United States District Court, D. Colorado
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 ...