, 35).
- Independent Claim 1 of the ’826 Patent recites the following essential elements:
- A polymer inner tube for conveying water between a first and second coupler.
- A flexible metal sheath disposed over the inner tube, having a first shoulder near the first coupler and a second shoulder near the second coupler.
- A fabric sheath disposed over the metal sheath.
- The fabric sheath is fixed to the metal sheath by a "first constricting band disposed at the first shoulder and a second constricting band disposed at the second shoulder."
- The complaint notes that because the Powerflow v2 allegedly does not meet a limitation of independent claim 1, it also does not meet the limitations of dependent claims 2-12 (Compl. ¶35).
III. The Accused Instrumentality
- Product Identification: The "Powerflow v2" garden hose, offered for sale in various lengths and colors on Amazon.com under multiple Amazon Standard Identification Numbers (ASINs) (Compl. ¶¶2, 17).
- Functionality and Market Context:
- The Powerflow v2 is described as a non-expandable garden hose constructed of three layers: an inner plastic lining, a middle metal portion, and an outer fabric portion (Compl. ¶16).
- The complaint asserts that the Powerflow v2 was created as a "design around" the ’826 Patent (Compl. ¶16).
- Plaintiff alleges that selling through Amazon is vital to its business and that Emson's infringement report caused the product to be delisted, resulting in financial harm (Compl. ¶¶2, 12).
- A photograph of the Powerflow v2 packaging describes the product as a "NON-EXPANDABLE HEAVY DUTY STEEL HOSE" (Compl. p. 4).
IV. Analysis of Infringement Allegations
The complaint seeks a declaratory judgment of non-infringement. The core of its argument is that the Powerflow v2 product is missing a required element of claim 1.
- ’826 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Non-Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a fabric sheath disposed over the metal sheath and fixed to the metal sheath by a first constricting band disposed at the first shoulder and a second constricting band disposed at the second shoulder | The complaint alleges the Powerflow v2 product does not have the two claimed constricting bands. Instead, the outer fabric is allegedly "glued to the inner metal sheath." | ¶¶33-34 | col. 5:10-13 |
- Identified Points of Contention:
- Definitional Scope: The central dispute appears to be whether the method used to attach the fabric sheath in the Powerflow v2 (allegedly glue) falls within the scope of the claim term "constricting band." The complaint's non-infringement theory is premised on the term being limited to a separate, physical component.
- Technical Evidence: A key factual question will be how the Powerflow v2 is actually constructed. The complaint provides a close-up photograph purporting to show the end of the Powerflow v2 hose, where the fabric sheath meets the brass fitting without any visible external band (Compl. p. 9). This visual is contrasted with Figure 2 from the patent, which depicts a distinct constricting band (element 103) wrapped around the fabric sheath (Compl. p. 8). Another image from the product's Amazon listing highlights its "ADVANCED SEALING TECHNOLOGY" which "replaces traditional metal rings," a statement that may be used to argue for a technical difference (Compl. p. 6).
V. Key Claim Terms for Construction
- The Term: "constricting band"
- Context and Importance: This term is dispositive for the literal infringement analysis presented in the complaint. Plaintiff’s entire "design around" argument hinges on its product lacking a "constricting band." Practitioners may focus on this term because its construction will likely determine the outcome of the literal infringement question.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A patentee might argue that the term should be read functionally to cover any component that "constricts" or fixes the fabric to the metal sheath. The patent specification states that the band may be "in the form of a band or bands, rope or ropes, or wire or wires, made of nylon, metal, or any other suitable material," which suggests a variety of forms are contemplated (’826 Patent, col. 2:25-27).
- Evidence for a Narrower Interpretation: The plaintiff will likely argue that the plain meaning of "band" implies a distinct, circumferential element. This is supported by the patent's consistent depiction of the band as a separate component (element 103) that is "disposed on the outside of fabric sheath 102" and "tightly fitted to pin" it in place (’826 Patent, Fig. 2; col. 2:18-20). The use of the term "disposed at the... shoulder" could also suggest a specific physical placement of a separate component, rather than an adhesive layer.
VI. Other Allegations
- Indirect Infringement: The complaint seeks a declaration of non-infringement for indirect infringement, arguing that because there is no direct infringement of any claim, there can be no secondary liability (Compl. ¶37).
- Willful Infringement: This allegation is not applicable, as the plaintiff is the accused infringer. However, the plaintiff does allege that Emson's infringement report to Amazon was made in "bad faith" and requests that the court declare this an "exceptional case" under 35 U.S.C. § 285, which would entitle the plaintiff to an award of attorneys' fees (Compl. ¶10(b)).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim construction: will the term "constricting band" be interpreted narrowly to mean a discrete, physical component as depicted in the patent’s figures, or can it be construed more broadly to encompass other fastening means, such as an adhesive?
- A second central question, should literal infringement fail, will be one of technical equivalence: does fixing a fabric sheath with glue perform substantially the same function, in substantially the same way, to achieve substantially the same result as fixing it with a "constricting band"? The analysis may focus on whether chemical adhesion (glue) is substantially different from the mechanical compression implied by a "band."
- Beyond infringement, a key issue will be one of enforcement conduct: did the patentee's (Emson's) report of infringement to Amazon constitute bad faith, particularly in light of the plaintiff’s allegation that it provided prior notice of its "design around" theory? This will be central to the plaintiff's request for attorneys' fees.