Knix Wear Inc v. Diva Intl Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Knix Wear Inc. (Ontario, Canada)
  • Defendant: Diva International Inc. (Ontario, Canada)
  • Plaintiff’s Counsel: Kolitch Romano Dascenzo Gates LLC
• Case Identification: [Knix Wear Inc.](https://ai-lab.exparte.com/party/knix-wear-inc) v. [Diva International Inc.](https://ai-lab.exparte.com/party/diva-intl-inc), 3:24-cv-01436, D. Or., 08/29/2024
• Venue Allegations: Venue is asserted on the basis that Defendant is a foreign corporation not resident in the United States and may therefore be sued in any judicial district. The complaint alleges personal jurisdiction exists due to Defendant’s purposeful sales of the accused products into Oregon through its e-commerce website.
• Core Dispute: Plaintiff alleges that Defendant’s reusable period underwear product infringes three U.S. patents directed to the construction of absorbent garments using seamless bonding technology.
• Technical Context: The technology relates to absorbent undergarments, such as period underwear, designed to be leak-proof, comfortable, and discreet under clothing by replacing traditional stitching with bonded seams.
• Key Procedural History: The complaint alleges that Defendant had knowledge of Plaintiff's patent rights since at least 2019, when Defendant unsuccessfully proposed a white-label manufacturing arrangement with Plaintiff. Plaintiff also alleges sending formal notice of infringement via a CEO email on October 11, 2023, and a subsequent demand letter from counsel on December 6, 2023, followed by unsuccessful resolution negotiations. These allegations form the basis for the claim of willful infringement.

Case Timeline

Date	Event
2013-05-03	Priority Date for '479, '480, '931 Patents
2019-10-15	U.S. Patent No. 10,441,479 Issued
2019-10-15	U.S. Patent No. 10,441,480 Issued
2023-08-29	U.S. Patent No. 11,737,931 Issued
2023-10-11	Accused Product purchased by Plaintiff
2023-10-11	Plaintiff's CEO sends notice email to Defendant's CEO
2023-12-06	Plaintiff's counsel sends demand letter to Defendant
2024-08-29	Complaint Filing Date

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

U.S. Patent No. 10,441,479 - "Absorbent Garment," issued October 15, 2019

The Invention Explained

• Problem Addressed: The patent describes a need for absorbent garments, such as for stress incontinence or menstruation, that are not only functional but also "discrete, comfortable and desirable to wear" (’479 Patent, col. 5:8-10). It notes that traditional methods of stitching absorbent pads to undergarments can add "unseemly bulk" and create visibility issues under "tighter-fitting overgarments" (’479 Patent, col. 6:18-22).
• The Patented Solution: The invention is an undergarment construction that avoids stitching. It uses an "elastic bonding film" to attach a multi-layer absorbent assembly to the garment's body portion, specifically along the leg openings (’479 Patent, Abstract). The key is that the absorbent assembly has a thinner "peripheral region" where the bonding film is applied, creating a smooth, seamless transition that reduces bulk and the potential for leaks (’479 Patent, col. 7:24-44; Fig. 2).
• Technical Importance: This approach sought to merge the functionality of an absorbent product with the aesthetics of seamless, modern underwear, making such garments more "aesthetically compatible with tight-fitting clothing" (’479 Patent, col. 7:53-54).

Key Claims at a Glance

• The complaint asserts independent claim 1 (Compl. ¶20).
• Essential elements of claim 1 include:
  • An undergarment with a body portion, leg openings, and a crotch region.
  • An "absorbent assembly" in the crotch region with an "inner region" and a "peripheral region."
  • A structural requirement that the thickness of the peripheral region is less than the thickness of the inner region.
  • An "elastic bonding film" that lines the leg openings and overlies the peripheral region to bond the assembly to the body.
  • The undergarment is configured to be washable and reusable.
• The complaint reserves the right to assert dependent claims 3-5, 7, 8, 17, 20, and 21 (Compl. ¶20).

