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Quality Innovative Products, LLC v. Brand 44, LLC

United States District Court, D. Colorado

October 4, 2018

QUALITY INNOVATIVE PRODUCTS, LLC, PLAYMONSTER, LLC, Plaintiffs,
v.
BRAND 44, LLC, Defendant.

          ORDER DENYING MOTION TO DISMISS

          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on Defendant Brand 44, LLC's (“Defendant” or “Brand 44”) Motion to Dismiss (or “Motion”). [#21]. This civil action was referred to the undersigned pursuant to the consent of all Parties. See [#17]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Having reviewed and considered the Motion and associated briefing, the applicable case law, the entire docket, and the comments offered at the September 18, 2018 Motion Hearing, the court DENIES the Motion to Dismiss for the reasons stated herein.

         BACKGROUND

         The court draws the following facts from the Amended Complaint and accepts that they are true for purposes of the instant Motion. Plaintiffs Quality Innovative Products, LLC and PlayMonster, LLC (collectively, “Plaintiffs”) initiated this suit for alleged patent infringement against Defendant, asserting infringement of certain claims of three United States Patents: U.S. Patent Nos. 8, 454, 450 (the “'450 Patent”), 9, 067, 146 (the “'146 Patent”), and 9, 415, 316 (the “'316 Patent”) (collectively, the “Patents-in-Suit”), each directed to a swing. [#1]. The Patents-in-Suit are each entitled “Swing” and name Gregory Cordray as the inventor and Quality Innovative Products, LLC (“QIP”) as the Assignee. See [#26-2; #26-5; #26-7]. PlayMonster, LLC (“PlayMonster”) is the exclusive Licensee of the Patents-in-Suit. See [#1; #26 at ¶¶ 22, 37, 55]. According to Plaintiffs, Brand 44 manufactures, imports, uses, and/or sells the Slackers® Sky Saucer swing-a swing with a circular plastic seat suspended from a pivot with tethers to allow for swinging in several directions-which allegedly violates several claims of the Patents-in-Suit. See [#26 at 7-21; #26-1 through #26-9].

         The '450 Patent:

         The '450 Patent issued on June 4, 2013. See [#26-2]. The patent explains that swings generally take two forms: (1) “conventional rectangular rigid swing seats . . . meant to move on an arc in a back-and-forth motion” or (2) “tire swings . . . that can twist and swing in any direction such as diagonal, circular, etc.” [Id. at 1:14-21].[1] The inventions of the '450 Patent are directed to improving the “limited entertainment and enjoyment” these swings provide to “certain children and other users that are not capable of maintaining the proper position . . . and/or . . . controlling the motion of the swing in the manner intended and required.” [Id. at 1:27-31]. In addition, the inventions of the '450 Patent aim to improve the “ease of manufacture, ease of installation, ease of use, durability, variety of modes of operation, safety, and other such attributes” of these two traditional swings. [Id. at 1:34-37].

         The '450 Patent discloses technology pertaining to a concave central portion-shaped as a circular disk and supported by a web of radial ribs-that then attaches to several tethers along its peripheral edge which then connect to a support member. See [id. at 1:41-2:44]. This allows the swing body “to swing in any direction including back-and-forth, sideways, diagonal, circular, etc. and such that the swing body can twist.” [Id. at 3:9-14].

         The patent includes 22 claims. Relevant here, independent Claim 22 discloses, 22. A swing comprising:

a body including a concave central portion defining a recessed concave seat and a peripheral edge surrounding the concave central portion, wherein said peripheral edge of said body is circular such that said body defines a circular disk;
said peripheral edge comprising:
a plurality of tether openings, each of said tether openings adapted to receive an associated tether;
a top wall that extends radially outward from said recessed concave seat; an outer circular wall connected to and projecting downwardly from an outer end of said top wall;
a peripheral groove defined adjacent said top wall and said outer circular wall, wherein said plurality of tether openings each open through said top wall and into said peripheral groove; and,
a tether system adapted to suspend the body from an associated support member, said tether system engaged with said tether openings and at least part of said tether system located in said peripheral groove.

[Id. at 7:3-23].

         The '146 Patent:

         The '146 Patent is a continuation-in-part of the United States Patent Application No. 12/850, 696 which matured in the '450 Patent, and issued on June 30, 2015. See [#26-5]. Much like the '450 Patent, the '146 Patent discloses a swing comprised of a plastic central portion, shaped as a circular disk with radial ribs for support and strength, which connects to several tethers suspended from a support member, see [#26-5 at 1:44-2:61], thereby allowing the swing body to “swing in any direction including back-and-forth, sideways, diagonal, circular, etc. and such that the swing body can twist[, ]” see [id. at 3:46-51]. The inventions of the '146 Patent are again directed to improving the “entertainment and enjoyment” found lacking in traditional rectangular-seated swings and tire swings as well as improving the “ease of manufacture, ease of installation, ease of use, durability, variety of modes of operation, safety, and other such attributes” of such swings. See [id. at 1:28-40].

         The '146 Patent includes 18 claims. Several are at issue here, including independent Claim 1 and 18, and dependent Claims 2, 4, 5, and 8. [#26-6]. In the Motion to Dismiss, Brand 44 utilizes independent Claim 1 as a ...


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