SWi LLC v. A To Z Quality Fencing LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: SWi, LLC (Wyoming)
  • Defendant: A to Z Quality Fencing, LLC (Wisconsin)
  • Plaintiff’s Counsel: Andrus Intellectual Property Law, LLP
• Case Identification: 2:24-cv-00110, E.D. Wis., 01/26/2024
• Venue Allegations: Venue is alleged to be proper because the Defendant is a Wisconsin limited liability company that resides in the district.
• Core Dispute: Plaintiff alleges that Defendant’s “No Mess, No Dig Fence Installation” method and associated fencing systems infringe a patent related to methods for installing fences without digging post holes.
• Technical Context: The technology concerns fence installation systems that use metal beams driven directly into the ground, over which decorative post sleeves are placed, a method designed to be faster and less labor-intensive than traditional concrete-and-post methods.
• Key Procedural History: The complaint alleges that on January 21, 2024, a social media post by the Defendant announcing the accused products prompted a user to ask if the products were "patent protected," to which an owner of the Defendant allegedly replied that the "process won't hold up." Plaintiff sent a cease-and-desist letter to the Defendant on January 22, 2024, four days before filing this suit. These allegations may be used to support claims of willful infringement.

Case Timeline

Date	Event
2002-09-20	Defendant A to Z Quality Fencing, LLC first registered
2018-03-27	’687 Patent Priority Date
2021-03-23	’687 Patent Issue Date
2024-01-21	Defendant's Facebook post announcing accused product line
2024-01-22	Plaintiff sent cease-and-desist letter to Defendant
2024-01-26	Complaint Filing Date

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

U.S. Patent No. 10,954,687 - "Fence Installation Method" (issued Mar. 23, 2021)

The Invention Explained

• Problem Addressed: The patent describes conventional fence installation—digging holes, pouring concrete, and leveling posts—as "tedious and time-consuming," particularly in difficult soil conditions like frozen ground. This process can be inefficient and create a mess that requires cleanup (’687 Patent, col. 1:16-33).
• The Patented Solution: The invention proposes a method where structural "beams," such as I-beams, are driven directly into the ground. Hollow, tubular "posts" or sleeves are then slid over these beams, which automatically guide the posts into a substantially vertical orientation without separate leveling structures. The beams feature longitudinal channels that receive the ends of fence rails inserted through holes in the tubular posts, thereby securing the fence sections. (’687 Patent, Abstract; col. 2:36-63).
• Technical Importance: The method purports to offer a quicker, less expensive, and cleaner way to install a fence by eliminating the need to dig holes and use concrete (’687 Patent, Abstract).

Key Claims at a Glance

• The complaint asserts independent claims 1 and 10, as well as dependent claims 4-8, 13-18, and 20 (Compl. ¶39).
• Independent Claim 1 recites a multi-step method, the essential elements of which include:
  • Advancing first and second beams (each with a longitudinal channel) into a ground surface.
  • Sliding a first tube over the first beam and placing a second tube over the second beam, such that the tubes attain a substantially vertical orientation.
  • Inserting a rail through holes in both tubes so the rail ends enter the longitudinal channels of the beams.
  • A specific sequence of "tilting" the rail and "sliding" the second tube downward on its beam to level the rail.
  • Securing the first and second tubes at fixed elevations relative to the beams.
• The complaint does not explicitly reserve the right to assert additional claims, but this is standard practice.

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are Defendant's "No Mess, No Dig Fence Installation" service and the associated fence system components, including posts or beams with longitudinal channels, such as "I-beams" (Compl. ¶16, 36, 39).

Functionality and Market Context

• The complaint alleges that Defendant’s method involves driving posts vertically into the ground with post-drivers and then sliding an outer covering over the post (Compl. ¶15). The complaint further alleges, on information and belief, that Defendant has begun or is planning to sell fencing systems that use "I-beams" with longitudinal channels (Compl. ¶22, 28). The complaint references a Facebook post from Defendant introducing a "line of post and rail stiffeners" (Compl. ¶24). The complaint also notes that Defendant operates "A to Z Fence Supplies" to make materials available to other contractors and DIY homeowners and is seeking distributors, suggesting an intent for broad commercialization (Compl. ¶21, 24).

