DCT
3:25-cv-01234
Ketoneaid Inc v. Suspend Aging LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Ketoneaid, Inc. (Delaware)
- Defendant: SUSPEND AGING L.L.C., d/b/a ALTRD HEALTH LLC d/b/a ALTRD APE COMPANY (Puerto Rico), and Ibok Ibok (individual)
- Plaintiff’s Counsel: Ferraiuoli
- Case Identification: 3:25-cv-01234, D.P.R., Filed 04/25/2025
- Venue Allegations: Venue is asserted in the District of Puerto Rico based on the defendants' residency and principal place of business in the district, the occurrence of a substantial portion of the alleged infringing conduct there, and harm caused to the Plaintiff within the district.
- Core Dispute: Plaintiff alleges that Defendant’s "Fun Ketones" line of beverages infringes a patent related to ketogenic beverage compositions that use D-1,3-butanediol as an alternative to ethanol.
- Technical Context: The technology operates in the nutritional supplement and alternative beverage market, focusing on products that can induce or maintain a state of ketosis for consumers following ketogenic diets or seeking alternatives to traditional alcohol.
- Key Procedural History: The complaint alleges that Plaintiff sent a cease and desist letter to Defendant on December 2, 2024, putting Defendant on notice of the asserted patent. Defendant is alleged to have acknowledged receipt of the letter on December 17, 2024, and confirmed its products contain the active ingredient at issue, which may be relevant to the claim of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2017-08-23 | ’963 Patent Priority Date |
| 2023-09-19 | ’963 Patent Issue Date |
| 2024-11-01 | Defendant's alleged "soft opening" of Accused Products |
| 2024-12-02 | Plaintiff sent cease and desist letter to Defendant |
| 2024-12-17 | Defendant allegedly acknowledged receipt of notice letter |
| 2025-04-25 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 11,760,963 - "Ketogenic Beer and Alcoholic Beverage Mixture Containing Non-Racemic Ethyl 3-Hydroxybutyrate and/or 1,3 Butanediol," issued September 19, 2023
The Invention Explained
- Problem Addressed: The patent's background describes the difficulty for individuals on a ketogenic diet to consume traditional alcoholic beverages like beer, which contain carbohydrates that can prevent or disrupt ketosis (’963 Patent, col. 3:20-24). It also notes that traditional ethanol consumption can lead to undesirable side effects, such as hangovers (’963 Patent, col. 4:36-39).
- The Patented Solution: The invention is a beverage composition that uses specific chemical compounds, primarily the D-isomer of 1,3-butanediol (D-1,3-BDO), in place of or in addition to ethanol (’963 Patent, Abstract). This compound serves as a "primary alcohol ingredient" that the body can metabolize into ketone bodies, thereby helping to initiate or maintain a state of ketosis while providing an intoxicating effect without the carbohydrates found in traditional beers (’963 Patent, col. 3:16-20, col. 3:25-34).
- Technical Importance: The technology provides a formulation for "keto-friendly" beverages that deliver an alcohol-like experience, addressing a consumer demand for wellness-oriented products and alternatives to conventional alcoholic drinks (’963 Patent, col. 1:11-17).
Key Claims at a Glance
- The complaint asserts independent claim 1 (’963 Patent, col. 6:16-29; Compl. ¶38).
- The essential elements of independent claim 1 are:
- A beverage comprising water
- at least 0.5 percent by volume D-1,3-butanediol
- no, or substantially no, L-1,3-butanediol
- optionally comprising one or more specified additives (e.g., D ethyl 3-hydroxybutyrate, ethanol)
- The complaint alleges infringement of "one or more claims" of the patent, suggesting other claims may be asserted later (Compl. ¶42).
III. The Accused Instrumentality
Product Identification
The accused products are a series of beverages sold under the brand name "Fun Ketones" (Compl. ¶1, ¶29).
Functionality and Market Context
The complaint alleges the "Fun Ketones" are marketed as alternative drinks to alcohol that provide a "buzz sensation" without containing alcohol (ethanol) (Compl. ¶31). The products are alleged to contain D-1,3 BDO as the active ingredient, which Defendant markets under the brand name "Betterhol" (Compl. ¶1, ¶32). The complaint provides an image from the defendant's website displaying five flavored cans of the "Fun Ketones" product, each labeled with "PARTY BETTER" and "ZERO SUGAR" (Compl. p. 8). Plaintiff positions the accused products as direct competitors to its own "Hard Ketones" product line (Compl. ¶30, ¶11b).
