Hyper Ice Inc v. CVS Pharmacy Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Hyper Ice, Inc. (California) and Hyperice IP Subco, LLC (Delaware)
  • Defendant: CVS Pharmacy, Inc. (Delaware)
  • Plaintiff’s Counsel: Scheef & Stone, LLP
• Case Identification: 2:24-cv-00115, E.D. Tex., 02/20/2024
• Venue Allegations: Venue is alleged based on Defendant’s commission of infringing acts within the district and its operation of a regular and established place of business, including a specific CVS store located in Marshall, Texas.
• Core Dispute: Plaintiff alleges that Defendant’s sale of various third-party percussive massage devices infringes one utility patent and two design patents related to massage device construction and appearance.
• Technical Context: The technology resides in the consumer wellness market for handheld, battery-powered percussive massage guns used for muscle therapy and pain relief.
• Key Procedural History: The asserted utility patent, U.S. Patent No. 11,857,482, claims priority back to a 2013 provisional application. The asserted design patents also claim priority to earlier-filed applications. The complaint alleges willfulness based on knowledge of the patents as of the complaint's filing date.

Case Timeline

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

U.S. Patent No. 11,857,482

• Patent Identification: U.S. Patent No. 11,857,482, Massage Device Having Variable Stroke Length, issued January 2, 2024. (Compl. ¶9).
• The Invention Explained:
  • Problem Addressed: The patent’s background section states that prior art massaging devices suffer from deficiencies such as being bulky, generating excessive heat, being noisy, and being difficult to use for extended periods. (’482 Patent, col. 1:26-31).
  • The Patented Solution: The invention is a handheld percussive massager that uses a motor to drive a piston in a reciprocating motion. The specification describes a specific mechanical arrangement, including a "Scotch yoke" drive mechanism to convert the motor's rotary motion to the piston's linear motion, and a quick-connect system for attaching and detaching different massage heads. (’482 Patent, Abstract; col. 5:7-14). This configuration is intended to create a more robust and user-friendly device.
  • Technical Importance: The design aims to solve usability problems common in early percussive massagers, potentially improving performance and user comfort. (’482 Patent, col. 1:26-31).
• Key Claims at a Glance:
  • The complaint asserts infringement of at least independent Claim 1. (Compl. ¶27).
  • The essential elements of Claim 1 are:
    • a housing;
    • a piston with a proximal end and a distal end, where the distal end has a substantially cylindrical bore;
    • a motor at least partially inside the housing, connected to the piston to cause reciprocation at a first speed;
    • a drive mechanism controlling a predetermined stroke length of the piston; and
    • a quick-connect system at the piston's distal end, configured to secure a massage head when its proximal end is slid into the bore, even while the piston is reciprocating. (’482 Patent, col. 10:1-19).
  • The complaint's phrasing "at least Claim 1" suggests a reservation of the right to assert other claims. (Compl. ¶27).

U.S. Patent No. D956,253

• Patent Identification: U.S. Patent No. D956,253, Percussive Massage Device, issued June 28, 2022. (Compl. ¶14).
• The Invention Explained:
  • Problem Addressed: Not applicable for a design patent.
  • The Patented Solution: The patent protects the ornamental, non-functional design of a percussive massage device. The claimed design, illustrated in the patent's figures, shows a device with a "T-shaped" profile, comprising a main cylindrical body, a perpendicular cylindrical handle, and distinct proportions and surface contours, including a textured grip pattern on the handle. (D’253 Patent, Figs. 1-8).
  • Technical Importance: A product's ornamental design can serve as a key market differentiator and source identifier for consumers.
• Key Claims at a Glance:
  • Design patents contain a single claim. The asserted claim is for "The ornamental design for a 'percussive massage device,' as shown and described." (D'253 Patent, Claim). The complaint alleges infringement of the patent generally. (Compl. ¶¶31-32).

U.S. Patent No. D886,317

• Patent Identification: U.S. Patent No. D886,317, Percussive Massage Device, issued June 2, 2020. (Compl. ¶19).
• Technology Synopsis: The patent protects the ornamental design for a percussive massage device. The design features a T-shaped body with a generally cylindrical handle and a main housing. Distinguishing visual features include the perforated circular pattern on the rear of the main housing and the smooth surface of the handle. (D’317 Patent, Figs. 1-8).
• Asserted Claims: The single claim for the ornamental design as shown and described in the patent figures. (D’317 Patent, Claim).
• Accused Features: The complaint alleges that the overall ornamental appearance of the "Pursonic 6 -Speed Pro Massager Gun" and the "TRAKK Beast 6 Speed Percussion Massage Gun" infringes this design patent. (Compl. ¶23).

