Hyper Ice Inc v. Walgreen Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Hyper Ice, Inc. (California) and Hyperice IP Subco, LLC (Delaware)
  • Defendant: Walgreen Co. (Illinois)
  • Plaintiff’s Counsel: Scott Douglass & McConnico LLP; Lewis Brisbois Bisgaard Smith LLP; Miller Barondess LLP
• Case Identification: 6:24-cv-00031, W.D. Tex., 01/16/2024
• Venue Allegations: Venue is alleged to be proper because Defendant Walgreen Co. operates physical stores in the district, constituting a regular and established place of business, and has allegedly committed acts of infringement in the district through the sale of accused products.
• Core Dispute: Plaintiff alleges that various percussive massage devices sold by Defendant infringe a patent related to the mechanical configuration and quick-connect attachment features of such devices.
• Technical Context: The technology relates to handheld, battery-powered percussive massage guns, a consumer electronics category that has gained significant market traction for personal muscle therapy and athletic recovery.
• Key Procedural History: The patent-in-suit is a continuation of a series of prior applications, but the complaint does not reference any prior litigation, inter partes review (IPR) proceedings, or licensing history relevant to the asserted patent.

Case Timeline

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

U.S. Patent No. 11,857,482, “Massage Device Having Variable Stroke Length” (issued Jan. 2, 2024)

The Invention Explained

• Problem Addressed: The patent describes prior art massaging devices as suffering from deficiencies such as being bulky, generating excessive heat, producing significant noise, and being difficult to use for extended periods (’482 Patent, col. 1:26-31).
• The Patented Solution: The patent discloses embodiments of a massage device intended to solve these problems. Key features include a specific "Scotch yoke" drive mechanism designed to reduce noise and wear, and a "quick-connect" system for attaching and detaching massage heads (’482 Patent, col. 5:1-25, col. 6:46-56). The quick-connect system, using magnets in one embodiment, is described as allowing a user to switch heads rapidly, potentially without turning the device off (’482 Patent, col. 6:52-56).
• Technical Importance: The described technology aims to improve the user experience, durability, and versatility of percussive massagers by directly addressing common complaints of noise and the inconvenience of changing attachments for different muscle groups.

Key Claims at a Glance

• The complaint asserts independent claims 1 and 34 (Compl. ¶16-17).
• Independent Claim 1 includes the following essential elements:
  • A housing and a piston with a substantially cylindrical bore at its distal end.
  • A motor to reciprocate the piston.
  • A drive mechanism controlling a predetermined stroke length.
  • A "quick-connect system" configured to secure a massaging head by sliding it into the bore "while the piston reciprocates the predetermined stroke length at the first speed."
• Independent Claim 34 includes the following essential elements:
  • A housing and a piston.
  • A motor to reciprocate the piston.
  • A drive mechanism between the motor and piston controlling a predetermined stroke length.
  • A "quick release connector" at the piston's distal end configured to secure a massaging head "while the piston reciprocates," where the head has a "substantially cylindrical pocket" to receive the connector.
• The complaint’s use of "at least" when identifying asserted claims suggests it may reserve the right to assert additional dependent claims later in the litigation (Compl. ¶16-17).

III. The Accused Instrumentality

Product Identification

The complaint accuses a range of "battery-powered percussive massagers" sold by Defendant, including the "Walgreens (Percussion Massager), Therabody (Theragun Elite), Bulzen (Mini Percussion Massager), TRAKK (Hot & Cold Massage Gun, Double Head Percussion Device TR-DUOGN-300), and Beurer (Mini Massage Gun)" (Compl. ¶13, 16-17).

Functionality and Market Context

The complaint broadly categorizes the accused products as percussive massagers (Compl. ¶13). It alleges, in conclusory fashion, that they contain the elements recited in claims 1 and 34 (Compl. ¶16-17). The complaint does not provide specific details, diagrams, or excerpts from user manuals describing the technical operation of the accused products' drive mechanisms or attachment systems.

IV. Analysis of Infringement Allegations

The complaint alleges that the accused products infringe claims 1 and 34, either literally or under the doctrine of equivalents, but does not provide a detailed, element-by-element mapping of specific product features to the claim limitations (Compl. ¶16-17).

