DCT

3:14-cv-01779

Ozwest Inc v. Bed Bath & Beyond Inc

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 3:14-cv-01779, D. Or., 11/20/2014
  • Venue Allegations: Venue is alleged to be proper because Defendants are subject to personal jurisdiction in the District of Oregon and have committed alleged acts of patent infringement in the district, including selling or offering to sell infringing products to local customers.
  • Core Dispute: Plaintiff, the exclusive licensee of a patent for a hand-thrown toy projectile, alleges that a toy distributor and multiple retailers infringe the patent by making, importing, and/or selling a toy "indoor/outdoor archery set" containing infringing arrows.
  • Technical Context: The technology relates to toy projectiles, specifically improving flight distance and velocity by designing the projectile's tail not only for stabilization but also as a flexible grip that creates a "whipping effect" to store and release energy during a throw.
  • Key Procedural History: Plaintiff Ozwest, Inc. states it is the exclusive U.S. licensee of the patent-in-suit, which gives it standing to sue for infringement. The filing is a First Amended Complaint, but no other prior litigation, licensing history, or prosecution events are detailed in the document.

Case Timeline

Date Event
2008-07-02 Earliest Priority Date for '789 Patent
2013-01-08 U.S. Patent No. 8,348,789 Issues
2014-11-20 Complaint Filing Date

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

U.S. Patent No. 8,348,789 - Throwing Toy With Tail And In-line Tab Grip, Issued January 8, 2013

The Invention Explained

  • Problem Addressed: The patent notes that while prior art toy projectiles like footballs often incorporated tails for flight stabilization, the tail itself played no role in the throwing process; the toy was still grasped and thrown by its main body. (’789 Patent, col. 1:45-49). This approach failed to leverage the tail for increasing launch velocity.
  • The Patented Solution: The invention proposes a projectile with a shaft composed of two distinct sections: a main "semi-flexible" section and a rear "flexible section" shaped into a tab for gripping. (’789 Patent, col. 2:6-9; Abstract). By throwing the projectile using the flexible tail tab, the inertia of the weighted head causes the stiffer, semi-flexible portion of the shaft to bend, storing spring energy. (’789 Patent, col. 2:9-13). This energy is released upon letting go, creating a "whipping effect" that launches the projectile at a higher velocity than if thrown by its head. (’789 Patent, col. 2:13-18). Figure 4 illustrates this dynamic throwing motion. (’789 Patent, Fig. 4).
  • Technical Importance: The invention describes a secondary use for a projectile's tail, transforming it from a passive stabilizer into an active component of the launch mechanism to increase flight distance and speed. (’789 Patent, col. 1:50-54).

Key Claims at a Glance

  • The complaint asserts infringement of at least independent claim 1. (Compl. ¶15).
  • The essential elements of independent claim 1 are:
    • A molded plastic shaft having a first end, a second end, a semi-flexible section and a flexible section wherein said flexible section is interposed between said semi-flexible section and said second end;
    • A head structure coupled to said first end of said shaft; and
    • A plurality of stabilizing fins radially extending from said semi-flexible section of said shaft.
  • The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

The accused products are arrows contained within a toy "indoor/outdoor archery set" sold under various trade names, including "The Black Series" by "Shift 3." (Compl. ¶15).

Functionality and Market Context

The complaint alleges that Defendant MerchSource is an importer and distributor of the accused archery sets, which it supplies to the other co-defendant retailers. (Compl. ¶16; Introduction). The retailers are alleged to sell and offer to sell the accused products through physical stores and websites accessible to consumers throughout the United States. (Compl. ¶15). The complaint includes a photograph of Plaintiff's own "Zartz" arrow product, which it alleges is covered by the '789 Patent and has been "copied" by Defendant MerchSource. (Compl. p. 4, ¶13). It does not, however, contain any photographs or specific technical descriptions of the accused arrows themselves.

IV. Analysis of Infringement Allegations

The complaint does not provide sufficient detail for analysis of infringement on an element-by-element basis. It makes a general allegation that the arrows contained in the accused "indoor/outdoor archery set" infringe "at least claim 1 of the ’789 Patent, literally or by equivalents" but does not map specific features of the accused arrows to the claim limitations. (Compl. ¶15). The complaint uses a diagram from the patent itself, Figure 4, to illustrate the patented throwing method. (Compl. p. 5).

V. Key Claim Terms for Construction

  • The Term: "semi-flexible section" and "flexible section"
  • Context and Importance: The distinction between these two sections is the core of the invention, as their different material properties create the energy-storing "whipping effect." The infringement analysis will depend entirely on whether the accused arrows possess a shaft with two structurally and functionally distinct sections that meet these definitions. Practitioners may focus on how much of a difference in flexibility is required to satisfy these relative terms.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The terms are not given explicit numerical definitions, suggesting they are defined by their relative properties. The patent describes the entire shaft as being made of a "flexible plastic that can bend at least 90° without breaking," which might suggest that "semi-flexible" does not mean rigid, but merely less flexible than the "flexible section." (’789 Patent, col. 3:12-15).
    • Evidence for a Narrower Interpretation: The patent provides specific structural differences that create the varying flexibility, stating the "flexible section" is "thinner and wider than the remainder of the shaft" (the semi-flexible section). (’789 Patent, col. 3:39-42). It further states the flexible section is "far more flexible" than the remainder. (’789 Patent, col. 3:42-44). An opposing party could argue these descriptions require a significant, measurable difference in both dimension and flexibility, not just any minor variation.

VI. Other Allegations

  • Indirect Infringement: While the prayer for relief seeks damages for "direct and indirect infringement," the factual allegations in the body of the complaint focus on acts of direct infringement under 35 U.S.C. § 271(a), such as making, selling, offering to sell, and importing the accused products. (Compl. ¶15, ¶16; Prayer ¶3). The complaint does not plead specific facts to support claims of induced or contributory infringement.
  • Willful Infringement: The complaint does not contain a formal count for willful infringement. However, it alleges in its introduction that Defendant MerchSource "has copied the patented Zartz Arrow" and shipped "knockoffs" to retailers. (Compl., Introduction). The prayer for relief requests enhanced damages if the case is found to be "exceptional." (Prayer ¶5).

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

The litigation will likely center on two primary questions:

  1. A core evidentiary question of structure: Does the shaft of the accused arrow actually have two distinct sections with demonstrably different flexibility profiles? The complaint makes this allegation but provides no specific evidence, such as photographs or measurements of the accused product, to support it.

  2. A central issue of claim construction: How will the court define the relative terms "flexible section" and "semi-flexible section"? The case will turn on whether the physical characteristics of the accused arrow's shaft fall within the scope of these terms as defined by the patent's specification and figures.