DCT

1:17-cv-00123

Loops v. Bob Barker Co

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Key Events
Complaint

I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:17-cv-00123, D. Utah, 07/20/2017
  • Venue Allegations: Venue is alleged to be proper in the District of Utah because Defendant Bob Barker Company, Inc. purportedly has a "regular and established place of business" in the district—a large distribution and sales center—and has allegedly committed acts of infringement within the district.
  • Core Dispute: Plaintiff alleges that Defendant’s flexible toothbrush product infringes a patent directed to a safety toothbrush with a flexible handle designed to prevent its use as a weapon.
  • Technical Context: The technology concerns personal care products, specifically toothbrushes, designed for use in correctional and mental health facilities where inmate safety and the prevention of improvised weapons are paramount.
  • Key Procedural History: The complaint alleges that the Defendant approached the Plaintiff in early 2016 to potentially source Plaintiff's patented product. After receiving confidential information and product samples marked with the patent number, Defendant allegedly terminated discussions and launched a competing product. Subsequent to the filing of this complaint, the U.S. Patent and Trademark Office issued an Ex Parte Reexamination Certificate for the patent-in-suit in 2023, confirming the patentability of all originally issued independent claims and amending one independent claim.

Case Timeline

Date Event
2004-08-18 '285 Patent Priority Date (via application 10/920,822)
2013-05-28 U.S. Patent No. 8,448,285 Issues
2016 (Early) Defendant allegedly approached Plaintiff to source product (Compl. ¶14)
2016-2017 Accused #FXTB Toothbrush launched (Compl. ¶16)
2017-07-20 Complaint Filed
2023-08-23 Ex Parte Reexamination Certificate for '285 Patent Issues

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

U.S. Patent No. 8,448,285 - *"Toothbrush and Methods of Making and Using Same"*

  • Issued: May 28, 2013

The Invention Explained

  • Problem Addressed: The patent addresses the danger of conventional, rigid-handled toothbrushes being modified by prison inmates into weapons, such as shanks for stabbing (’285 Patent, col. 1:25-30). It also notes that prior safety toothbrushes with very short handles were "awkward to use" and could lead to poor dental hygiene (’285 Patent, col. 1:35-39).
  • The Patented Solution: The invention is a toothbrush with an elongated body made of a flexible material that is difficult to fashion into a weapon (’285 Patent, col. 3:61-65). This flexible body is molded over a more rigid internal head piece that holds the bristles. This two-material construction allows the user to intentionally flex the brush to create temporary rigidity for effective cleaning, while the overall flexibility prevents its use as a weapon (’285 Patent, col. 2:30-34; Abstract).
  • Technical Importance: The design attempts to balance the safety requirements of a correctional facility with the functional requirements of a standard-length toothbrush, addressing a specific need in the institutional supply market (’285 Patent, col. 1:31-41).

Key Claims at a Glance

  • The complaint asserts independent claims 1 and 11, and dependent claims 2-3, 6, 9, 12, and 15-16 (’285 Patent, col. 7:62-col. 9:60; Compl. ¶19).
  • Independent Claim 1:
    • An elongated body being flexible throughout the elongated body and comprising a first material and having a head portion and a handle portion;
    • a head comprising a second material, wherein the head is disposed in and molded to the head portion of the elongated body;
    • a plurality of bristles extending from the head forming a bristle brush;
    • wherein the first material is less rigid than the second material.
  • Independent Claim 11 (as amended by Reexamination Certificate):
    • An elongated body being flexible throughout the elongated body comprising a first material and having a head portion and a handle portion;
    • a head comprising a second material, wherein the head is disposed in and molded to the head portion of the elongated body;
    • a plurality of bristles extending from the head forming a bristle brush, the head further comprising two index pins;
    • wherein the first material substantially encases the second material at the head portion;
    • wherein the first material is less rigid than the second material.

III. The Accused Instrumentality

Product Identification

  • The accused instrumentality is the "#FXTB Toothbrush" (Compl. ¶16).

