Loops LLC v. Bob Barker Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Loops, L.L.C. and Loops Flexbrush, L.L.C. (Delaware)
  • Defendant: Bob Barker Company, Inc. (North Carolina); Maxill Inc. (Canada)
  • Plaintiff’s Counsel: Nadesan Beck P.C.; Lewis Kohn & Walker, L.L.P.
• Case Identification: 1:17-cv-00123, D. Utah, 09/07/2017
• Venue Allegations: Venue is alleged to be proper in the District of Utah because Defendant Bob Barker Company, Inc. maintains a "regular and established place of business" in the district and has allegedly committed acts of infringement there. Venue is asserted over Defendant Maxill Inc. on the basis that it is a foreign corporation with no principal place of business in the United States.
• Core Dispute: Plaintiff alleges that Defendants' flexible toothbrush product infringes a patent related to safety toothbrushes designed to be un-weaponizable for use in secure environments like correctional facilities.
• Technical Context: The technology addresses the market for personal care products in institutional settings where there is a high priority on preventing common items from being modified into dangerous objects.
• Key Procedural History: The complaint alleges that Defendant Bob Barker Company, Inc. engaged in discussions to source Plaintiff's patented product in early 2016 and was provided with product samples bearing markings for the patent-in-suit before launching its own competing product. The patent-in-suit, U.S. Patent No. 8,448,285, was the subject of an ex parte reexamination that concluded on August 23, 2023, with a certificate confirming the patentability of asserted claim 1 and issuing an amended version of asserted claim 11. This analysis considers the claims in their current, post-reexamination form.

Case Timeline

Date	Event
2004-08-18	'285 Patent Priority Date
2013-05-28	'285 Patent Issue Date
2017-09-07	Complaint Filing Date
2023-08-23	'285 Patent Reexamination Certificate Issue Date

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

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

• Patent Identification: 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's background section describes the danger posed by conventional toothbrushes in prisons and other detention centers, where they can be fashioned into pointed weapons, or "shanks," to harm inmates or security personnel (’285 Patent, col. 1:23-31). Existing "safe" alternatives are described as having very short handles, making them awkward, uncomfortable, and hygienically ineffective (’285 Patent, col. 1:32-42).
• The Patented Solution: The invention is a toothbrush with an elongated but flexible body that prevents it from being used as a rigid stabbing implement (’285 Patent, col. 4:60-64). A key embodiment describes a composite structure where a more rigid head piece, which anchors the bristles, is disposed within and molded to a less rigid, flexible material that forms the handle and body (’285 Patent, col. 3:10-18; Abstract). This construction allows a user to temporarily stiffen the brush by gripping it in a specific way for effective cleaning, while ensuring the device remains too pliable to be a weapon (’285 Patent, col. 2:51-56).
• Technical Importance: This design purports to provide a solution that balances the security requirements of correctional facilities with the need for effective and comfortable dental hygiene products for inmates (’285 Patent, col. 1:36-42, col. 5:39-44).

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. 7:62-10:21; Compl. ¶25). Plaintiff reserves the right to assert additional claims.
• Independent Claim 1:
  • An elongated body being flexible throughout and comprising a first material, with a head portion and a handle portion;
  • A head comprising a second material, disposed in and molded to the head portion of the elongated body;
  • A plurality of bristles extending from the head;
  • Wherein the first material (the body) is less rigid than the second material (the head).
• Independent Claim 11 (as amended by Reexamination Certificate US 8,448,285 C1):
  • An elongated body being flexible throughout and comprising a first material, with a head portion and a handle portion;
  • A head comprising a second material, disposed in and molded to the head portion of the elongated body;
  • A plurality of bristles extending from the head, where the head further comprises 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 product is identified as the "#FXTB Toothbrush" (Compl. ¶20).

Functionality and Market Context

• The complaint describes the accused product as a "competing flexible toothbrush" promoted, offered for sale, and sold by Defendant Bob Barker Company, Inc. ("BBC") for distribution in correctional and mental health facilities (Compl. ¶¶ 17, 20). The complaint alleges that Defendant Maxill Inc. manufactures and supplies the #FXTB Toothbrush to BBC (Compl. ¶21). The complaint does not provide further technical details regarding the specific construction, materials, or operation of the accused product.

IV. Analysis of Infringement Allegations

The complaint alleges infringement but does not provide a claim chart or a detailed, element-by-element factual basis for its theory. The following chart summarizes the infringement theory as can be inferred from the general allegations.

