Theragun, Inc. v. Tzumi Electronics LLC

Background

Therabody alleged that Tzumi infringed 14 utility and design patents concerning percussive massage devices and attachments. Tzumi moved for partial summary judgment of non-infringement concerning four patents and moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Therabody’s willful-infringement allegations concerning eight patents.

The motions were referred to Magistrate Judge Lehrburger, who recommended denying both. Tzumi objected to aspects of the recommendation concerning the summary-judgment motion. No party objected to the recommendation concerning the motion to dismiss.

Summary-judgment motion

Tzumi argued that the asserted patent claims required all three alleged handle portions on its accused products to be long enough for a person with a large hand to grip each one firmly and comfortably with at least three or four fingers extending through the opening. Tzumi argued that its products had only two graspable handles and therefore could not literally infringe. It also argued that Therabody’s patent-prosecution amendments and statements prevented Therabody from relying on the doctrine of equivalents, which can treat a product as infringing even when it does not literally meet every claim term.

Judge Lehrburger recommended denying summary judgment because Tzumi’s proposed interpretation of the term “grasping” was not indisputably established by the patent claims, specifications, or prosecution histories. The recommendation also concluded that Therabody disputed both Tzumi’s proposed interpretation and factual issues that would remain even if that interpretation were accepted. Judge Lehrburger declined to adopt a final construction of the disputed terms at that stage and recommended deciding claim construction after fuller briefing under the case-management schedule. Because he recommended rejecting Tzumi’s proposed construction and deferring claim construction, he did not reach literal infringement or infringement under the doctrine of equivalents.

Judge Gardephe overruled Tzumi’s objections to the recommendation. He held that Tzumi had not shown that it was entitled to judgment as a matter of law and denied Tzumi’s motion for summary judgment. The court stated that Judge Lehrburger’s discussion was not binding going forward if the record changed, but it did not prevent denial of the motion at that stage.

Motion to dismiss willful-infringement allegations

Tzumi sought dismissal of willful-infringement allegations concerning eight patents. It argued that Therabody had not adequately pleaded Tzumi’s knowledge of those patents before the lawsuit and had alleged only an ordinary patent case rather than conduct supporting enhanced damages. Therabody argued that its pleadings and communications adequately alleged deliberate infringement after Tzumi learned of the patents.

Judge Lehrburger concluded that the complaint did not adequately allege Tzumi’s knowledge of all eight patents before the lawsuit. The allegations that the companies competed in the same industry, that Therabody’s products had received recognition, that Therabody listed its patents on its website, and that Therabody sent a letter identifying other patents were not enough by themselves to establish pre-lawsuit knowledge of the eight patents at issue.

The recommendation nevertheless concluded that the original and amended pleadings, together with a March 29, 2022 email identifying two additional patents, plausibly alleged that Tzumi learned of the patents during the litigation and continued infringing deliberately. At the pleading stage, Therabody was required to plausibly allege deliberate or intentional infringement after knowledge of the patent; it was not required at that point to prove conduct warranting enhanced damages. Judge Lehrburger therefore recommended denying the motion to dismiss.

Because no party objected to that recommendation, Judge Gardephe reviewed it for clear error. He found none, adopted the December 19, 2022 recommendation in its entirety, and denied Tzumi’s motion to dismiss.

Disposition

The court overruled Tzumi’s objections to the summary-judgment recommendation, adopted the recommendations concerning both motions, denied Tzumi’s motion for summary judgment, and denied Tzumi’s motion to dismiss. The Clerk of Court was directed to terminate the two motions. The opinion did not decide whether Tzumi’s products ultimately infringe the asserted patents or whether Therabody will ultimately prove willful infringement.