U.S. Patent No. 10,441,480 - "Absorbent Garment," issued October 15, 2019

The Invention Explained

• Problem Addressed: As with its parent, this patent addresses the challenge of creating effective, reusable absorbent garments that remain comfortable and discreet (’480 Patent, col. 1:18-30).
• The Patented Solution: This patent further details the layered structure of the absorbent component, explicitly claiming an "absorbent assembly" that includes both an "absorbent layer" and a "moisture-barrier layer" (’480 Patent, col. 9:8-9, Claim 1). This assembly is bonded to the garment body using "strips of elastic bonding film." The specific arrangement requires the moisture-barrier layer to face the garment's body portion, directly preventing fluid from passing through to the wearer's clothes (’480 Patent, col. 9:11-14).
• Technical Importance: By explicitly claiming the moisture-barrier layer and its orientation, the invention provides a more defined technical solution for leak prevention, while still leveraging the seamless bonding construction to maintain comfort and discretion.

Key Claims at a Glance

• The complaint asserts independent claim 1 (Compl. ¶26).
• Essential elements of claim 1 include:
  • An undergarment with a body portion, waistband, leg openings, and a crotch region.
  • An "absorbent assembly" that includes an "absorbent layer" and a "moisture-barrier layer."
  • The moisture-barrier layer is positioned between the absorbent layer and the body portion.
  • "Strips of elastic bonding film" bond the absorbent assembly to the body portion at the leg openings.
  • The undergarment is configured to be washable and reusable.
• The complaint reserves the right to assert dependent claims 2-4, 12, 13, 15, 16, 18, 19, 21-23, and 25 (Compl. ¶26).

U.S. Patent No. 11,737,931 - "Garments and Associated Methods," issued August 29, 2023

Technology Synopsis

This patent, a continuation in the same family, focuses on garments where an absorbent assembly is bonded to the body portion using elastic bonding film "without stitching" (’931 Patent, col. 9:39-44, Claim 13). The claims cover both the resulting garment and the manufacturing method, emphasizing the achievement of a seamless, stitch-free construction to provide a comfortable, leak-resistant, and aesthetically pleasing product (’931 Patent, Abstract).

Asserted Claims

Independent claims 1, 13, and 19 are asserted (Compl. ¶32).

Accused Features

The complaint alleges that the Accused Product's overall construction, which allegedly uses bonding film instead of stitching to attach its absorbent components to the garment body, infringes the '931 Patent (Compl. ¶13, 15, 32).

III. The Accused Instrumentality

Product Identification

• The accused instrumentality is the "DIVA™ Reusable Period Underwear" (UPC 841445000480) (“Accused Product”) (Compl. ¶13).

Functionality and Market Context

• The Accused Product is a line of reusable underwear designed for menstrual fluid absorption (Compl. ¶12). The complaint alleges it is "made according to manufacturing methods that infringe the Asserted Patents," suggesting a construction involving bonded, layered absorbent materials rather than traditional sewing (Compl. ¶13). The complaint provides an interior view of the Accused Product, showing a distinct absorbent pad area with what appears to be a sealed or bonded periphery (Compl. p. 5). The product is sold nationally through Defendant’s website and various retail partners (Compl. ¶12).

IV. Analysis of Infringement Allegations

The complaint references claim chart exhibits that were not publicly filed with the initial pleading (Compl. ¶15). The following is a prose summary of the infringement theories based on the complaint's narrative allegations.

• '479 Patent Infringement Allegations
  Plaintiff alleges that the Accused Product directly infringes at least claim 1 of the ’479 Patent (Compl. ¶20). The theory appears to be that the Accused Product’s physical structure embodies each element of the claim: it is a reusable undergarment containing an absorbent assembly in its crotch region (Compl. ¶13). This assembly is alleged to have a thinner edge (the "peripheral region") than its center (the "inner region"). Crucially, Plaintiff alleges the Accused Product uses an "elastic bonding film" along the leg openings to seamlessly bond this thinner periphery to the garment body, mirroring the core inventive concept of the ’479 Patent (Compl. ¶13, 20). The interior photo of the Accused Product is presented as visual evidence supporting the existence of a bonded absorbent region (Compl. p. 5).

• '480 Patent Infringement Allegations
  Plaintiff alleges the Accused Product infringes at least claim 1 of the ’480 Patent (Compl. ¶26). The infringement theory for this patent centers on the specific layered construction of the absorbent assembly. Plaintiff alleges that the Accused Product contains not only an absorbent layer but also a "moisture-barrier layer" positioned between the absorbent material and the main body of the underwear (Compl. ¶13). This entire assembly is alleged to be bonded to the garment with "strips of elastic bonding film," thus mapping to the elements of claim 1 of the ’480 Patent (Compl. ¶13, 26).

