Kona Ice Inc v. Detavernier

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Kona Ice, Inc. (Kentucky)
  • Defendant: Oline Detavernier, Jo Detavernier, and JOT Enterprises, LLC (Texas)
  • Plaintiff’s Counsel: Langley & Banack, Inc.; Wood, Herron & Evans, L.L.P.
• Case Identification: 5:17-cv-00931, W.D. Tex., 09/21/2017
• Venue Allegations: Venue is based on the allegation that Defendants reside and have their principal place of business in New Braunfels, Texas, which is within the Western District of Texas.
• Core Dispute: Plaintiff alleges that Defendants’ mobile shaved ice vehicle infringes a patent related to an externally mounted, self-serve liquid toppings dispensing system for mobile confectionary vehicles.
• Technical Context: The technology operates in the mobile food service industry, where customer throughput and speed of service are critical drivers of profitability for vendors of products like shaved ice and snow cones.

Case Timeline

Date	Event
2013-02-27	’447 Patent Priority Date
2017-09-05	’447 Patent Issue Date
2017-09-21	Complaint Filing Date

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

U.S. Patent No. 9,751,447 - "Liquid Toppings Dispensing System"

The Invention Explained

• Problem Addressed: The patent’s background section identifies a key business challenge for mobile confectionaries: service bottlenecks that create long lines and drive away potential customers. A specific cause of delay is the time required for an operator inside the vehicle to apply various liquid toppings or flavorings to products like shaved ice, a process often slowed by customer indecision. (’447 Patent, col. 1:41-61).
• The Patented Solution: The invention proposes moving the topping-application step outside the vehicle and making it a self-service activity for the customer. It describes a mobile vehicle equipped with an external liquid toppings dispensing system, allowing customers to receive a plain frozen confection from an operator at a service window and then move to the external station to apply their own desired flavorings. (’447 Patent, Abstract; col. 4:51-64). This division of labor is intended to free up the operator to serve the next customer, thereby increasing the vehicle’s overall service speed.
• Technical Importance: This approach aims to increase customer throughput and satisfaction by reducing wait times, a critical factor for profitability in high-volume, time-sensitive environments like festivals or events. (’447 Patent, col. 1:62-65).

Key Claims at a Glance

• The complaint asserts infringement of independent Claim 1.
• Claim 1 of the ’447 Patent requires:
  • A mobile confectionary apparatus comprising a vehicle with at least one upstanding side wall.
  • An interior space within the side wall for at least one person.
  • An opening (e.g., a service window) through the side wall for passing items.
  • A liquid toppings dispensing system with a housing and multiple liquid dispensers.
  • The dispensing system is positioned adjacent to and opposing the side wall.
  • The dispensers are in fluid communication with at least one reservoir holding the liquid topping.
  • The dispensing system is located externally of the side wall and "spaced entirely laterally therefrom by a gap."
• The complaint reserves the right to assert dependent Claims 2, 3, 4, 6, 7, and 10. (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

The accused instrumentality is identified as "Defendants' Service Vehicle," a truck used to offer frozen treats, including flavored shaved ice. (Compl. ¶9, ¶14).

Functionality and Market Context

The complaint alleges the accused vehicle is a mobile truck that serves confections to customers. (Compl. ¶14). Its relevant functionality includes a service window for passing items from an operator inside the vehicle to customers outside. (Compl. ¶17). Crucially, it is alleged to incorporate an external "liquid toppings dispensing system" consisting of "multiple spigots, enclosed by and supported by a frame," which are used to dispense flavorings. (Compl. ¶18). The complaint states that images of the accused vehicle are provided in its Exhibit 2, depicting a service truck with these features. (Compl. ¶9).

IV. Analysis of Infringement Allegations

U.S. Patent No. 9,751,447 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A mobile confectionary apparatus, comprising: a vehicle including at least one upstanding side wall;	The accused instrumentality is a mobile service truck that can be moved and has at least one wall enclosing a rear portion.	¶14, ¶15	col. 4:1-8
an interior space surrounded by the at least one upstanding side wall and configured to receive at least one person;	The rear portion of the truck is designed to allow at least one person to be present therein.	¶16	col. 4:48-56
an opening extending through the at least one upstanding side wall and through which an item may be passed from the interior space to outside of the vehicle;	The truck has a window in its side wall used to pass items to customers from the inside.	¶17	col. 5:7-14
and a liquid toppings dispensing system including a housing being positioned adjacent to, and opposing, the at least one upstanding side wall and including a plurality of liquid dispensers...	The vehicle includes multiple spigots, enclosed by and supported by a frame, positioned in close proximity to and opposing the side wall of the truck, to dispense liquid flavorings.	¶18	col. 4:51-54
...each of the plurality of liquid dispensers being in fluid communication with at least one reservoir holding the at least one liquid topping...	Each spigot is attached through a hose to a container that houses liquid toppings.	¶18	col. 7:26-34
...with the liquid toppings dispensing system being located externally of the at least one upstanding side wall and spaced entirely laterally therefrom by a gap.	The dispensing system is mounted on the outside of the truck, with a space between it and the side wall.	¶18	col. 5:35-39

