Barrier Guard Tech LLC v. El Go Team

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Barrier Guard Technologies, LLC (Wyoming)
  • Defendant: El-Go Team (Israel)
  • Plaintiff’s Counsel: Garteiser Honea, PLLC; Sinergia Technology Law Group, PLLC
• Case Identification: 2:24-cv-00383, E.D. Tex., 05/23/2024
• Venue Allegations: Venue is alleged to be proper because the Defendant is not a resident of the United States and therefore may be sued in any judicial district.
• Core Dispute: Plaintiff alleges that Defendant’s anti-ram bollard systems infringe a patent related to shallow-foundation vehicle barrier systems.
• Technical Context: The technology concerns anti-ram security bollards, which are critical for protecting buildings and infrastructure from vehicle-based attacks, with a focus on installation methods that minimize ground excavation.
• Key Procedural History: The asserted patent, U.S. 8,215,865, has undergone two ex parte reexaminations. A first reexamination certificate (C1) issued in July 2020 confirmed the patentability of all claims. However, a second reexamination certificate (C2) issued in November 2022 cancelled independent Claim 1, the primary claim asserted in the current complaint. The complaint's assertion of a cancelled claim raises a threshold question about the viability of the pleading.

Case Timeline

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

U.S. Patent No. 8,215,865 - "Anti-Ram System and Method of Installation" (Issued Jul. 10, 2012)

The Invention Explained

• Problem Addressed: The patent describes the difficulty and expense of installing conventional anti-ram bollards, which typically require deep excavations (e.g., four to six feet). Such deep foundations are often impossible in developed urban areas due to the presence of underground utilities, vaults, and basements (’865 Patent, col. 1:53-65, col. 2:1-10).
• The Patented Solution: The invention proposes an anti-ram system with a shallow mounting base or pad that requires "very little or no excavation" (’865 Patent, col. 2:11-13). This base is formed from a "grillage"—a framework of intersecting and interconnected structural members—that is placed in a shallow trench (e.g., 5 to 14 inches deep) and then typically filled with concrete (’865 Patent, col. 2:42-43, col. 3:40-42). Upon impact, forces are transmitted from the bollard to this large, shallow base, which distributes the load over a wide area of the supporting soil, resisting rotation more effectively than deep, narrow foundations (’865 Patent, col. 2:41-49).
• Technical Importance: The shallow-mount design was intended to enable the rapid and cost-effective deployment of high-security vehicle barriers in complex environments where traditional deep-foundation systems were impractical (’865 Patent, col. 2:11-16).

Key Claims at a Glance

• The complaint identifies independent Claim 1 as being infringed (Compl. ¶25). As noted, this claim was cancelled during reexamination.
• The essential elements of the asserted (but cancelled) Claim 1 include:
  • At least one bollard.
  • A base composed of a plurality of "structural members which intersect and are tied together," including at least one structural member extending between opposed ends of the base and another member intersecting it.
  • The bollard is secured to the base members and extends upward to transmit impact forces to the base.
  • The base is configured for mounting in a "shallow excavation."
  • The base members are configured to "retain" supporting media (like concrete) to resist rotation of the bollard upon impact.
    (’865 Patent, col. 9:16-41).
• The complaint also alleges infringement of "one or more claims," preserving the right to assert other claims, including independent claims 16 and 33, which were not cancelled (Compl. ¶25).

III. The Accused Instrumentality

Product Identification

The complaint identifies the accused products as, but not limited to, the "BLG-02-SM-350MM (IWA-14)" (Compl. ¶25).

Functionality and Market Context

The complaint alleges these are anti-ram bollard systems that Defendant manufactures, uses, sells, and imports into the United States (Compl. ¶25). The complaint does not provide specific details on the structure or operation of the accused products. Instead, it alleges that an attached "Exhibit B" claim chart contains this information; however, Exhibit B was not filed with the complaint (Compl. ¶¶25, 30). The complaint further alleges that Defendant distributes "product literature and website materials" that direct end users to use the products in an infringing manner (Compl. ¶28). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references a claim-chart exhibit (Exhibit B) that was not provided with the filing. The following is a narrative summary of the infringement theory based on the text of the complaint.

