Hyper Ice, Inc. v. Lowe's COMPANIES, INC.

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Hyper Ice, Inc. (California) and Hyperice IP Subco, LLC ( Delaware)
  • Defendant: Lowe's Companies, Inc. (North Carolina)
  • Plaintiff’s Counsel: Scott Douglass & McConnico LLP; Miller Barondess LLP
• Case Identification: 6:24-cv-00036, W.D. Tex., 01/16/2024
• Venue Allegations: Venue is alleged to be proper based on Defendant operating physical retail stores, including a specific store in Waco, Texas, and committing alleged acts of infringement within the district.
• Core Dispute: Plaintiff alleges that Defendant’s sale of various third-party percussive massage devices infringes one utility patent and one design patent related to the mechanical and ornamental features of such devices.
• Technical Context: The technology concerns handheld, battery-powered percussive massage devices designed for deep muscle stimulation, pain relief, and increasing muscle metabolism.
• Key Procedural History: Both asserted patents claim priority through a chain of preceding applications. The '482 utility patent is a continuation of a continuation, tracing its priority to a 2013 provisional application. The D'317 design patent is a continuation of a divisional application. This extensive prosecution history may provide context for claim construction and potential arguments regarding prosecution history estoppel.

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 identifies deficiencies in prior art massaging devices, stating they are often bulky, generate excessive heat, are noisy, and are difficult to use for extended periods (’482 Patent, col. 1:28-34). A specific source of noise and wear identified is the mechanical "smack" within drive mechanisms like a Scotch yoke when the direction of the piston changes (’482 Patent, col. 5:15-26).
• The Patented Solution: The invention describes a handheld percussive massager with several improvements. These include a quick-connect system, often employing magnets, to allow users to easily swap different massage heads (’482 Patent, col. 6:50-55; Fig. 6). A key aspect of the solution is a functional configuration that permits the massage head to be attached even while the piston is reciprocating, facilitated by features like a tapered head (’482 Patent, col. 7:8-12). The patent also describes a unique thermal management system with isolated cavities for the motor and a heat sink to improve cooling and prevent motor damage from dust and lint (’482 Patent, col. 6:10-21, 6:39-44).
• Technical Importance: The described combination of features aimed to produce a quieter, more durable, and more versatile high-performance percussive massager for consumers and professionals (’482 Patent, col. 5:46-52).
• No probative visual evidence provided in complaint.

Key Claims at a Glance

• The complaint asserts independent Claim 1, either literally or under the doctrine of equivalents (Compl. ¶21).
• The essential elements of Claim 1 are:
  • a housing;
  • a piston having a proximal end and a distal end, the distal end of the piston having a substantially cylindrical bore;
  • a motor at least partially within the housing and operatively connected to the proximal end of the piston, wherein the motor is configured to cause the piston to reciprocate at a first speed;
  • a drive mechanism that controls a predetermined stroke length of the piston; and
  • a quick-connect system comprising the distal end of the piston and a first massaging head, wherein the quick-connect system is configured to secure the first massaging head to the percussive massager by a proximal end of the massaging head being slid into the bore while the piston reciprocates the predetermined stroke length at the first speed.

U.S. Patent No. D886,317 - "Percussive Massage Device" (Issued June 2, 2020)

Technology Synopsis

The D'317 patent protects the ornamental, non-functional design of a percussive massage device. The claimed design consists of a T-shaped body with a generally cylindrical handle grip oriented perpendicularly to a main housing that contains the operational components and from which the massage head attachment point protrudes (D'317 Patent, Figs. 1-8).

Asserted Claims

Design patents contain a single claim for the ornamental design as shown and described; the complaint alleges infringement of the patent generally (Compl. ¶25; D'317 Patent, "CLAIM").

Accused Features

The complaint specifically accuses the "NuvoMed Cordless Rechargeable Percussive Massager" of infringing the D'317 patent based on its overall ornamental appearance (Compl. ¶18).

III. The Accused Instrumentality

Product Identification

The complaint accuses a range of "battery-powered percussive massage devices" of infringing the ’482 Patent, including models from Sharper Image, NuvoMed, Osaki, LifePro Fitness, Tzumi, Flynama, and Synca Wellness (Compl. ¶13). For the D'317 Patent, only the NuvoMed Cordless Rechargeable Percussive Massager is explicitly accused (Compl. ¶18).