'285 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
an elongated body being flexible throughout the elongated body and comprising a first material and having a head portion and a handle portion	The #FXTB Toothbrush is alleged to be a "flexible toothbrush."	¶20	col. 7:63-66
a head comprising a second material, wherein the head is disposed in and molded to the head portion of the elongated body	The complaint does not provide sufficient detail for analysis of this element.		col. 8:1-4
a plurality of bristles extending from the head forming a bristle brush	The complaint does not provide sufficient detail for analysis of this element, though it is an inherent feature of a toothbrush.		col. 8:5-6
wherein the first material is less rigid than the second material	The complaint does not provide sufficient detail for analysis of this element.		col. 8:7-8

No probative visual evidence provided in complaint.

• Identified Points of Contention:
  • Technical Questions: A primary point of contention will be factual. The complaint does not allege any specific facts showing that the accused #FXTB Toothbrush possesses the core technical features of the asserted claims, namely the two-material construction where a "less rigid" body is molded to a "more rigid" head (Claim 1) or that it includes "two index pins" on the head piece (Claim 11). The viability of the infringement claim may depend entirely on evidence of these features emerging during discovery.
  • Scope Questions: The case raises the question of how to construe the term "flexible throughout the elongated body." The dispute may center on whether the specific degree and character of flexibility of the accused product meet this limitation, especially as the patent links this flexibility to the functional purpose of preventing the device from being used as a weapon (col. 4:60-64).

V. Key Claim Terms for Construction

• The Term: "less rigid"

• Context and Importance: This term is critical because it defines the required relationship between the two primary components of the claimed toothbrush. Proving infringement of claim 1 and amended claim 11 requires showing that the accused product's body material is "less rigid" than its head material. Practitioners may focus on this term because the patent does not provide a quantitative measure, leaving its meaning open to interpretation.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: Parties arguing for a broader scope may note that the term is relative and not explicitly defined by a specific durometer range or mechanical test, suggesting any discernible difference in rigidity could suffice. The specification lists a wide variety of possible materials, suggesting the invention is not limited to a narrow set of material properties (’285 Patent, col. 2:38-50).
  • Evidence for a Narrower Interpretation: Parties arguing for a narrower scope may point to the patent's consistent disclosure of a "flexible material" body being molded onto a "more rigid material" head, the purpose of which is to "facilitate attachment of the bristle brush" (’285 Patent, col. 3:36-40). This functional context suggests the difference in rigidity must be significant enough to achieve this stated purpose.

• The Term: "flexible throughout the elongated body"

• Context and Importance: This limitation defines the fundamental safety feature of the invention. The outcome of the case could depend on whether the accused product's body is "flexible throughout" as construed by the court.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification suggests a range of flexibility is contemplated, noting the material hardness can be selected based on the "degree of safety desired" and can range from 75 to 95 on the Shore A scale (’285 Patent, col. 4:26-31). This may support an argument that the term covers a wide spectrum of flexible materials.
  • Evidence for a Narrower Interpretation: The patent repeatedly links flexibility to the functional goal of being "deformable or breakable... to prevent or limit the possibility of using or converting the toothbrush... to a shank/stabbing weapon device" (’285 Patent, col. 4:60-64). A court could construe "flexible throughout" as requiring a degree of flexibility sufficient to achieve this specific anti-weaponization function, potentially narrowing the claim's scope.

VI. Other Allegations

• Indirect Infringement: The complaint exclusively pleads direct infringement under 35 U.S.C. § 271(a) and does not contain allegations of induced or contributory infringement (Compl., Prayer for Relief, A).
• Willful Infringement: The complaint alleges willful infringement based on pre-suit knowledge (Compl. ¶27). The factual basis for this allegation is that Defendant BBC engaged in sourcing discussions with Plaintiff in 2016, received "confidential pricing information and product samples with packaging that included reference to the '285 Patent," and subsequently launched the accused product after terminating communications (Compl. ¶¶ 18-20). The complaint further alleges, upon information and belief, that Defendant Maxill "is aware of the '285 Patent" (Compl. ¶22).

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

• A core issue will be one of evidentiary proof: Given the complaint’s lack of technical specifics, the case will likely turn on whether discovery uncovers evidence that the #FXTB Toothbrush is actually built using the specific two-material structure recited in the '285 patent—namely, a "less rigid" flexible body molded over a "more rigid" bristle-bearing head.
• A central legal question will involve claim construction: The interpretation of "flexible throughout the elongated body" will be critical. The dispute will likely focus on whether this term should be defined broadly by material properties or more narrowly by the functional requirement that the toothbrush be incapable of being used as a weapon.
• A key factual question for damages will be willfulness: The case will examine whether the alleged pre-suit business discussions and provision of patent-marked samples to Defendant BBC are sufficient to prove the "deliberate acts" necessary for a finding of willful infringement, which could expose Defendants to enhanced damages.