DCT
3:11-cv-05958
Thermapure Inc v. Water Out Oregon
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: ThermaPure, Inc. (California)
- Defendant: Water Out Oregon and Water Out of Oregon, Inc. (Oregon)
- Plaintiff’s Counsel: Summit Law Group PLLC
- Case Identification: 3:11-cv-05958, W.D. Wash., 11/18/2011
- Venue Allegations: Venue is alleged based on Defendants having conceived, carried out, and made effective acts and transactions within the Western District of Washington.
- Core Dispute: Plaintiff alleges that Defendants' building remediation services, which use heat to kill organisms like mold and insects, infringe a patent on a method for sanitizing enclosures with heated gas.
- Technical Context: The technology relates to structural pasteurization, a process used in the property remediation industry to eradicate biological contaminants from buildings without the use of toxic chemicals.
- Key Procedural History: The complaint alleges that Defendants had knowledge of a prior lawsuit, ThermaPure, Inc. v. Water Out Drying Corp. (E.D. Tex.), in which "Water Out equipment" used by the Defendants was found to infringe the patent-in-suit. This prior verdict is asserted as the basis for willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 1999-05-28 | '812 Patent Priority Date |
| 2001-12-11 | '812 Patent Issue Date |
| 2011-11-18 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Patent No. 6,327,812, "Method of Killing Organisms and Removal of Toxins in Enclosures," issued December 11, 2001.
The Invention Explained
- Problem Addressed: The patent's background section describes the limitations of existing building sanitation methods. Chemical fumigation is described as toxic, time-consuming, and often requires vacating the premises for extended periods, while existing heat treatments were not considered effective against a broad range of organisms, particularly fungi and toxic molds, whose dead remains could still pose a health hazard. (’812 Patent, col. 1:11-53).
- The Patented Solution: The invention is a method for sanitizing an enclosure by introducing heated, environmentally acceptable gas (such as air) through ingress ducts to raise the temperature to a level lethal for target organisms. The process involves positioning temperature probes to monitor and record temperatures in real time, maintaining a slight positive pressure in the enclosure, and then venting the gas through an egress duct equipped with a filter to capture the remains of the killed organisms. (’812 Patent, Abstract; col. 2:1-8). The patent's Figure 1 illustrates a system of heaters, blowers, ducts, temperature sensors, and filters to carry out the method. (’812 Patent, FIG. 1).
- Technical Importance: The claimed method offered a non-toxic approach that could kill a wider variety of organisms than prior heat methods and, crucially, included a step to physically remove the resulting allergenic remains from the environment. (’812 Patent, col. 1:54-63).
Key Claims at a Glance
- The complaint asserts infringement of "one or more of the claims" but does not specify which claims are asserted. (’812 Patent, Compl. ¶11). Independent claim 1 is the broadest method claim.
- Independent Claim 1 recites the following essential elements:
- Preparing an enclosure... by removing or protecting all heat sensitive items.
- Positioning a plurality of temperature indicating probes at predetermined locations in said enclosure.
- Providing at least one ingress duct communicating with said interior... and at least one egress duct communicating between said interior and said exterior.
- Directing said heated gas into said enclosure through said at least one ingress duct for a time sufficient to raise the temperature of said enclosure to said lethal temperature.
- Heating an environmentally acceptable gas to a temperature lethal to predetermined organisms.
- Monitoring the temperature from said probes.
- Recording said temperatures from said probes in real time.
- Establishing at least a slight positive pressure within said enclosure.
- Venting said heated gas from said enclosure.
- Filtering air passing through said egress duct through a filter to remove remains of said organisms carried by said air.
- The complaint does not explicitly reserve the right to assert dependent claims.
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are "products, devices or methods known as 'Water Out'" used for building remediation. (Compl. ¶11).
Functionality and Market Context
The complaint alleges Defendants are "in the business of using heat to remediate homes and commercial buildings so that they are free of mold, viruses, bacteria, insects... and rodents." (Compl. ¶8). The specific operational details of the "Water Out" method are not described. The complaint alleges that "Water Out equipment" used by Defendants was previously found to infringe the ’812 Patent in a separate lawsuit, suggesting the functionality is the same as that previously litigated. (Compl. ¶14).
IV. Analysis of Infringement Allegations
The complaint provides a general allegation of infringement without mapping specific features of the accused method to the elements of any asserted claim. The following chart summarizes the likely infringement theory based on the complaint's general description of the accused service.
