DCT
3:23-cv-00844
Bellinger v. Curewave Lasers LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Gary John Bellinger (Individual)
- Defendant: Curewave Lasers LLC (Texas); Daniel Herbert (Individual); Laser Concepts LLC (Texas)
- Plaintiff’s Counsel: Riney Ronquillo Soule, PLLC
- Case Identification: 3:23-cv-00844, N.D. Tex., 12/19/2023
- Venue Allegations: Venue is alleged to be proper as Defendants are residents of Texas, are registered to do business in the state, and have systematic contacts within the judicial district.
- Core Dispute: Plaintiff alleges that Defendants’ CureWave laser therapy device, and the method of using it, infringes a patent related to a high-intensity laser therapy method for treating inflammation and pain.
- Technical Context: The technology involves the use of high-power, non-invasive lasers at specific wavelengths to achieve deep tissue penetration for therapeutic purposes, a segment of the medical device market.
- Key Procedural History: The complaint alleges that Defendant Daniel Herbert is a former employee of the Plaintiff's company who learned of the proprietary technology and patent pursuit before forming Defendant CureWave to compete. The complaint also references a prior state court case involving the Defendants, an FDA warning letter issued to CureWave, and a cease-and-desist letter sent by the Plaintiff to Defendants in January 2023, which may be relevant to allegations of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2012-12-31 | U.S. Patent No. 10,589,120 Priority Date |
| 2015-09-21 | Defendant CureWave Lasers, LLC Formed |
| 2019-12-12 | FDA Warning Letter Issued to Defendant CureWave |
| 2020-03-17 | U.S. Patent No. 10,589,120 Issued |
| 2023-01-06 | Plaintiff Sent Cease-and-Desist Letter to Defendants |
| 2023-12-19 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,589,120 - "High-Intensity Laser Therapy Method and Apparatus," Issued March 17, 2020
The Invention Explained
- Problem Addressed: The patent describes a need for a laser therapy that can treat deep tissue inflammation and wounds effectively. It notes that conventional low-power lasers lack the ability to penetrate tissue significantly, while higher-power lasers often cause damage due to absorption by melanin, hemoglobin, or water, preventing the energy from reaching the target tissue (’120 Patent, col. 1:29-44, col. 2:1-26).
- The Patented Solution: The invention proposes a method using a high-intensity laser operating at a specific wavelength (e.g., approximately 1275 nm) where absorption by skin and blood components is minimal. This allows high-power laser energy to penetrate deeply (up to 30 cm) into tissue to photo-activate intracellular photoreceptors, which initiates a cascade of metabolic effects that normalizes cellular activity and promotes healing without ablating tissue (’120 Patent, Abstract; col. 2:30-61).
- Technical Importance: This method purports to deliver significantly more therapeutic energy to deep, damaged tissues more efficiently than prior laser systems, enabling faster and more effective treatment of acute and chronic conditions (’120 Patent, col. 3:1-12).
Key Claims at a Glance
- The complaint asserts independent method claims 1, 12, and 15 (Compl. ¶24).
- Independent Claim 1:
- A method of laser irradiation comprising: directing a laser beam from a high intensity laser unit in a continuous wave operation having a wavelength of about 1275 nm and a power output level of about 42 Watts on an inflamed area that is to be treated,
- such that the laser beam penetrates the inflamed area in a range of 0.1 cm to 30 cm; and
- activating intracellular photoreceptors via the laser beam thereby initiating a cascade of secondary cellular metabolic effects and normalizing cellular activity towards homeostasis.
- Independent Claim 12:
- A method of laser irradiation comprised of: directing a laser beam from a laser unit in a continuous wave operation having a wavelength of about 1275 nm and a power output level of about 42 Watts on an in inflamed area that is to be treated.
- Independent Claim 15:
- A method of laser irradiation comprised of: directing a laser beam from a laser unit in a continuous wave operation having a wavelength of around 1275 nm and a power output level in a range of 37 Watts up to 75 Watts on an inflamed area that is to be treated.
III. The Accused Instrumentality
Product Identification
The "Infringing Product" is identified as the CureWave laser device, process, and system (Compl. ¶25).
Functionality and Market Context
The Accused Instrumentality is a therapeutic laser system for treating pain and inflammation (Compl. ¶25). The complaint provides an image of the device's operating manual specifications, which lists a "Center Wavelength" of "1280 +/- 20 nm" and a "CW Output Power" of "1-44 W" (Compl. ¶26, p. 7). A separate warning label for the product is also depicted, disclosing a wavelength of "1280nm (+/- 10nm)" and a maximum output of "1-44 Watts" in continuous wave (CW) mode (Compl. ¶27, p. 8). The complaint alleges the product was created by a former associate of the inventor to "directly compete" by "copying Plaintiff's Phoenix Thera-Lase system" (Compl. ¶22). A screenshot from a promotional video shows a CureWave distributor stating the device achieves "deep penetration into the soft tissue up to 15cm" (Compl. ¶43, p. 12). Another screenshot depicts the device being used to treat a patient at a customer clinic (Compl. ¶49, p. 14).
