Barrier Guard Tech LLC v. Apex Fabrication & Design Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Barrier Guard Technologies, LLC (Wyoming)
  • Defendant: Apex Fabrication & Design, Inc. (Pennsylvania)
  • Plaintiff’s Counsel: Falcucci Marquardt Legal, LLC
• Case Identification: 5:25-cv-01368, E.D. Pa., 03/14/2025
• Venue Allegations: Venue is alleged to be proper based on Defendant maintaining a regular and established business presence in the Eastern District of Pennsylvania.
• Core Dispute: Plaintiff alleges that Defendant’s anti-ram bollard systems infringe a patent related to shallow-mount vehicle barrier foundations.
• Technical Context: The technology concerns anti-ram vehicle barriers, specifically systems designed for installation with minimal excavation, a key feature for deployment in developed urban areas with extensive subsurface utilities.
• Key Procedural History: U.S. Patent No. 8,215,865 has undergone two ex parte reexaminations. A first certificate issued in 2020 confirmed the patentability of all claims. However, a second certificate issued in 2022 cancelled Claim 1, the primary claim asserted in the complaint. The complaint was filed more than two years after this cancellation.

Case Timeline

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

U.S. Patent No. 8,215,865 - "Anti-Ram System and Method of Installation"

The Invention Explained

• Problem Addressed: The patent describes a problem with conventional anti-ram bollard systems, which typically require deep excavations (e.g., several feet) to install. Such deep foundations are costly, time-consuming, and often impractical in developed urban areas due to the presence of underground utilities like gas, water, and communication lines (’865 Patent, col. 1:50-2:10).
• The Patented Solution: The invention proposes a bollard system with a shallow-mounted foundation, referred to as a base or pad. This base is a framework or "grillage" of intersecting structural members that sits in a shallow excavation (’865 Patent, Abstract). Upon vehicle impact, forces are transmitted to this wide, shallow base, which is designed to transfer the load efficiently into the surrounding soil, resisting rotation and preventing a breach without requiring a deep anchor (’865 Patent, col. 2:41-49; col. 3:55-4:14). This design allows for pre-assembly and installation with minimal site disruption (’865 Patent, col. 2:30-34).
• Technical Importance: The shallow-mount design provides a method for retrofitting robust anti-ram security to existing buildings in dense urban environments where deep excavation is not a viable option (’865 Patent, col. 1:59-2:10).

Key Claims at a Glance

• The complaint asserts infringement of at least independent Claim 1 (Compl. ¶26).
• Essential elements of asserted Claim 1 include:
  • A base with a plurality of intersecting and tied-together structural members.
  • At least one bollard secured to the structural members and extending upwardly.
  • The base is configured for mounting in a shallow excavation with the bollard extending above grade.
  • The structural members are configured to retain supporting media (e.g., concrete) within the base to resist rotation from an impact.
• The complaint does not explicitly reserve the right to assert dependent claims, but alleges infringement of "one or more claims, including at least Claim 1" (Compl. ¶26).

III. The Accused Instrumentality

Product Identification

• The SFB-M30 and SRB-M30 bollard models ("Products") (Compl. ¶26).

Functionality and Market Context

• The complaint identifies the accused instrumentalities as "bollard models" but does not provide specific technical details regarding their construction, components, or method of installation (Compl. ¶26). The complaint alleges that Defendant manufactures, uses, imports, sells, and offers these products for sale (Compl. ¶26).

IV. Analysis of Infringement Allegations

The complaint alleges that the accused SFB-M30 and SRB-M30 products satisfy all elements of at least Claim 1 of the ’865 Patent (Compl. ¶¶26, 31). It further states that a detailed comparison is provided in a "Claim Chart attached hereto as Exhibit B" (Compl. ¶26). However, Exhibit B was not filed with the complaint. The narrative theory is that the accused products "practice the technology claimed by the '865 Patent" (Compl. ¶31).

No probative visual evidence provided in complaint.

• Identified Points of Contention:
  • Claim Validity: The most significant issue is that the complaint asserts Claim 1, which was cancelled during a second ex parte reexamination proceeding that concluded in November 2022, over two years before the complaint was filed (’865 Patent, C2 Certificate). An infringement claim based on a cancelled claim cannot be maintained.
  • Technical Questions: Assuming the plaintiff were to amend the complaint to assert a valid claim (e.g., Claim 16, which is similar to Claim 1 but recites a plurality of bollards), a central question would be evidentiary. The complaint lacks any factual allegations about the structure of the accused products. A dispute would arise over whether the accused SFB-M30 and SRB-M30 models actually have a base made of "intersecting and tied together" structural members configured for a "shallow excavation" as required by the claims.

V. Key Claim Terms for Construction

• The Term: "shallow excavation"
• Context and Importance: This term is central to the patent's asserted novelty over prior art deep-trench systems. The definition of "shallow" will dictate the boundary between the patented invention and conventional designs. Practitioners may focus on this term because its scope determines whether a wide range of foundation depths fall within the claim.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The term is not explicitly defined with a required numerical range in the specification's "Summary of the Invention," suggesting it could be interpreted functionally as an excavation that avoids the problems of deep trenching (e.g., utility interference) (’865 Patent, col. 2:30-34).
  • Evidence for a Narrower Interpretation: The specification provides specific exemplary dimensions, stating the shallow mount pad is "(5" to 14" in depth)" (’865 Patent, col. 2:42-43). Original Claim 4, which depended from Claim 1, further specified "the base has a height of 3 inches to 14 inches" (’865 Patent, col. 9:48-49). A defendant could argue these explicit ranges limit the term to depths within or near these disclosed values.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant induces infringement by distributing "product literature and website materials" that instruct end users on how to use the accused products in an infringing manner (Compl. ¶29). It also makes a general allegation of contributory infringement (Compl. ¶26).
• Willful Infringement: Willfulness is predicated on knowledge obtained "at least as of the service of the present complaint" (Compl. ¶24). The complaint alleges that despite this knowledge, Defendant "actively, knowingly, and intentionally continued to induce infringement" (Compl. ¶30), which may support a claim for post-suit willful infringement.

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

1. Viability of the Complaint: The primary issue is whether the complaint can survive a motion to dismiss. It asserts infringement of Claim 1, which was cancelled by a reexamination certificate issued well before the suit was filed. This raises the fundamental question of whether the plaintiff has stated a viable claim for relief or if the assertion of a known-cancelled claim warrants sanctions.

2. Scope of "Shallow Mount": Should the plaintiff amend the complaint to assert a valid claim, a key issue will be one of definitional scope. The case would likely turn on how the court construes the term "shallow excavation". Is the term defined by the specific numerical ranges provided in the patent's examples, or can it be interpreted more broadly to mean any foundation less deep than a traditional multi-foot trench?

3. Evidentiary Proof of Infringement: A core evidentiary question will be one of technical correspondence. The complaint currently provides no facts about the accused products' structure. The dispute will focus on what evidence, if any, demonstrates that Defendant’s bollard systems incorporate a "base comprising... a plurality of structural members which intersect and are tied together," as required by the patent's independent claims.