DCT
4:24-cv-00595
Denneroll Holdings Pty Ltd v. Chirolux LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Denneroll Holdings Pty Limited and Denneroll Industries International Pty Limited (Australia)
- Defendant: ChiroLux LLC (Washington)
- Plaintiff’s Counsel: Mackey Law Firm PLLC
- Case Identification: 4:24-cv-00595, S.D. Tex., 02/21/2024
- Venue Allegations: Plaintiff alleges venue is proper in the Southern District of Texas based on Defendant’s sales and shipments of the accused product into the district, both directly through its website and through a Texas-based distributor, Parker University.
- Core Dispute: Plaintiff alleges that Defendant’s "ChiroLux Curv" spinal orthotic device infringes a patent related to a therapeutic neck support device.
- Technical Context: The technology concerns orthotic devices used in chiropractic care and physical therapy to correct abnormal curvature of the cervical spine (lordosis) by stretching neck tissue.
- Key Procedural History: The complaint alleges Defendant received actual notice of the asserted patent and its infringement on two separate occasions in 2023 through communications forwarded by Amazon.com. Plaintiff also alleges its own products are marked with the patent number, providing constructive notice.
Case Timeline
| Date | Event |
|---|---|
| 2006-09-21 | ’440 Patent Priority Date |
| 2022-08-23 | ’440 Patent Issue Date |
| 2023-05-31 | Defendant allegedly received first notice of infringement |
| 2023-09-14 | Defendant allegedly received second notice of infringement |
| 2024-02-21 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 11,419,440, “Orthotic Device,” issued August 23, 2022 (the “’440 Patent”).
The Invention Explained
- Problem Addressed: The patent’s background describes prior art neck supports as often being made of rigid plastic with a sharp, triangular apex. This design could apply excessive force, cause significant discomfort, and was limited to treating only the upper portions of the neck due to its shape (’440 Patent, col. 1:37-54).
- The Patented Solution: The invention is an orthotic device made from a cushioning material with a specific geometry of convex and concave surfaces. It is designed to support a selected region of a patient's neck while suspending the patient's head above the underlying surface, creating a gentle stretch (’440 Patent, col. 2:7-13). The smooth, tangential transition between its curves allows the device to be placed at different points along the neck, offering more versatile treatment options than prior devices (’440 Patent, col. 4:21-25; Fig. 2).
- Technical Importance: The device aims to provide a more comfortable and functionally versatile method for encouraging structural changes in the cervical spine compared to rigid, single-point-of-contact alternatives (’440 Patent, col. 2:56-62).
Key Claims at a Glance
- The complaint asserts independent claim 15 of the ’440 Patent (Compl. ¶26).
- Essential elements of claim 15 include:
- A body with a base, front and rear terminal ends, and a support surface.
- The support surface comprises a first convex surface and a concave surface, each with an apex.
- The first convex surface is located between the concave surface and the rear terminal end.
- The apex of the first convex surface is vertically farther from the base than the apex of the concave surface.
- The device is configured to suspend a portion of a patient’s head rearwardly while the first convex surface supports and stretches the patient’s neck.
- A geometric limitation where the device's depth is less than the sum of the "first and second diameters" of the convex and concave surfaces, respectively.
- The complaint reserves the right to assert other claims (Compl. ¶29).
III. The Accused Instrumentality
Product Identification
- The "ChiroLux Curv" device (Compl. ¶5).
Functionality and Market Context
- The ChiroLux Curv is marketed as a "cervical denneroll style neck alignment device" and a "chiropractic tool" for neck pain relief, posture correction, and providing "cervical traction" (Compl. ¶5; ¶27). The complaint includes a screenshot from Defendant's Amazon product page that describes the product as a "fully adjustable 3 tier Interlocking apex cervical wedge" designed by chiropractors (Compl. p. 7). The complaint also includes a visual from Defendant's website demonstrating the device in use, placed under a person's neck in a manner that appears to elevate the neck and allow the head to hang back (Compl. p. 6). The product is sold directly to consumers and professionals through Defendant’s website and an Amazon.com storefront (Compl. ¶¶5-6).
IV. Analysis of Infringement Allegations
Although the complaint references a claim chart in an exhibit that was not provided, the infringement theory can be constructed from the complaint's narrative and visual evidence.