IV. Analysis of Infringement Allegations
’120 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| directing a laser beam from a high intensity laser unit in a continuous wave operation having a wavelength of about 1275 nm and a power output level of about 42 Watts on an inflamed area... | The Accused Instrumentality is a laser system that operates in a continuous wave (CW) mode with a specified wavelength of "1280nm +/- 20nm" (or "+/- 10nm") and a power output range of "1-44 W". | ¶25, ¶26, ¶27 | col. 24:10-17 |
| such that the laser beam penetrates the inflamed area in a range of 0.1 cm to 30 cm | A distributor for Defendant CureWave allegedly admitted in a public video that the Accused Instrumentality achieves "deep penetration into the soft tissue up to 15cm." | ¶43, ¶47 | col. 24:16-17 |
| and activating intracellular photoreceptors via the laser beam thereby initiating a cascade of secondary cellular metabolic effects and normalizing cellular activity towards homeostasis | The complaint alleges that use of the Accused Instrumentality for its intended therapeutic purpose of tissue regeneration and healing inherently performs this claimed biological function. This is supported by allegations that Defendants copied Plaintiff's entire system and methods. | ¶24, n.3 | col. 24:18-22 |
Identified Points of Contention
- Scope Questions: A central question for claim construction will be the scope of the term "about." The court will need to determine whether the accused product's specified operating ranges of "1280nm +/- 20nm" (1260-1300 nm) and "1-44 W" meet the claim limitations of "about 1275 nm" and "about 42 Watts." A similar question exists for Claim 15 regarding the term "around 1275 nm."
- Technical Questions: The infringement allegation for the final "activating intracellular photoreceptors" element appears to be based on inference rather than direct evidence presented in the complaint. A key evidentiary question will be what proof Plaintiff can offer to demonstrate that the accused device causes this specific biological cascade, as required by the claim, beyond simply having similar physical operating parameters. Further, the evidence for the penetration depth limitation rests on a distributor's statement of "up to 15cm," which may raise questions about whether that is sufficient to prove infringement of the full claimed range of "0.1 cm to 30 cm."
V. Key Claim Terms for Construction
The Term: "about" (as in "about 1275 nm" and "about 42 Watts")
- Context and Importance: This term is critical because the accused product's specifications are given as ranges ("1280nm +/- 20nm" and "1-44 W") that do not literally match the patent's specific numbers. The case for literal infringement of Claims 1 and 12 may depend entirely on whether these ranges are considered to be "about" the claimed values.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent frequently uses broadening language, such as "approximately" and "range," suggesting the patentee did not intend to be limited to the exact numerical values (e.g., ’120 Patent, col. 3:6-7, "operate with energy levels from approximately, 5 to 100 Watts").
- Evidence for a Narrower Interpretation: The patentee explicitly used a numerical range in Claim 15 ("in a range of 37 Watts up to 75 Watts"), which may suggest that the use of a single number ("about 42 Watts") in Claims 1 and 12 was a deliberate choice intended to be narrower. A party could argue that "about 42 Watts" does not encompass the entire "1-44 W" range of the accused device.
The Term: "activating intracellular photoreceptors...thereby initiating a cascade of secondary cellular metabolic effects"
- Context and Importance: This is a functional limitation describing the biological mechanism of action. Proving infringement requires showing that the use of the accused device causes this specific result. Practitioners may focus on this term because it shifts the dispute from purely machine specifications to biological outcomes, which can be more difficult to prove.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent abstract and summary describe the cascade in general terms as "normalizing cellular activity towards homeostasis," which could support a view that any such beneficial cascade suffices (’120 Patent, Abstract).
- Evidence for a Narrower Interpretation: The detailed description provides more specific examples of the "cascade," including "stimulating the production of intercellular messenger proteins and enzymes including superoxide dismutase and catalase enzymes" (’120 Patent, col. 4:29-31). An argument could be made that infringement requires proof of these more specific effects, not just a generalized healing response.
VI. Other Allegations
Indirect Infringement
The complaint alleges both induced and contributory infringement. The inducement allegations are based on Defendants allegedly providing customers with instructional materials, including operating manuals, video demonstrations, and in-person training that direct users to operate the device in an infringing manner (Compl. ¶¶ 40, 55, 56, 62). A treatment protocol diagram from the accused product's manual is presented as evidence of these instructions (Compl. ¶56, p. 18).
Willful Infringement
The complaint alleges willfulness based on both pre- and post-suit knowledge. Pre-suit knowledge is alleged based on Defendant Herbert’s prior employment at Plaintiff’s company, where he allegedly gained knowledge of the proprietary technology and pending patent protection (Compl. ¶¶ 19-21), and on a distributor’s public reference to a "patented process" (Compl. ¶43, ¶46). Post-suit knowledge is alleged based on a cease-and-desist letter Plaintiff sent on January 6, 2023, providing actual notice of the patent (Compl. ¶69).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: Can the term "about," as used in Claims 1 and 12, be construed broadly enough to encompass the accused device’s specified operating ranges for wavelength ("1280nm +/- 20nm") and power ("1-44 W")? The resolution of this claim construction dispute may be dispositive for literal infringement.
- A key evidentiary question will be one of functional proof: Beyond the physical parameters of the accused device, what evidence will be required to prove that its use performs the claimed biological function of "activating intracellular photoreceptors" and initiating the specific "cascade of secondary cellular metabolic effects" toward homeostasis, and can the Plaintiff meet that burden?
- A significant question for damages will be willfulness and intent: Given the detailed allegations concerning the co-defendant's prior professional relationship with the plaintiff and the alleged copying of technology and treatment protocols, the court will have to weigh the evidence to determine if any infringement was willful, which could lead to enhanced damages.