DCT
1:25-cv-00880
Virulite LLC v. Walgreen Co
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Virulite LLC (Nevada)
- Defendant: Walgreen Co. (Illinois)
- Plaintiff’s Counsel: The Mort Law Firm, PLLC; Daignault Iyer LLP
- Case Identification: 1:25-cv-00880, W.D. Tex., 06/06/2025
- 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.
- Core Dispute: Plaintiff alleges that Defendant’s "Cold Sore Treatment Device" infringes a patent related to the cosmetic use of specific wavelengths of electromagnetic radiation to treat skin.
- Technical Context: The technology concerns the use of low-level, non-thermal light therapy, specifically narrow-band infrared radiation, for skin rejuvenation and anti-aging purposes.
- Key Procedural History: The complaint alleges that Defendant and its parent company, Walgreens Boots Alliance, were aware of the technology since at least January 2015 due to negotiations with Plaintiff regarding a potential exclusive retail launch of Plaintiff's patented product, which continued through June 2016. This history is presented to support allegations of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2004-06-24 | '302 Patent Priority Date |
| 2015-01 | Alleged negotiations begin between Plaintiff and Defendant |
| 2016-04-19 | U.S. Patent No. 9,314,302 Issues |
| 2016-06 | Alleged negotiations between Plaintiff and Defendant conclude |
| 2025-06-06 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,314,302 - "Cosmetic uses of electromagnetic radiation", issued April 19, 2016
The Invention Explained
- Problem Addressed: The patent describes the problem of skin aging, such as wrinkles and decreased skin thickness, which results from changes to the skin's collagen structure (’302 Patent, col. 1:27-37). It notes that prior art treatments like cosmetic creams, chemical peels, and laser resurfacing are either of limited efficacy or are aggressive, expensive, and carry risks like burns and hyperpigmentation (Compl. ¶25; ’302 Patent, col. 1:38-46, col. 1:60-col. 2:8).
- The Patented Solution: The invention proposes a method for cosmetically treating skin by irradiating it with a source of divergent (i.e., non-laser) electromagnetic radiation centered at a specific wavelength (1072 nm) and within a particular bandwidth (’302 Patent, Abstract; col. 12:45-54). This approach is described as non-thermal and intended to avoid the damage associated with prior art laser treatments while providing cosmetic benefits like reducing wrinkles and improving skin elasticity (’302 Patent, col. 3:25-30; col. 12:45-54).
- Technical Importance: The technology claims to provide a safe, non-invasive, and effective alternative to existing cosmetic treatments by using a specific, narrow wavelength of non-thermal light to achieve desired skin improvements (Compl. ¶26; ’302 Patent, col. 2:9-15).
Key Claims at a Glance
- The complaint asserts independent claim 1 ('302 Patent, col. 12:45-54; Compl. ¶31).
- The essential elements of independent claim 1 are:
- A method of cosmetically treating a superficial area of mammalian skin
- comprising irradiating the skin with a source of divergent electromagnetic radiation centered around 1072 nm,
- wherein the cosmetic treatment provides at least one effect selected from a group including reducing wrinkles, rejuvenating skin, and improving skin elasticity,
- wherein the electromagnetic radiation has a bandwidth in a range of about 10 to 120 nm.
- The complaint’s prayer for relief seeks a finding of infringement of "one or more claims" of the '302 patent, suggesting the right to assert additional claims may be reserved (Compl. ¶¶ 39.a-b).
III. The Accused Instrumentality
Product Identification
- The "Walgreens Cold Sore Treatment Device," also referred to as the "Walgreen System" (Compl. ¶12). A product manual excerpt identifies the model as QPZ-01 (Compl., p. 15).
Functionality and Market Context
- The complaint alleges the accused product is a handheld device designed for "low-level light therapy (LLLT) using 1072nm infrared light" to treat cold sores (herpes simplex labialis) (Compl., p. 8). An FDA Global Unique Device Identification Database (GUDID) entry for the device describes it as emitting "infrared light (wavelengths around 1072 nm)" (Compl., p. 15).
- Product instructions direct the user to power on the device, which starts a default 3-minute treatment, and place the treatment window near the treatment area (Compl., p. 8). An image in the complaint shows a user applying the device to the skin on her face (Compl., p. 10).
- While the product is marketed for "cold sore" treatment, the complaint alleges it provides the cosmetic benefits claimed in the patent, such as reducing wrinkles and improving skin appearance (Compl. ¶34). The packaging on page 8 of the complaint shows the "Walgreens Cold Sore Treatment Device" and its intended application near the lips.
