Pom Group Inc v. Schedule A

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: POM Group Inc, dba Komuso Design (Florida)
  • Defendant: The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A (People's Republic of China and other foreign jurisdictions, on information and belief)
  • Plaintiff’s Counsel: Whitewood Law PLLC
• Case Identification: 2:25-cv-01909, W.D. Pa., 12/09/2025
• Venue Allegations: Plaintiff alleges venue is proper because Defendants have committed acts of infringement in the district by targeting and making sales to consumers in Pennsylvania through online e-commerce platforms.
• Core Dispute: Plaintiff alleges that Defendants’ online stores sell unauthorized imitation “breathing necklaces” that infringe a utility patent for a breathing control device and a design patent for the device’s ornamental appearance.
• Technical Context: The technology concerns a wearable wellness device, fashioned as jewelry, designed to guide a user’s exhalation to promote mindfulness and reduce stress.
• Key Procedural History: The complaint does not reference prior litigation, inter partes review proceedings, or licensing history concerning the asserted patents. The action is brought against a large number of unidentified online sellers, a common strategy in anti-counterfeiting enforcement.

Case Timeline

Date	Event
2016-08-25	’195 Patent - Earliest Priority Date
2017-08-18	’529 Design Patent - Earliest Priority Date
2019-02-12	’529 Design Patent - Issue Date
2022-09-06	’195 Patent - Issue Date
2025-12-09	Complaint Filing Date

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

U.S. Patent No. 11,433,195 - "BREATHING DEVICE AND METHOD OF CONTROLLING BREATHING USING THE DEVICE"

• Patent Identification: U.S. Patent No. 11,433,195, "BREATHING DEVICE AND METHOD OF CONTROLLING BREATHING USING THE DEVICE," issued September 6, 2022.

The Invention Explained

• Problem Addressed: The patent background describes stress and anxiety as significant societal problems, noting that while breathing techniques can help, many people lack awareness or a physical tool to guide their practice. It identifies a need for a "tangible accessory to physically help guide breathe and remind them to be calm" (’195 Patent, col. 2:48-50).
• The Patented Solution: The invention is a wearable, hollow tube styled as a piece of jewelry, such as a necklace or bracelet. It is engineered with specific dimensions to intentionally lengthen a user's exhalation, which is described as a way to slow the breathing rhythm, activate the parasympathetic nervous system, and induce a state of calm (’195 Patent, col. 2:52-61; col. 4:46-56). The device serves both as a functional tool for breathwork and a physical reminder to remain mindful (’195 Patent, col. 5:21-31).
• Technical Importance: The invention provides a non-digital, physical apparatus that makes abstract mindfulness and breathing control concepts more tangible and accessible for users.

Key Claims at a Glance

• The complaint asserts independent claim 1 and dependent claims 2-7 (Compl. ¶¶43, 61).
• Independent Claim 1 recites the essential elements of the breathing device:
  • A breathing device in a form of jewelry consisting essentially of:
  • an elongated tube with a length of 30 to 75 millimeters and a central chamber with a uniform diameter of 3 to 6 millimeters;
  • an opening at a first end constructed for insertion into a user's mouth and an exit at a second end;
  • a securing structure, such as a necklace or bracelet, connected to the tube to secure it on the user as jewelry;
  • wherein the specified length and diameter are constructed to restrict and slow a user's exhaled breath to a desired rate.

U.S. Design Patent No. D840,529 - "BREATHING APPARATUS"

• Patent Identification: U.S. Design Patent No. D840,529, "BREATHING APPARATUS," issued February 12, 2019.

The Invention Explained

• Problem Addressed: This patent protects the novel, non-functional ornamental appearance of the breathing apparatus rather than its utility.
• The Patented Solution: The claimed design, as illustrated in the patent's figures, consists of an elongated, cylindrical tube with a smooth surface. One end is cut at an angle to form a mouthpiece, while the other end features a bail or loop for attachment to a necklace or chain, as depicted in a table within the complaint (Compl. p. 15). The overall visual impression is that of a minimalist, modern pendant.
• Technical Importance: The design provides a distinctive aesthetic that allows the functional breathing device to be worn as fashionable jewelry.

Key Claims at a Glance

• Design patents contain a single claim for the ornamental design as shown and described in the drawings. The complaint asserts this single claim (Compl. ¶44).

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are "unauthorized imitations" of Plaintiff's "Komuso Products" or "Breathing Necklaces," sold by Defendants through various online e-commerce storefronts (Compl. ¶¶1, 9-10). The complaint refers to them collectively as the "Infringing Products" (Compl. ¶1).

Functionality and Market Context

• The complaint alleges the accused products are breathing devices worn as jewelry that are "identical to or substantially similar to those claimed in the '195 Patent" (Compl. ¶43). The products are alleged to possess the core structural elements of the patented invention, including an elongated tube of specific dimensions with a mouth opening and an attachment for a necklace (Compl. ¶43). The complaint includes side-by-side images comparing Plaintiff's product to an "Infringing Listing," suggesting the accused products mimic the patented device's function and appearance to target the same customers (Compl. p. 20). Plaintiff alleges that prior to the infringement, it held a dominant market share which has since "plummeted to approximately 20%" due to the sale of these products (Compl. ¶37).

IV. Analysis of Infringement Allegations

’195 Patent Infringement Allegations

The complaint alleges that the Infringing Products contain "each and every element of at least independent claims 1-7," but does not provide the referenced claim chart exhibit (Compl. ¶¶43, 45). The following table summarizes the infringement theory for claim 1 based on the narrative allegations in the complaint.