IV. Analysis of Infringement Allegations
'963 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A beverage comprising water... | The Accused Products are beverages, which are primarily water-based. | ¶39 | col. 6:16 |
| ...and at least 0.5 percent by volume D-1,3-butanediol... | The Accused Products are alleged to contain the "Active Ingredient" (identified as D-1,3 BDO) at a concentration of at least 0.5 percent by volume. | ¶39 | col. 6:17-18 |
| ...and no, or substantially no, L-1,3-butanediol... | The complaint alleges, upon information and belief, that the Accused Products contain no or substantially no L-1,3-butanediol. | ¶40 | col. 6:18-19 |
| ...the beverage further optionally comprising one or more additives selected from the group... | This element is optional. The complaint does not allege the presence of these specific additives, and their absence is consistent with the claim language. | N/A | col. 6:19-29 |
Identified Points of Contention
- Technical Question: The complaint alleges "upon information and belief" that the accused product contains "no, or substantially no, L-1,3-butanediol" (Compl. ¶40). A central evidentiary question will be whether discovery and chemical analysis of the "Fun Ketones" products can substantiate this allegation. The patent distinguishes between less effective racemic mixtures and the claimed chiral form, making this limitation critical (’963 Patent, FIG. 4).
- Scope Questions: The interpretation of the term "substantially no" will be a primary focus. The parties may dispute whether this term requires the complete absence of the L-isomer (e.g., below a detection threshold) or if it permits trace amounts or manufacturing impurities that do not materially alter the product's function.
V. Key Claim Terms for Construction
- The Term: "substantially no"
- Context and Importance: This term is critical because it distinguishes the claimed invention, which is based on the specific D-isomer of 1,3-butanediol, from a generic or racemic mixture that would contain both D- and L-isomers. The infringement analysis for Claim 1 hinges on proving the absence, or substantial absence, of the L-isomer in the accused products. Practitioners may focus on this term because proving a negative limitation can present unique evidentiary challenges, and its definition will dictate the required purity of the accused formulation.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party arguing for a broader definition might contend that "substantially no" should be interpreted functionally, meaning an amount of L-1,3-butanediol so low that it does not interfere with the ketogenic benefits attributed to the D-isomer. The patent does not appear to provide an explicit numerical range for this term.
- Evidence for a Narrower Interpretation: A party arguing for a narrower definition could point to the patent's repeated emphasis on the "D form" and its superior bioavailability as the core of the invention (’963 Patent, col. 2:27-29). This suggests an intent to exclude as much of the L-isomer as is commercially and technically feasible, potentially tying the definition to trace amounts or levels near the limits of detection.
VI. Other Allegations
- Indirect Infringement: The complaint makes a conclusory allegation of indirect infringement (Compl. ¶42) but does not provide sufficient detail for analysis of inducement or contributory infringement, as no specific facts are pleaded regarding Defendant's instructions to third parties or knowledge of their direct infringement.
- Willful Infringement: The complaint alleges that Plaintiff provided Defendant with actual notice of the ’963 Patent via a cease and desist letter on December 2, 2024. It further alleges that Defendant acknowledged receipt of this notice and continued its infringing conduct, which forms the basis for the willfulness claim (Compl. ¶¶43-44).
VII. Analyst’s Conclusion: Key Questions for the Case
The resolution of this dispute will likely depend on the answers to two central questions:
- A key evidentiary question will be one of chemical composition: Can Plaintiff produce technical evidence, such as laboratory testing, to prove that Defendant’s "Fun Ketones" products contain "no, or substantially no, L-1,3-butanediol," thereby meeting the critical negative limitation of the asserted claim?
- A core issue will be one of claim construction: How will the court define the scope of "substantially no"? The outcome of the case may turn on whether this term is construed to mean a near-complete absence of the L-isomer or if it permits a functionally insignificant quantity, a determination for which the patent itself provides limited explicit guidance.