IV. Analysis of Infringement Allegations
'302 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A method of cosmetically treating a superficial area of mammalian skin | The Walgreen System is used to treat a superficial area of mammalian skin. One instruction image depicts cleaning the area of skin that will undergo treatment (Compl., p. 11). | ¶32, ¶34 | col. 12:45-46 |
| comprising irradiating the skin with a source of divergent electromagnetic radiation centered around 1072 nm, | The Walgreen System employs a method of irradiating skin with a source of divergent electromagnetic radiation centered around 1072 nm. Product packaging and an FDA database entry state it uses "1072nm infrared light" (Compl., p. 8, 15). | ¶33 | col. 12:47-49 |
| wherein the cosmetic treatment provides at least one effect selected from the group consisting of: (i) reducing, alleviating, removing or diminishing wrinkles or fine lines... (v) improving skin elasticity or elastic characteristics of skin, tone, texture and appearance, | The complaint alleges that the Walgreen System provides these exact cosmetic effects. | ¶34 | col. 12:50-54 |
| wherein the electromagnetic radiation has a bandwidth in a range of about 10 to 120 nm. | The complaint alleges the electromagnetic radiation from the Walgreen System has a bandwidth within this range. | ¶35 | col. 12:55-57 |
Identified Points of Contention
- Scope Questions: A primary question is whether the accused product's intended use for treating "cold sores" falls within the patent's claim of "cosmetically treating" a superficial area of skin. The patent defines "cosmetically treating" to include effects like wrinkle reduction and improving skin tone and appearance (’302 Patent, col. 2:24-27), and the complaint will need to establish that the accused device performs one of these functions, regardless of its marketing for cold sores.
- Technical Questions: The complaint alleges the accused device's radiation has a "bandwidth in a range of about 10 to 120 nm" (Compl. ¶35), a specific limitation of claim 1. While the complaint provides evidence for the "1072 nm" wavelength, it does not provide specific evidentiary support for this bandwidth range. The case may require technical testing or discovery to determine if the accused product meets this limitation.
V. Key Claim Terms for Construction
The Term: "cosmetically treating"
- Context and Importance: This term is central to the dispute. Defendant will likely argue its product is a medical device for treating cold sores (a viral infection), not a cosmetic device. Plaintiff will argue that the effects of the treatment, such as improved appearance of the affected skin, fall under the patent's broad definition of "cosmetically treating." Practitioners may focus on this term because its construction could determine whether the accused product's function is covered by the claim scope at all.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent specification provides a broad, non-limiting definition: "Reference herein to 'cosmetically treating' includes reducing or alleviating or removing or diminishing wrinkles or fine lines, rejuvenating skin, retarding or reversing the visible signs of aging, improving skin elasticity, tone, texture and appearance and generally beautifying" (’302 Patent, col. 2:24-27).
- Evidence for a Narrower Interpretation: The patent’s background focuses entirely on anti-aging concerns like wrinkles and collagen degradation, not on treating lesions or sores (’302 Patent, col. 1:27-37). A party could argue the context of the invention limits the term to these age-related cosmetic issues.
The Term: "centered around 1072 nm"
- Context and Importance: While the accused product is advertised as using "1072nm" light, the term "centered around" provides some flexibility. The construction of this term will define the acceptable range of wavelengths. Practitioners may focus on this term to determine if minor deviations in the measured peak wavelength of the accused device would allow it to escape infringement.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent lists "1072 nm" as one of several preferred wavelengths and claims a method "centered around" it, suggesting the invention is not strictly limited to that precise number (’302 Patent, col. 3:5-7; col. 12:48-49).
- Evidence for a Narrower Interpretation: The patent repeatedly emphasizes the specific properties and benefits of the 1072 nm wavelength, including its interaction with water molecules and its protective effects on cells, potentially suggesting that "centered around" implies a very narrow deviation from 1072 nm to achieve the claimed effects (’302 Patent, col. 3:10-15; col. 5:10-18).
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement of infringement, stating that Walgreen encourages purchasers to use the product in an infringing manner (Compl. ¶36). This is supported by references to the product's "How to Use" instructions, which direct users to apply the device to their skin (Compl., p. 13, 17).
- Willful Infringement: Willfulness is alleged based on pre-suit knowledge of the '302 patent. The complaint claims that Walgreen and its parent company engaged in negotiations with Plaintiff from January 2015 to June 2016 concerning an "exclusive retail launch for Virulite's patented product," establishing knowledge of the technology and its patent protection (Compl. ¶¶27-29).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of definitional scope: can the term "cosmetically treating," which the patent frames in the context of anti-aging and skin rejuvenation, be construed to cover the accused product's marketed use for treating cold sores? The outcome will depend on whether the effect of the treatment, regardless of its marketed purpose, meets the claimed cosmetic benefits.
- A key evidentiary question will be one of technical proof: what evidence will Plaintiff provide to demonstrate that the accused device's radiation possesses a "bandwidth in a range of about 10 to 120 nm," a specific limitation of the asserted claim? While the complaint alleges this, it does not offer the same level of documentary support as it does for the 1072 nm wavelength.
- A third central question will concern willfulness: do the alleged pre-suit business negotiations between the parties from 2015-2016 constitute the kind of "knowledge of the patent and of [the] infringement" required to support a finding of willful infringement, particularly given the potential dispute over the scope of "cosmetically treating"?