’440 Patent Infringement Allegations
| Claim Element (from Independent Claim 15) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a body having a base, front and rear terminal ends, and at least one support surface disposed above the base; wherein the at least one support surface comprises a first convex surface having a first diameter and an apex and a concave surface having a second diameter and an apex | The ChiroLux Curv consists of a physical body with a base and distinct curved surfaces for neck support. Visuals show a primary higher peak (first convex surface) and an adjacent lower trough (concave surface). The product is described as a "cervical neck wedge" (Compl. p. 7), which implies this geometry. | ¶25, ¶27 | col. 7:15-20 |
| wherein the first convex surface is disposed between the concave surface and the rear terminal end; wherein at least a portion of the concave surface is disposed between the first convex surface and the front terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the concave surface | The product photograph on Defendant's website shows the device having a profile with a higher peak and a lower trough, consistent with the claimed spatial arrangement (Compl. p. 6). The higher peak (first convex apex) would be positioned closer to the user's head (rear), while the trough (concave surface) would be positioned closer to the shoulders (front). | ¶25, ¶27 | col. 7:21-28 |
| wherein the device is configured to suspend at least a portion of a supine patient's head rearwardly of the device, and the first convex surface is configured to support and stretch the patient's neck, when the device is disposed between the patient's neck and a substrate surface...at least a portion of the front terminal end in contact with the patient's shoulders | Defendant's marketing materials state the product provides "cervical traction which results in spine alignment, spinal decompression & neck tension relief" (Compl. p. 7). The image of the Plaintiff's own device in use, which the Defendant's product is alleged to copy, explicitly demonstrates this function (Compl. p. 5). The image of the accused product on Defendant's website similarly shows a user in a supine position with their head suspended by the device (Compl. p. 6). | ¶27 | col. 7:29-39 |
| wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than the sum of the first and second diameters. | The complaint does not provide sufficient detail for analysis of this specific geometric limitation. | N/A | col. 7:40-43 |
- Identified Points of Contention:
- Technical Question: A central factual dispute will likely concern the specific geometric limitation requiring the device's "depth" to be "less than the sum of the first and second diameters." The complaint provides no data or analysis on this point, which will likely require expert measurement and testimony.
- Scope Question: Does the Defendant's marketing of its product as a "cervical denneroll style" device constitute an admission of copying or is it merely a descriptive term for a category of product? This may be relevant to both infringement and willfulness.
V. Key Claim Terms for Construction
- The Term: "depth is less than the sum of the first and second diameters"
- Context and Importance: This quantitative limitation in claim 15 is a potential point of non-infringement. Its construction is critical because infringement will depend on how "depth" and "diameter" are defined and measured on the accused product's curved surfaces. Practitioners may focus on this term because it appears to be a precise, distinguishing feature of the claimed invention.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The parties may argue for a plain and ordinary meaning, but the term is highly technical and not explicitly defined in the claims. A broader view might allow for more flexibility in how the "diameters" of non-uniform curves are determined.
- Evidence for a Narrower Interpretation: The specification provides Figure 2, which illustrates the "half cylindrical protrusion" with a "radius 123" and the "quarter cylindrical recess" with a "radius 126" (’440 Patent, col. 4:32-37). A party could argue that "diameter" should be construed consistent with these illustrated radii (i.e., diameter = 2 * radius), tying the claim scope tightly to the specific embodiments shown.
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement of infringement by Defendant’s customers and distributors (including Parker University in Texas) (Compl. ¶43). This allegation is supported by claims that Defendant’s product marketing and instructions on its website and Amazon store page actively encourage infringing use (Compl. ¶27, p. 7).
- Willful Infringement: Willfulness is alleged based on both pre-suit knowledge and continued infringement after notice. The complaint alleges Defendant had constructive notice via Plaintiff’s patent marking (Compl. ¶32) and actual notice from two separate communications from Plaintiff’s counsel forwarded by Amazon on or about May 31, 2023, and September 14, 2023 (Compl. ¶¶30-31). The complaint further alleges that Defendant’s use of the phrase "cervical denneroll style" demonstrates knowledge of and intent to trade on Plaintiff’s patented technology (Compl. ¶39).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of geometric compliance: Can Plaintiff prove that the ChiroLux Curv meets every specific dimensional limitation of claim 15, particularly the requirement that the device's "depth is less than the sum of the first and second diameters"? The case may turn on the construction of these terms and the results of expert measurement.
- A key question for damages and willfulness will be one of intent: What evidence will emerge regarding the content of the pre-suit notice letters sent via Amazon, and can Plaintiff establish that Defendant's use of the "denneroll style" branding was an intentional act of copying rather than a generic description of a product class?