The complaint alleges that the Defendant's "BLG-02-SM-350MM (IWA-14)" products infringe at least Claim 1 of the ’865 Patent (Compl. ¶25). The pleading asserts that a comparison chart, designated as Exhibit B, demonstrates that the accused products "practice the technology claimed" and "satisfy all elements of exemplary Claim 1" (Compl. ¶30). The complaint further alleges that Defendant’s own product literature and website materials provide evidence of how the products are used in an infringing manner (Compl. ¶28). The complaint does not, however, contain any specific factual allegations mapping discrete features of the accused products to the limitations of any asserted claim.

• Identified Points of Contention:
  • Legal Question: The complaint's explicit assertion of the cancelled Claim 1 presents a significant legal question. A court will have to determine whether a complaint that bases its infringement count on a legally non-existent claim can proceed, or if it is subject to dismissal for failure to state a claim upon which relief can be granted.
  • Evidentiary Question: The infringement allegations are conclusory and rely entirely on an unattached exhibit. This raises the question of whether the pleading provides sufficient factual matter to state a plausible claim for relief under the Twombly/Iqbal standard, or if it will be found deficient for lacking specific factual support.
  • Technical Question: Should the case proceed (e.g., via an amended complaint asserting a valid claim like Claim 16), a central technical question will be whether the accused product's foundation is structurally equivalent to the claimed base of "intersect[ing] and...tied together" structural members, or if it utilizes a fundamentally different design.

V. Key Claim Terms for Construction

Based on the technology and the single claim specifically identified in the complaint, the following terms may be central to the dispute.

"shallow excavation"

• Context and Importance: This term is fundamental to the patent's asserted point of novelty over prior art deep-trench systems. The definition of "shallow" will be critical in distinguishing the claimed invention from conventional technology. Practitioners may focus on this term because its construction could determine the entire scope of infringement.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification uses qualitative descriptions such as "very little or no excavation" and a "simple replacement of area near the surface," which may support a functional definition not tied to a specific depth (’865 Patent, col. 2:12, col. 3:55-57).
  • Evidence for a Narrower Interpretation: The specification also provides specific exemplary dimensions, including a depth of "5" to 14"" and other embodiments with heights down to 3 inches, which could be used to argue for a more restrictive, numerical limit on the term's meaning (’865 Patent, col. 2:42-43, col. 3:5-6, col. 9:48-49).

"a plurality of structural members which intersect and are tied together"

• Context and Importance: This phrase defines the core structure of the patented base. Its interpretation will determine whether the claims read on monolithic or solid base designs, or if they are limited to frame-like or lattice-like structures.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent describes the members as a "framework" and a "grillage," and discloses embodiments using various components like tubes, pipes, and channels, suggesting the term could cover any base built from discrete, connected elements designed to provide rigidity (’865 Patent, col. 3:40-46).
  • Evidence for a Narrower Interpretation: The figures consistently depict a grid-like arrangement of intersecting linear members (e.g., ’865 Patent, Figs. 3, 4, 7). This visual evidence could support an argument that the term requires a true "grillage" structure and does not cover, for example, a solid foundation plate with holes for bollards.

VI. Other Allegations

Indirect Infringement

The complaint alleges induced infringement, stating that Defendant distributes "product literature and website materials" that instruct and encourage end users to install and use the accused products in a manner that infringes the ’865 Patent (Compl. ¶28).

Willful Infringement

The complaint alleges that service of the complaint and its (unattached) claim chart provides Defendant with "actual knowledge" of infringement (Compl. ¶¶27, 29). It further alleges that Defendant's continued infringing activities despite this knowledge are willful, forming a basis for enhanced damages (Compl. ¶28). The pleading does not allege any pre-suit knowledge.

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

This case presents several threshold issues that will likely need to be resolved before any substantive technical dispute is addressed. The key questions for the court appear to be:

1. A question of procedural viability: Can this lawsuit proceed given that its sole specifically identified basis for infringement, Claim 1 of the ’865 Patent, was cancelled by the U.S. Patent and Trademark Office through reexamination proceedings 18 months before the complaint was filed?
2. A question of pleading sufficiency: In the absence of the referenced Exhibit B, do the complaint's narrative allegations provide sufficient factual detail to state a plausible claim for relief, or do they represent the type of conclusory pleading that fails to meet federal standards?
3. A question of claim scope: If the plaintiff is permitted to amend its complaint to assert a valid, un-cancelled claim (such as Claim 16 or 33), a core issue will be whether the definition of a base made of "intersect[ing] and...tied together" structural members can be construed to cover the specific design of the Defendant's accused product foundation.