Functionality and Market Context

The complaint describes the accused products as devices that operate via a reciprocating piston and massage head, driven by an internal motor (Compl. ¶21). The complaint alleges these products are sold by Defendant Lowe's through its physical retail stores in the Western District of Texas and via its website, lowes.com (Compl. ¶4, ¶8). The complaint does not provide further technical details about the specific operation or market position of the accused products.

IV. Analysis of Infringement Allegations

'482 Patent Infringement Allegations

The complaint alleges that the accused battery-powered percussive massagers meet all limitations of at least Claim 1. The complaint does not provide specific evidence mapping product features to claim elements, instead alleging infringement on a general basis.

Identified Points of Contention

• Scope Questions: A primary question may be whether the term "quick-connect system" as used in the patent, which discloses a magnetic embodiment, can be construed to read on the potentially diverse attachment mechanisms (e.g., friction-fit, push-button) that may be used by the numerous accused products.
• Technical Questions: The complaint alleges the accused systems are "configured to secure the first massaging head... while the piston reciprocates." This raises an evidentiary question: what evidence does the complaint provide that the accused products are not only capable of this action but are specifically configured for it, as required by the claim? The functionality of attaching a head to a rapidly moving piston is a specific operational capability that may require particular design considerations beyond a simple bore and shaft.

V. Key Claim Terms for Construction

• The Term: "quick-connect system"

  • Context and Importance: The definition of this term is central to the infringement analysis for the final, and most specific, limitation of Claim 1. Its scope will determine whether the various attachment mechanisms of the accused products infringe. Practitioners may focus on this term because the patent's only detailed embodiment is magnetic, creating a potential dispute over whether the claim scope is limited to that disclosure.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent describes the system's purpose as allowing a user to "quickly switch massaging heads" (’482 Patent, col. 6:52-54). Plaintiff may argue this supports a functional definition that is not limited to the specific magnetic structure shown but could encompass any mechanism achieving that purpose.
    • Evidence for a Narrower Interpretation: The specification's only detailed description and illustration of a "quick-connect system" is one that uses magnets 606 and 624 to hold the massage head in place (’482 Patent, col. 6:56-68; Figs. 6, 6A). A defendant could argue that the claims should be interpreted in light of this sole disclosure, limiting the term to magnetic systems or those with structurally equivalent components.

• The Term: "configured to secure ... while the piston reciprocates"

  • Context and Importance: This functional language is highly specific and may be a key point of non-infringement for defendants. The dispute will likely center on whether merely being physically able to force a head into a moving piston meets this limitation, or if it requires specific design features that affirmatively enable this functionality.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent specification notes that if the end of the massaging head is "rounded, pointed or tapered," it can "easily slip into the opening 608 even while the piston 608 is moving" (’482 Patent, col. 7:8-12). A plaintiff could argue that any device with a reciprocating bore is inherently "configured" for this if a compatible head is used.
    • Evidence for a Narrower Interpretation: A defendant may argue that "configured to" implies an intentional design for that specific purpose, not an incidental capability. They might contend that without features explicitly designed to facilitate safe and easy attachment during operation (such as the tapered head mentioned in the specification), a device is not "configured" for this function, even if it is physically possible.

VI. Other Allegations

The complaint does not contain specific counts or factual allegations to support indirect infringement or willful infringement.

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

1. A central evidentiary issue will be one of demonstrated functionality: can Plaintiff prove that the accused products, from multiple different manufacturers, are in fact "configured to secure" a massage head while the piston is actively reciprocating? This requires proving a specific, dynamic operational capability for which the complaint currently provides no direct evidence.
2. The case may also turn on a question of claim scope: will the term "quick-connect system" be construed broadly to encompass any tool-less attachment method, or will it be limited by the patent's specific disclosure of a magnetic embodiment, potentially placing some of the accused products outside the claim's reach?
3. For the design patent assertion, the key question will be the application of the "ordinary observer" test: is the overall ornamental design of the accused NuvoMed massager substantially the same as the D'317 patent's design, such that it would deceive an ordinary observer into purchasing the accused product instead of the patented one?