Identified Points of Contention

• Scope Questions: The infringement analysis may focus on whether the accused vehicle's "frame" supporting its spigots constitutes a "housing" as contemplated by the patent. (Compl. ¶18). Further, the case could raise the question of whether the simple act of mounting a dispenser on a vehicle's exterior necessarily creates a structure that is "spaced entirely laterally therefrom by a gap," or if the claim requires a more specific structural separation.
• Technical Questions: A central evidentiary question may be how the accused vehicle's components function as a "system." While the complaint alleges the presence of spigots, containers, and hoses, the defense may argue these components do not form the integrated "liquid toppings dispensing system" described and claimed in the ’447 Patent.

V. Key Claim Terms for Construction

• The Term: "housing"

• Context and Importance: This term is critical because the claim requires the "liquid toppings dispensing system" to include a "housing." The infringement allegation rests on the assertion that the "frame" supporting the accused spigots meets this limitation. (Compl. ¶18). Practitioners may focus on this term because its construction will determine whether a simple rack or frame is sufficient to infringe, or if a more enclosed structure is required.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification does not provide an explicit definition of "housing," which could support giving the term its plain and ordinary meaning, potentially encompassing a frame that holds or contains the dispensers.
  • Evidence for a Narrower Interpretation: The patent figures consistently depict the housing (44) as a box-like enclosure with side, top, and bottom panels that contains the support panel (42), backsplash (43), and catch basin (45). (’447 Patent, Figs. 3A, 4A, 5A-C; col. 7:4-7). A defendant could argue these embodiments limit the term "housing" to a substantially enclosed cabinet-like structure.

• The Term: "spaced entirely laterally therefrom by a gap"

• Context and Importance: This phrase defines the specific spatial relationship between the dispensing system and the vehicle's side wall. The complaint's allegation that the system is "mounted on the outside of the truck, and there is a space between it and the side wall" directly maps to this language. (Compl. ¶18). The dispute will likely turn on the required nature and extent of this "gap."

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The language could be interpreted to mean that any physical separation, however small, between the housing and the vehicle wall satisfies the limitation. The purpose of external mounting is to provide customer access, a goal achieved by any external placement.
  • Evidence for a Narrower Interpretation: The patent explicitly illustrates this "gap" (39) in Figure 4B and discusses the system being "spaced laterally from the upstanding side wall 20 by a gap 39." (’447 Patent, col. 5:37-39). This specific identification may suggest the claim requires a distinct, measurable clearance, rather than just the incidental space created by mounting brackets.

VI. Other Allegations

• Indirect Infringement: The complaint does not provide sufficient detail for analysis of indirect infringement. While the prayer for relief requests judgment for induced and contributory infringement, the factual allegations in Count I focus exclusively on direct infringement through Defendants' "operation and use" of the accused vehicle. (Compl. ¶11, Prayer for Relief ¶A).
• Willful Infringement: The complaint alleges willfulness based on "information and belief." (Compl. ¶20). The basis asserted for Defendants' knowledge is their status as a franchisee of "Tikiz," a company Plaintiff alleges is aware of Kona Ice's patents. The complaint alleges that through this franchise relationship, Defendants were or should have been aware of the ’447 Patent. (Compl. ¶20).

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

• A core issue will be one of definitional scope: How will the court construe the terms "housing" and "spaced entirely laterally therefrom by a gap"? The viability of the infringement claim will depend on whether the accused vehicle's external spigot rack is found to be a "housing" and whether its mounting configuration creates the specific "gap" required by Claim 1.
• A key evidentiary question will be one of structural correspondence: Does the physical construction of the Defendants' service vehicle, as shown in the images from Exhibit 2, actually possess the structural elements recited in the claim? The case will likely require a factual comparison between the specific components of the accused truck and the limitations of the asserted patent claim.