’812 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| preparing an enclosure... by removing or protecting all heat sensitive items | The complaint does not provide sufficient detail for analysis of this element. | col. 11:46-49 | |
| positioning a plurality of temperature indicating probes at predetermined locations in said enclosure | The complaint does not provide sufficient detail for analysis of this element, but this step is a necessary predicate for monitoring temperature as part of a heat remediation service. | ¶8 | col. 11:50-51 |
| providing at least one ingress duct... and at least one egress duct... | The "Water Out" method is alleged to be a heat-based process, which would necessitate a means of introducing heated gas into the structure. | ¶8, ¶11 | col. 11:52-55 |
| directing said heated gas into said enclosure... to raise the temperature... to said lethal temperature | The "Water Out" method is alleged to use heat for remediation, which implies this step is performed. | ¶8 | col. 11:56-59 |
| heating an environmentally acceptable gas to a temperature lethal to predetermined organisms | The accused service is described as a "heat" remediation process. | ¶8 | col. 11:60-61 |
| monitoring the temperature from said probes; recording said temperatures from said probes in real time | The complaint does not provide sufficient detail for analysis of these elements. | col. 11:62-63 | |
| establishing at least a slight positive pressure within said enclosure | The complaint does not provide sufficient detail for analysis of this element. | col. 11:64 | |
| venting said heated gas from said enclosure | The complaint does not provide sufficient detail for analysis of this element. | col. 11:65 | |
| filtering air passing through said egress duct through a filter to remove remains of said organisms | The complaint does not provide sufficient detail for analysis of this element. | col. 11:66-68 |
Identified Points of Contention
- Evidentiary Questions: A primary issue will be whether Plaintiff can produce evidence that the accused "Water Out" method, as practiced by Defendants, includes every limitation of the asserted claims. The patent, attached as an exhibit, includes a flowchart illustrating the sequence of claimed steps, including positioning probes, heating gas, monitoring temperature, and filtering exhaust. (’812 Patent, FIG. 2; Compl. ¶9). The complaint does not allege facts demonstrating that Defendants' process includes the specific steps of "recording said temperatures... in real time," "establishing at least a slight positive pressure," and "filtering air passing through said egress duct to remove remains."
- Technical Questions: The infringement analysis may turn on the precise technical operation of the accused method. For example, does the method simply vent hot air from the structure, or does it specifically filter the vented air to capture biological remains as required by the claim?
V. Key Claim Terms for Construction
The Term: "establishing at least a slight positive pressure within said enclosure"
Context and Importance
This term appears to require an affirmative process step rather than an incidental effect. The infringement analysis will depend on whether the accused "Water Out" method is shown to intentionally create and maintain this condition, or if any pressure differential is merely an uncontrolled byproduct of blowing heated air into a building.
Intrinsic Evidence for Interpretation
- Evidence for a Broader Interpretation: The patent states that the positive pressure "allows the hot gas to vent through open windows, doors, etc.," which could suggest that a highly controlled or significant pressure level is not required. (’812 Patent, col. 3:29-30).
- Evidence for a Narrower Interpretation: The specification describes this as a desirable state, stating it is "preferred that enclosure 10 be maintained at a pressure slightly above atmospheric pressure." (’812 Patent, col. 3:26-28). It also explains that back pressure is "desirable to assure surface exposure and penetration of the heated gas to all parts of the enclosure," suggesting a deliberate and functional purpose for the pressure. (’812 Patent, col. 4:19-21).
The Term: "filtering air passing through said egress duct through a filter to remove remains of said organisms"
Context and Importance
This limitation is central to one of the patent's stated objectives: removing allergenic remains. Practitioners may focus on this term because infringement will require evidence that Defendants use a specific "filter" on an "egress duct" for this purpose, not merely venting air through a window screen or other incidental structure. The patent includes a schematic diagram showing a distinct filter assembly (24) connected to an egress duct (22). (’812 Patent, FIG. 1; Compl. ¶9).
Intrinsic Evidence for Interpretation
- Evidence for a Broader Interpretation: The specification notes that gas can leave the enclosure "by opening windows, doors, etc.," which a party could argue constitutes a form of egress. (’812 Patent, col. 2:3-4).
- Evidence for a Narrower Interpretation: The claim language recites "said egress duct," and the specification and figures consistently depict the "egress duct" and "filter assembly" as discrete components of the system intended for a specific purpose. (’812 Patent, FIG. 1; col. 3:32-35). This suggests a dedicated apparatus is required, not just an open window.
VI. Other Allegations
Indirect Infringement
The complaint makes conclusory allegations of contributory and induced infringement without providing specific supporting facts, stating only that Defendants' actions contribute to or induce others to infringe. (Compl. ¶11, ¶16).
Willful Infringement
The complaint alleges that Defendants' infringement has been willful and deliberate based on alleged pre-suit knowledge of the ’812 Patent. (Compl. ¶13). The basis for this knowledge is a prior lawsuit, ThermaPure, Inc. v. Water Out Drying Corp., where "Water Out equipment" was found to infringe. The complaint alleges Defendants learned of this verdict from the defendant in that prior case, from industry press releases, and from discussions within the industry. (Compl. ¶14).
VII. Analyst’s Conclusion: Key Questions for the Case
- A central issue will be one of evidentiary sufficiency. Given the complaint’s lack of factual detail, the case will likely depend on whether discovery shows that Defendants' "Water Out" process actually performs every limitation of the asserted method claims. The analysis will focus on potentially dispositive steps such as establishing a "slight positive pressure" and actively "filtering" organism remains from vented air via a dedicated "egress duct."
- A second key question will concern willfulness. The litigation will likely examine whether Plaintiff can prove that these specific Oregon-based Defendants had actual knowledge of the prior Texas litigation and its outcome, and whether they understood that the process they were using was the same as the one found to be infringing.