Functionality and Market Context

  • The complaint describes the accused product as a "competing flexible toothbrush" promoted and sold to "correctional and mental health facilities" (Compl. ¶¶13, 16). No probative visual evidence provided in complaint. The complaint does not provide further technical detail regarding the construction, materials, or specific operation of the #FXTB Toothbrush.

IV. Analysis of Infringement Allegations

The complaint does not provide a claim chart or a detailed narrative theory of infringement beyond the conclusory allegation that the #FXTB Toothbrush infringes claims 1, 2-3, 6, 9, 11-12, and 15-16 of the ’285 Patent (Compl. ¶19). Analysis is therefore limited to identifying potential areas of dispute based on the claim language.

  • Identified Points of Contention:
    • Technical Question: A primary evidentiary question will be whether the #FXTB Toothbrush is constructed with the two-part structure required by the claims: a flexible "elongated body" (the first material) that is molded over a more rigid internal "head" (the second material) that holds the bristles. The complaint does not contain factual allegations detailing the accused product's internal structure.
    • Scope Question: The construction of the term "flexible throughout the elongated body" will be critical. The parties may dispute the degree of flexibility required to meet this limitation and whether the accused product possesses that property.
    • Technical Question: For infringement of claim 11, a factual question will be whether the accused product's internal head component contains "two index pins" and is "substantially encase[d]" by the outer flexible material.

V. Key Claim Terms for Construction

  • The Term: "flexible throughout the elongated body" (from Claims 1 and 11)

    • Context and Importance: This limitation defines the core safety characteristic of the invention. The definition of "flexible" and the scope of "throughout" will likely be central to determining infringement.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification describes the purpose of the flexibility is to "prevent or limit the possibility of using or converting the toothbrush... to a shank/stabbing weapon" (’285 Patent, col. 3:61-65). A party could argue this purpose-driven language supports a functional definition of "flexible" that is not tied to a specific material hardness.
      • Evidence for a Narrower Interpretation: The patent discloses a "preferred hardness" for the flexible body material "of between about 75 and about 95 on the Shore A scale" (’285 Patent, col. 4:27-31). A party could argue that this disclosure should limit the scope of "flexible" to materials within or near this specified durometer range.

  • The Term: "the first material substantially encases the second material at the head portion" (from Claim 11)

    • Context and Importance: This term dictates the physical integration of the two core components. Practitioners may focus on this term because "substantially" is a term of degree whose meaning will depend on evidence from the patent.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: Figure 9 depicts the flexible outer body (102) surrounding the inner head (104), which could support a reading that "substantially encases" means to surround the head sufficiently to prevent its easy removal and weaponization (’285 Patent, Fig. 9).
      • Evidence for a Narrower Interpretation: The specification states that the flexible body "may encase all but the top side 111 of the head 104" (’285 Patent, col. 6:11-13). A party could argue this language implies that "substantially encases" requires near-total envelopment, with only the bristle-bearing surface left exposed.

VI. Other Allegations

  • Willful Infringement: The complaint alleges that Defendant’s infringement has been willful (Compl. ¶21). The factual basis for this allegation is Defendant's alleged pre-suit knowledge of the ’285 Patent. The complaint claims that Plaintiff provided Defendant with "product samples with packaging that included reference to the ‘285 Patent" during business discussions in early 2016, prior to Defendant launching its competing #FXTB Toothbrush (Compl. ¶¶14-16).

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

  • A central issue will be one of evidentiary proof: does the accused #FXTB Toothbrush actually embody the two-material construction recited in the claims, specifically a flexible outer body molded over a distinct, more rigid internal head? The complaint’s lack of technical detail on this point makes it a primary factual hurdle for the Plaintiff.
  • A key legal issue will be one of claim construction: how will the court define "flexible throughout the elongated body"? The outcome of this construction could determine whether the physical characteristics of the accused product fall within the patent's scope.
  • The case will also present a question of intent: based on the alleged pre-suit business dealings and purported knowledge of the patent, did the Defendant engage in willful infringement? This will turn on the specific facts surrounding the parties' interactions and Defendant's state of mind.