’482 Patent Infringement Allegations (Claim 1)

’482 Patent Infringement Allegations (Claim 34)

Identified Points of Contention

• Scope Questions: A central dispute may concern the functional limitation requiring the attachment system to be "configured to secure" a head "while the piston reciprocates." The question for the court will be whether this language requires a specific design intended for this purpose, versus a system where such an action might be physically possible but not an intended or advertised function.
• Technical Questions: The complaint lacks specific factual support (e.g., product testing, user manual excerpts, or technical diagrams) for its allegations. A primary question will be what evidence exists to demonstrate that the accused products—particularly from different manufacturers like Therabody and Beurer—all practice the specific functional requirements of the claims, especially the "attachment-while-moving" feature.

No probative visual evidence provided in complaint.

V. Key Claim Terms for Construction

• The Term: "quick-connect system ... configured to secure the first massaging head ... while the piston reciprocates" (Claim 1); "quick release connector ... configured to secure a first massaging head while the piston reciprocates" (Claim 34).

  • Context and Importance: This functional language appears to be a key distinguishing feature of the invention. The infringement analysis for all accused products will critically depend on the construction of "configured to" and whether it requires more than the mere possibility of attaching a head while the device is operating.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification states that the system "allows a user to quickly switch massaging heads" and "may be used without turning off the massaging device" (’482 Patent, col. 6:52-56). It further discloses that the massage head may be shaped "to allow it to easily slip into the opening ... even while the piston ... is moving" (’482 Patent, col. 7:9-13). This language may support an interpretation based on intended or possible use.
    • Evidence for a Narrower Interpretation: A defendant may argue that "configured to" implies a specific structural design that actively facilitates this function, rather than just permitting it. The specification's primary embodiment for this feature is a magnetic system (’482 Patent, col. 6:57–col. 7:4), and a defendant might argue that other systems (e.g., a simple friction fit) are not so "configured."

• The Term: "a drive mechanism" (Claims 1 and 34).

  • Context and Importance: Practitioners may focus on this term because the patent's background identifies noise as a key problem with prior art devices, and the detailed description provides a specific "Scotch yoke" drive with "spring bars" as a solution to reduce noise and wear (’482 Patent, col. 1:29-30, col. 5:1-51). The breadth of this term will determine whether the claims cover all types of motor-to-piston linkages or are narrowed to the specific type disclosed.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term "drive mechanism" is a generic mechanical term, and the claims do not add structural limitations to it. This supports giving the term its broad, ordinary meaning.
    • Evidence for a Narrower Interpretation: A defendant could argue for a narrower construction by pointing to the specification’s focus on the Scotch yoke as the solution to the noise problem, potentially suggesting that the "invention" is the specific mechanism disclosed, not just any drive mechanism.

VI. Other Allegations

• Indirect Infringement: The complaint contains a single count for direct patent infringement and does not allege facts or make claims for indirect infringement (i.e., induced or contributory infringement) (Compl. ¶11, 15).
• Willful Infringement: The complaint does not contain an explicit allegation of willful infringement. However, the prayer for relief requests a declaration that the case is "exceptional" under 35 U.S.C. §285, which could lead to an award of attorneys' fees (Compl., p. 6, ¶5).

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

• A core issue will be one of evidentiary proof: can the plaintiff demonstrate, with technical evidence, that the various accused products from different manufacturers all contain an attachment system that is specifically "configured to" secure a new massage head while the device is operating? The success of the case may hinge on whether this key functional limitation is met.
• The case will also present a question of claim scope: will the term "drive mechanism" be construed broadly to cover any mechanical linkage that converts rotary to linear motion, or will it be narrowed by the specification's detailed disclosure of a "Scotch yoke" mechanism designed to solve the noise problems of the prior art?
• A third question concerns the breadth of the accusation: by targeting multiple products from different brands (e.g., Theragun, Beurer), the plaintiff assumes the asserted claims are broad enough to read on their potentially diverse internal structures. The case will test whether the infringement theory holds up across this range of distinct product designs.