IV. Analysis of Infringement Allegations

’687 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
advancing a first beam into a ground surface so the first beam attains a substantially vertical orientation, the first beam including a first longitudinal channel...	Defendant allegedly sells or installs systems where a first I-beam with a longitudinal channel is advanced into the ground to a substantially vertical orientation (Compl. ¶24). The complaint references a Facebook post, attached as Exhibit B, which is described as showing posts or beams with longitudinal channels (Compl. ¶24).	¶28	col. 4:12-20
advancing a second beam into the ground surface distal from the first beam... the second beam including a second longitudinal channel that opens toward... the first...	Defendant allegedly sells or installs systems where a second I-beam is advanced into the ground, with its longitudinal channel facing the first I-beam.	¶29	col. 6:5-8
sliding a first tube over the first beam... so that the first tube attains the substantially vertical orientation, the first tube defining a first hole...	Defendant allegedly sells or installs systems where a first tube is slid over the first I-beam, automatically attaining vertical orientation, with the tube defining a hole that opens toward the longitudinal channel.	¶30	col. 7:1-17
placing a second tube over the second beam... the second tube defining a second hole...	Defendant allegedly sells or installs systems where a second tube is placed over the second I-beam, with the tube defining a second hole.	¶31	col. 7:31-33
inserting a first rail end of a... first rail through the first hole... so the first rail end enters the first longitudinal channel...	Defendant allegedly sells or installs systems where a first rail end is inserted through the first hole of the first tube and enters the first longitudinal channel of the first I-beam.	¶32	col. 8:1-4
inserting the second rail end of the first rail through the second hole defined by the second tube...	Defendant allegedly sells or installs systems where the second rail end is inserted through the second hole of the second tube.	¶33	col. 8:11-12
...moving the second tube on the second I-beam so the second rail end... enters the second longitudinal channel... and moves vertically downward... (paraphrased)	Defendant allegedly sells or installs systems where moving the second tube on the second I-beam causes the second rail end to enter the second longitudinal channel and move downward.	¶34	col. 9:15-24

• Identified Points of Contention:
  • Evidentiary Questions: The complaint's allegations regarding the specific steps of the installation method are made "on information and belief" and appear to be based on Defendant's announcement of product availability rather than direct observation of an installation (Compl. ¶28-34). A central question will be what evidence exists that Defendant's actual or instructed installation process includes every step of the claimed method, such as the specific "tilting" and "sliding" sequence for leveling the rail.
  • Scope Questions: The complaint alleges infringement based on Defendant having "begun selling or is planning to sell" the accused systems (Compl. ¶28). A potential point of dispute may be whether Defendant's activities have progressed from mere planning to an actual "offer to sell" or "sale" sufficient to constitute direct infringement under 35 U.S.C. § 271(a).

V. Key Claim Terms for Construction

• The Term: "beam"

  • Context and Importance: The patent distinguishes between the structural "beam" that is driven into the ground and the aesthetic "tube" or "post" that slides over it. Infringement hinges on the accused product having this two-part structure. Practitioners may focus on this term to determine if it is limited to the specific "I-beam" embodiment shown or if it covers any driven structural support.
  • Intrinsic Evidence for a Broader Interpretation: The specification suggests "beam" can be constructed from various materials, including metal, composite, polymer, or wood, and is not limited to a single form (’687 Patent, col. 5:19-28).
  • Intrinsic Evidence for a Narrower Interpretation: The preferred embodiments and figures focus heavily on an "I-beam" having a "central support" and "opposing first and second end plates" (’687 Patent, col. 4:37-42; Fig. 4). A party could argue the term should be construed as being limited to this disclosed structure.

• The Term: "longitudinal channel"

  • Context and Importance: This channel is a key functional element, as it receives the rail ends to provide lateral and vertical restraint. The infringement case depends on the accused "I-beams" having this feature.
  • Intrinsic Evidence for a Broader Interpretation: The specification discloses that the channel can have various configurations, including "C- or U-shaped," "triangular, polygon, ellipsoid," or even be "routered out recesses" in a wooden beam, suggesting the term is not limited to one specific shape (’687 Patent, col. 5:1-4; col. 5:31-34).
  • Intrinsic Evidence for a Narrower Interpretation: The detailed description of the primary embodiment defines the channel by the specific spatial relationship of the I-beam's interior plates and central support (’687 Patent, col. 4:62-66). This could support an argument that the term requires a channel formed by multiple distinct surfaces.

VI. Other Allegations

• Indirect Infringement: The complaint alleges induced infringement, stating that Defendant promotes, advertises, and instructs others (such as contractors and DIYers) to use the infringing method (Compl. ¶40). It also alleges contributory infringement by selling or offering to sell "I-beams" and "fence post sleeves or tubes," which are alleged to be material parts of the invention especially adapted for practicing the patented method (Compl. ¶41-42).
• Willful Infringement: The complaint alleges willfulness based on both pre- and post-suit knowledge. It alleges pre-suit knowledge based on a public Facebook exchange where an owner of the Defendant was allegedly alerted to the existence of patent protection for the technology and dismissed it (Compl. ¶25-27). Post-suit knowledge is alleged based on a cease-and-desist letter sent to Defendant on January 22, 2024 (Compl. ¶35).

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

• A central issue will be one of evidentiary proof: The complaint alleges infringement of a multi-step method claim based largely on "information and belief" derived from product announcements. A key question for the court will be whether the Plaintiff can produce evidence that the Defendant's actual installation process, or the process it instructs to others, practices every element of the asserted claims, including the specific "tilting" and "sliding" steps for leveling a rail.
• The case may also turn on the issue of willful infringement: The complaint presents specific factual allegations of pre-suit knowledge via social media comments attributed to one of the Defendant's owners. A key question will be whether these comments, if proven, are sufficient to establish the "objective recklessness" standard required for a finding of willfulness, or if the owner's alleged belief that the "process won't hold up" provides a defense.
• A third core issue will be one of claim scope: The viability of the infringement claim will depend on the construction of key terms like "beam" and "longitudinal channel." The court's determination of whether these terms are limited to the specific I-beam structure shown in the patent's figures or encompass a broader range of functionally equivalent structures will be critical to the outcome.