III. The Accused Instrumentality

• Product Identification: The complaint identifies a range of "battery-powered percussive massage devices" sold by Defendant. (Compl. ¶¶13, 27). These include products marketed under the brand names Sharper Image, Homedics, Evertone, TRAKK, AmaMedic, and Pursonic. (Compl. ¶¶13, 18, 23).
• Functionality and Market Context: The complaint describes the accused products generally as "battery-powered percussive massagers" but provides no specific technical details regarding their internal mechanisms, components, or principles of operation. (Compl. ¶27). It alleges that Defendant CVS, a national retailer, offers for sale and sells these products in its stores and online. (Compl. ¶¶4, 13). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

’482 Patent Infringement Allegations

The complaint alleges that the accused products infringe at least Claim 1 of the '482 patent. The allegations track the language of the claim without providing specific, corresponding details from the accused products. (Compl. ¶27).

Identified Points of Contention

• Scope Questions: A principal question for the '482 patent infringement analysis will be whether the attachment mechanisms on the various accused products meet the specific functional requirements of the claimed "quick-connect system." The claim requires the system to be configured to secure a massage head that is "slid into the bore while the piston reciprocates." (’482 Patent, col. 10:16-19). The viability of the infringement claim may depend on whether this functional capability is present in the accused products.
• Technical Questions: The complaint's infringement allegations are conclusory and lack technical evidence (e.g., product teardowns, schematics, or user manual excerpts) demonstrating how the accused products operate. A key evidentiary question will be what proof Plaintiff can offer to show that the internal drive mechanisms and attachment systems of the accused products, which originate from several different manufacturers, all map onto the limitations of Claim 1.
• Design Patent Questions: For the D’253 and D’317 patents, the infringement analysis will turn on the "ordinary observer" test. The central question is whether an ordinary observer, familiar with the prior art of percussive massagers, would be deceived into purchasing one of the accused products believing it to be the patented design. This analysis is highly visual and fact-dependent, and the complaint does not currently provide the visual evidence needed for such a comparison.

V. Key Claim Terms for Construction

For the '482 patent, the construction of the following term from Claim 1 may be critical.

• The Term: "quick-connect system ... configured to secure the first massaging head ... by a proximal end of the massaging head being slid into the bore while the piston reciprocates" (’482 Patent, col. 10:13-19).
• Context and Importance: This term recites a specific function and may be the narrowest limitation in the claim, making its interpretation central to the infringement dispute. Practitioners may focus on this term because the case could turn on whether the accused products are capable of attaching a massage head while the device is actively running, or if they merely feature a generic "quick-connect" mechanism that requires the device to be off.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: A party arguing for a broader scope might point to general language in the specification describing the benefit as allowing a user to "quickly switch massaging heads," which does not explicitly require the device to be in motion. (’482 Patent, col. 6:52-53).
  • Evidence for a Narrower Interpretation: A party arguing for a narrower scope will likely emphasize the explicit claim language "while the piston reciprocates." This is supported by specific language in the detailed description, which states that an embodiment of the massage head is shaped "to allow it to easily slip into the opening ... even while the piston ... is moving." (’482 Patent, col. 7:10-14). This suggests the capability is a specific, intended feature of the invention.

VI. Other Allegations

• Willful Infringement: The complaint alleges that Defendant had knowledge of the patents-in-suit no later than the filing date of the complaint. (Compl. ¶24). It further pleads that Defendant's alleged infringement constitutes "willful, intentional, and conscious disregard of the objectively high likelihood that its conduct constitutes infringement," forming the basis for a willfulness claim based on post-suit knowledge. (Compl. ¶24; Prayer ¶2).

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

• A key evidentiary question will be one of functional proof: Can the Plaintiff demonstrate through technical evidence that the diverse set of accused products, sourced from multiple third-party manufacturers, each contains an internal drive mechanism and, critically, a "quick-connect system" that allows for attachment of a massage head while the device is operating, as specifically required by Claim 1 of the '482 patent?
• A central issue for the design patent claims will be one of visual comparison: In a crowded consumer market for T-shaped massage guns, can Plaintiff show that the specific ornamental designs of the accused products are substantially the same as the claimed designs in the D'253 and D'317 patents from the perspective of an ordinary observer, a determination that will require detailed visual evidence not present in the initial complaint.
• The case raises a question of enforcement strategy: By targeting a retailer (CVS) rather than the individual manufacturers, the litigation must prove that each distinct product line independently infringes the asserted patents, which may present greater evidentiary challenges than a case focused on a single accused technology.