Hyper Ice Inc v. Kroger Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Hyper Ice, Inc. (California) and Hyperice IP Subco, LLC (Delaware)
  • Defendant: The Kroger Company (Ohio)
  • Plaintiff’s Counsel: Scheef & Stone, LLP; Miller Barondess LLP
• Case Identification: 2:24-cv-00063, E.D. Tex., 02/01/2024
• Venue Allegations: Plaintiff alleges venue is proper because Defendant has committed acts of infringement in the district and maintains a regular and established place of business in the district, including specific store locations.
• Core Dispute: Plaintiff alleges that various percussive massage guns sold by Defendant infringe a patent related to the mechanical design and functionality of such devices.
• Technical Context: The lawsuit concerns the market for personal, battery-powered percussive massage devices, which are used for deep muscle stimulation and pain relief.
• Key Procedural History: The asserted patent issued on January 2, 2024, less than one month before the complaint was filed. The patent claims priority to an application chain extending back to a provisional application filed in 2013, indicating a lengthy prosecution history.

Case Timeline

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

U.S. Patent No. 11,857,482 - "Massage Device Having Variable Stroke Length" (Issued Jan. 2, 2024)

The Invention Explained

• Problem Addressed: The patent’s background section states that prior art vibrating massage devices suffered from deficiencies such as being "bulky, get very hot, are noisy and/or are difficult to use for extended periods of time" (’482 Patent, col. 1:28-33).
• The Patented Solution: The invention describes a handheld percussive massager with a specific mechanical layout, including a motor and a drive mechanism that converts the motor's rotary motion into a reciprocating linear motion for a piston (’482 Patent, col. 1:40-45). A key feature is a "quick-connect system" that allows for the attachment of different massaging heads to the piston, with the specification noting that the system can be designed to allow for head attachment even while the device is in motion (’482 Patent, col. 7:7-13).
• Technical Importance: The design aims to create a more robust, user-friendly, and less noisy percussive massager by addressing common points of mechanical failure and inconvenience in prior devices.

Key Claims at a Glance

• The complaint asserts at least independent Claim 1 (Compl. ¶16).
• The essential elements of Claim 1 are:
  • a housing;
  • a piston having a proximal end and a distal end, the distal end of the piston having a substantially cylindrical bore;
  • a motor at least partially within the housing and operatively connected to the proximal end of the piston, wherein the motor is configured to cause the piston to reciprocate at a first speed;
  • a drive mechanism that controls a predetermined stroke length of the piston; and
  • a quick-connect system comprising the distal end of the piston and a first massaging head, wherein the quick-connect system is configured to secure the first massaging head to the percussive massager by a proximal end of the massaging head being slid into the bore while the piston reciprocates the predetermined stroke length at the first speed.
• The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

• The complaint identifies the following accused products: the "Massage Gun, LCD 99-levels 8 Heads Adjustable Deep Tissue Percussion Muscle Massager Gun," the "WBM Smart Massage Gun," the "WBM Himalayan Glow Massage Gun," the "Vybe Premium Deep Tissue Muscle Massage Gun," and the "Reathlete FOLD Interchangeable Folding Percussion Massage Therapy Gun" (Compl. ¶13, ¶16).

Functionality and Market Context

• The complaint describes the accused products generally as "battery-powered percussive massagers" (Compl. ¶16). It does not provide any specific technical details about the internal mechanisms, materials, or operational modes of these devices. No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint alleges that the accused products include the limitations of at least Claim 1, but it does not contain a detailed claim chart or map specific product features to claim elements beyond general assertions (Compl. ¶16).

’482 Patent Infringement Allegations

• Identified Points of Contention:
  • Technical Questions: The complaint provides no specific evidence demonstrating how the accused products meet the claim limitations. A central evidentiary question will be whether the accused products actually possess a "quick-connect system" that is "configured to secure" a massage head while the piston is reciprocating. This functional limitation requires a specific capability that goes beyond a standard quick-release mechanism.
  • Scope Questions: The interpretation of the phrase "configured to secure ... while the piston reciprocates" will be critical. Does this require that the device is designed and intended for head attachment during active operation, or merely that the physical geometry makes such an action theoretically possible?

V. Key Claim Terms for Construction

• The Term: "quick-connect system ... configured to secure the first massaging head ... while the piston reciprocates"
• Context and Importance: This limitation appears to be the most specific and potentially distinguishing feature of Claim 1. The infringement analysis will likely depend heavily on whether the accused products, as sold by Kroger, possess a system that meets this functional requirement. Practitioners may focus on this term because it moves beyond simple structural components to define a specific, dynamic capability of the device.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification describes an embodiment where the end of the massaging head shaft is "rounded, pointed or tapered...to allow it to easily slip into the opening 608 even while the piston 608 is moving" (’482 Patent, col. 7:9-13). A party could argue that "configured to" merely requires a physical design that enables this functionality, not that the manufacturer must explicitly instruct or intend for users to do so.
  • Evidence for a Narrower Interpretation: A party could argue that "configured to" implies an intended mode of operation, which may not be present if, for example, user manuals for the accused products warn against attaching heads while the device is powered on. The absence of explicit discussion of safety mechanisms for such an operation in the patent could also be used to argue against an overly broad construction that would cover devices not specifically designed for this purpose.

VI. Other Allegations

• Indirect Infringement: The complaint does not allege any facts to support claims of induced or contributory infringement.
• Willful Infringement: The complaint does not contain a specific count for willful infringement or allege pre-suit knowledge of the patent. The prayer for relief requests that the court declare the case "exceptional" under 35 U.S.C. §285, which relates to attorneys' fees, but does not explicitly request enhanced damages for willfulness under §284 (Compl. p. 5).

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

1. A core issue will be one of claim construction: How will the court define the functional limitation "configured to secure the ... head ... while the piston reciprocates"? Does this require a system specifically designed and intended for attachment during operation, or does it merely describe a potential physical capability?
2. The case will also present a key evidentiary challenge: What proof will Plaintiff offer to demonstrate that the internal mechanics of the accused products, which are not detailed in the complaint, actually perform the specific functions required by the patent claims, particularly the dynamic attachment capability of the quick-connect system?