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
an elongated tube having a length of 30 to 75 millimeters... a central chamber having a uniform diameter of 3 to 6 millimeters	The accused products are alleged to be an elongated tube with a length and a central chamber diameter falling within the claimed ranges.	¶43	col. 8:16-20
an opening on the first end of the elongated tube constructed to be inserted into a user's mouth; an exit on the second end of the elongated tube	The accused products are alleged to have an opening for a user's mouth at one end and an exit at the other.	¶43	col. 8:21-23
a securing structure connected to the elongated tube, the securing structure comprises a necklace or bracelet is configured to secure the elongated tube on the user as jewelry	The accused products are alleged to have a securing structure, such as a bail connected to a necklace or bracelet, that allows the device to be worn as jewelry.	¶43	col. 8:24-27
wherein the length and the diameter of the elongated tube are being constructed to restrict an exhaled breath of a user to slow breathing of the user to a desired breathing rate	The complaint alleges that the dimensions of the accused products are engineered to lengthen a user's exhalations.	¶43	col. 8:28-31

’529 Design Patent Infringement Allegations

The infringement theory for the ’529 Patent is based on the "ordinary observer" test (Compl. ¶64). The complaint alleges that the ornamental design of the accused products is "substantially the same" as the patented design, such that the resemblance would deceive a consumer into purchasing an infringing product believing it to be Plaintiff's product (Compl. ¶64). This allegation is supported by side-by-side visual comparisons that, according to the complaint, demonstrate "direct and systematic reproduction of each unique structural and ornamental element" (Compl. ¶65, p. 20).

• Identified Points of Contention:
  • Scope Questions (’195 Patent): The preamble of claim 1 uses the transitional phrase "consisting essentially of." A potential dispute may arise over whether any additional features on the accused products materially alter the "basic and novel properties" of the claimed invention, which centers on slowing breath via a wearable tube.
  • Technical Questions (’195 Patent): The complaint alleges on "information and belief" that the accused products meet specific dimensional and functional limitations. A central factual question will be whether discovery confirms that the accused products actually have a length of 30-75mm and a uniform diameter of 3-6mm, and whether that structure is in fact "constructed to restrict" and "slow breathing" as claimed.
  • Factual Questions (’529 Patent): The core of the design patent dispute will be a factual comparison of the accused products to the patented design. The outcome will depend on whether the trier of fact finds the overall visual appearances to be substantially similar from the perspective of an ordinary purchaser.

V. Key Claim Terms for Construction

• The Term: "consisting essentially of" (Claim 1)

  • Context and Importance: This term opens the door to infringement by products that include additional elements, but only if those elements do not materially affect the invention's basic and novel properties. Its construction will define how different an accused product can be from the recited elements while still infringing.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party could argue the "basic and novel properties" are narrowly confined to the purely mechanical function of slowing breath, allowing for non-functional additions like decorative engravings or different attachment mechanisms.
    • Evidence for a Narrower Interpretation: The specification's emphasis on the device as a "fashionable accessory" and a "beautiful keepsake" could support an argument that the basic properties include its minimalist aesthetic (’195 Patent, col. 4:19; col. 6:6-7). Under this view, additions that alter this aesthetic could be considered "material."

• The Term: "constructed to restrict an exhaled breath of a user to slow breathing" (Claim 1)

  • Context and Importance: This functional language requires more than the device incidentally or inherently slowing breath; it suggests the device must be purposefully designed and built to achieve this result. The dispute will center on whether the accused products were merely made with certain dimensions or were intentionally engineered for this physiological purpose.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party may argue that any tube falling within the claimed dimensional ranges is inherently "constructed to" perform the claimed function, making this a structural rather than a functional test.
    • Evidence for a Narrower Interpretation: The specification provides a detailed explanation of how longer exhalations activate the parasympathetic nervous system to induce calm (’195 Patent, col. 4:31-56). This could support an interpretation requiring a specific, engineered airflow resistance sufficient to achieve this physiological effect, not just any incidental slowing.

VI. Other Allegations

• Indirect Infringement: The complaint makes a conclusory allegation of direct and indirect infringement, but it does not plead specific facts to support a claim of induced or contributory infringement against the sellers (Compl. ¶53).
• Willful Infringement: Willfulness is alleged for both patents. The basis is constructive notice, arising from Plaintiff's alleged marking of its patented products with the patent numbers in compliance with 35 U.S.C. § 287 (Compl. ¶¶56, 68). The complaint also alleges "willful and deliberate copying" and "exact copying," suggesting Defendants acted with knowledge of the patented inventions (Compl. ¶¶43, 69).

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

• A core issue will be one of functional proof: Can the plaintiff demonstrate that the accused products, sourced from numerous unidentified online sellers, not only meet the precise dimensional requirements of claim 1 of the ’195 patent but are also "constructed to" achieve the claimed physiological function of slowing a user's breath?
• A second central question will be a test of visual identity: For the ’529 design patent, does the overall ornamental appearance of the accused products create substantially the same visual impression as the patented design in the eyes of an ordinary observer, or are there sufficient differences to avoid infringement?
• Finally, a significant practical challenge will be one of enforcement and jurisdiction: Given that the defendants are alleged to be a diffuse and potentially transient group of foreign-based online sellers, can the plaintiff effectively establish personal jurisdiction and obtain and enforce a meaningful remedy against them?