• Identified Points of Contention:

  • Technical Question: A key evidentiary dispute will likely concern the material and method used to bond the layers in the Accused Product. The court will need to determine if the material is, in fact, an "elastic bonding film" as claimed, or another type of adhesive or bonding technique that may fall outside the claim's scope.
  • Scope Question: The infringement analysis for the ’479 Patent will raise a factual question of whether the Accused Product's absorbent pad is constructed with a "peripheral region" that is demonstrably "less than the thickness" of the "inner region." The method of measurement and the materiality of any thickness difference will be points for argument.

V. Key Claim Terms for Construction

• The Term: "elastic bonding film" (asserted in '479 Patent, cl. 1; '480 Patent, cl. 1)

  • Context and Importance: This term is the central technological element of the asserted claims. The outcome of the case may depend on whether the material and method used to construct the Accused Product fall within the scope of this term. Practitioners may focus on this term because its definition will determine whether a range of modern adhesive technologies can be considered equivalent to what is claimed.
  • Intrinsic Evidence for a Broader Interpretation: The specification describes the purpose of the bonding film as enabling a "very smooth and seam-free" construction that is "aesthetically compatible with tight-fitting clothing" (’479 Patent, col. 7:51-54). A party could argue this functional description supports a broad definition covering any elastic adhesive that achieves a seamless bond.
  • Intrinsic Evidence for a Narrower Interpretation: The figures depict the "elastic bonding film" as distinct strips (e.g., 26a, 26b in Fig. 2) applied to the garment (’479 Patent, Fig. 2). A party could argue that the term "film" requires a pre-formed sheet of material, potentially excluding liquid adhesives applied and cured in place.

• The Term: "moisture-barrier layer" (asserted in '480 Patent, cl. 1)

  • Context and Importance: The presence and nature of this layer is a key limitation in the ’480 Patent. The infringement analysis will turn on whether the Accused Product contains a component that meets the definition of a "moisture-barrier layer."
  • Intrinsic Evidence for a Broader Interpretation: The specification describes this component functionally, stating that during construction, "the barrier film layer 24 is oriented so as to be positioned between the absorbent layer 22 and the body portion 10" (’480 Patent, col. 8:7-10). The patent also states the layer can be a "moisture-barrier treatment and/or film" (’480 Patent, col. 10:30-32, claim 6), which may support construing the term to include chemically treated fabrics, not just separate plastic-like films.
  • Intrinsic Evidence for a Narrower Interpretation: The term "layer" itself, along with references to a "barrier film layer 24" in the detailed description, could support an interpretation requiring a discrete, structurally separate material laminated or bonded within the assembly, as opposed to a fabric that has been treated to be water-resistant.

VI. Other Allegations

• Indirect Infringement: The complaint focuses on direct infringement under 35 U.S.C. § 271(a) (making, using, selling, or offering to sell) and § 271(g) (importing a product made by a patented process) (Compl. ¶1, 20, 26, 32). It does not contain specific factual allegations to support claims for indirect infringement (inducement or contributory infringement).
• Willful Infringement: The complaint alleges willful infringement for all three asserted patents (Compl. ¶21, 27, 33). The allegations are based on both pre- and post-notice conduct. Plaintiff alleges Defendant had pre-suit knowledge of the patents and technology since at least 2019, stemming from a rejected white-label business proposal (Compl. ¶16). It further alleges that Defendant received explicit notice of infringement via a CEO email on October 11, 2023, and a formal demand letter on December 6, 2023, but continued its infringing activities (Compl. ¶17).

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

• A core issue will be one of structural and material identity: does a physical teardown and analysis of the Accused Product reveal a construction that meets the specific architectural and material requirements of the claims, particularly the use of an "elastic bonding film" and, for the '479 patent, a "peripheral region" of reduced thickness?
• A central legal question will be one of claim construction: can the term "elastic bonding film," as used in the patents, be construed to cover the specific adhesive material and bonding process used by the Defendant, or is it limited to a narrower class of materials, such as pre-formed film strips?
• A key question for damages will be one of willfulness: do the factual allegations of a rejected business proposal followed by explicit infringement notices establish that Defendant's conduct was egregious enough to warrant enhanced damages under 35 U.S.C. § 284?