Toothbrush walks into a bar

by Dennis Crouch

Maxill, Inc. v. Loops, LLC (Fed. Cir. 2020)f [Maxill v. Loops]

The Loops patent covers a flexible toothbrush — and the claims require “an elongated body being flexible throughout the elongated body.”  US8448285 (Claim 1). Apparently, these brushes are sold primarily to “institutional” settings such as prisons.

Early in the case, the patentee moved for summary judgment of infringement.  The district court denied the motion, and acted sua sponte to enter summary judgment of non-infringement.  Apparently, the judge had inspected the accused product and found that the head-portion of the elongated body wasn’t flexible. Although the body was made of flexible rubber, once the stiff head (with bristles) was molded-in, the body was no longer flexible.

On appeal, the Federal Circuit has reversed and remanded — finding that the district court erred in  its claim construction of “elongated body being flexible throughout the elongated body.”  The appellate court found that the flexibility requirement does not require the whole assembly to be flexible, but rather only that the elongated itself be flexible.

Loops argues that the accused toothbrush’s elongated body is made of orange flexible material that is flexible throughout (a position that Maxill does not dispute) and that this component is separate from the more-rigid head component. . . . We agree with Loops and conclude that, based on the claim language and structure, as well as the specification, the district court misunderstood the flexibility limitation to pertain to the elongated body when combined with the head as opposed to the elongated body alone. . . . Reversed.

Slip. Op. Read the claim and tell me what you think? Does the body need to be flexible when assembled, or only pre-assembly?

1. A toothbrush, comprising:

an elongated body being flexible throughout the elongated body and comprising a first material and having a head portion and a handle portion;

a head comprising a second material, wherein the head is disposed in and molded to the head portion of the elongated body; and

a plurality of bristles extending from the head forming a bristle brush, wherein the first material is less rigid than the second material.

Claim 1.

= = = =

The appellate panel also took issue with the sua-sponte summary judgment without first providing the party with a “full and fair opportunity to present its case.”  Here, although Loops had presented its summary-judgment argument of infringement, the appellate panel found that summary-judgment of non-infringement to be an entirely different matter. “Under the circumstances, we conclude, Loops did not have a full and fair opportunity to respond to Maxill prior to the district court’s sua sponte grant of summary judgment.”

= = = =

I was researching old inventors, but couldn’t find the burial place of William Addis, the toothbrush inventor. . . No plaque.

38 thoughts on “Toothbrush walks into a bar

  1. 11

    The head is described as part of the elongate body, and thus the claim would require that the head also be flexible, so in that respect I would disagree with CAFC’s opinion.

    On the procedural summary judgment point, one could argue that the patentee waived his right to a response because, by asserting his own SJ of infringement, he was contending that on the issue of infringement there was no genuine issue of material fact. Thus the court simply had to choose what was in fact correct – infringement, or noninfringement. Would have been incongruous for the patentee to object that he hadn’t been given an opportunity to identify disputed facts when he himself said there were none.

  2. 10

    In reading through all of the comments and different interpretations suggested for the claims, one thing comes to mind. There are several very reasonable suggestions put forth either in these comments or the court decisions. Unless the specification or prosecution history resolves this debate, I would suggest the claim language is invalid as being indefinite. Whether you like “reasonable certainty” (the current standard) or “insoluble ambiguous” (the standard when the claims were drafted), the arguments and comments here suggest that neither phrasing of the definiteness requirement is satisfied.

    1. 10.1

      The big picture when looking at this case is that with the reversal of the Circuit Court, and in looking at the other Claims of the 8,448,285 Patent, how is this toothbrush now difference than any other rubber and plastic toothbrush on the market? From what I can see it is not. Loops says that they have a toothbrush that is “flexible throughout”. Well every other toothbrush should now be considered “flexible throughout”. The only distinguishable feature that the patent has is the finger pocket on the back which the accused product does not have. Maxill still has an exceptionally strong case for non-infringement for if Maxill infringes on the 8,448,285 Patent, then pretty much every toothbrush out there also infringes.

  3. 9

    Interesting fact: The first U.S. patent related to a toothbrush was by Hiram N. Wadsworth, U.S. Patent No. 18,653 granted on November 7, 1857. Although there was a prior English patent by William Addis (who was convicted felon I think for inciting public uprising), the leading inventors in the dental industry were based in France in the early 18th century.

  4. 8

    A man walks into a bar.

    He says, ” Ouch.”

  5. 7

    Enamelly, I respond to puns, but this time at I’m at a floss for words.

    1. 7.1

      At oral argument, Maxill fought tooth and nail to uphold the judgment, but CAFC bristled at the lower court’s unpolished claim construction, so it ultimately scrubbed the ruling.

  6. 6

    Hey ho. Another claim that uses the terminology of a human body, such the one I inhabit. But my head is experiencing difficulty distinguishing between my own head and my own “head portion”. Perhaps that’s because I’m not a toothbrush, the bristles on my head being ill-adapted for brushing teeth (whether my own or somebody else’s).

    No wonder the judge struggled to construe the claim..

  7. 5

    The claim says that the elongated portion is flexible “throughout.” Then it says that the elongated portion has a “head portion.” So, the head portion must also be at least partially flexible (or else the elongated portion is not flexible throughout). The head is “disposed in” the “head portion.” While I can see that one could argue that the head is not part of the “head portion,” but it seems to me that a simpler reading is that the head is part of the head portion (that would seem to me would be the consequence of being “disposed in”).

    If one takes the view that the head is part of the head portion, one could still argue that flexible “throughout” does not require that every atom or molecule be flexible (and thus there might be small regions that are relatively inflexible compare to their surroundings), but then, if you take that point of view, that raises the issue of how “throughout” does the flexibility needs to be to be flexible “throughout.” Of course (to state the obvious), the text of the specification and prosecution history could be enlightening as to what flexible “throughout” means and whether “disposed in” makes the head part of the head portion (and I have not read either).

    So, I don’t understand those that say that the district Judge read the claim wrongly and that the head does not need to be flexible (unless there is something in the spec or prosecution history that leads one to such an interpretation). It seems to me that it would be more accurate to say that the conclusion that the head does not need to be or needs to be flexible is not clear (and perhaps the parties should have been given more of a chance to weigh in on the issues).

    Feel free to beat me up for my opinion, I am interested in seeing how you point out the error of my thinking – if there is any.

    1. 5.1

      The head is “disposed in” the “head portion.” While I can see that one could argue that the head is not part of the “head portion,” but it seems to me that a simpler reading is that the head is part of the head portion (that would seem to me would be the consequence of being “disposed in”).

      No.

      The head is its own separate element. If indeed a part of, it would need not be disposed in.

      A clue may be the additional description you omitted: “and molded to”

      One need not mold a separate element to something if it already a part of that something.

      1. 5.1.1

        And also, the claim says the head is a second material, and the first material is less rigid than the second material [i.e., the head is more rigid.]

      2. 5.1.2

        Yes but thats not the point.

        The point is that the ‘head portion’ is no longer flexible once the inflexible head is molded onto it.

        Think if I take a flexible piece of rubber and nail it onto a wood board in two places. The rubber can no longer flex because its nailed to a stiff board.

        Since the head portion is not flexible once the head is molded on, then the elongate body is not flexible “throughout.”

        1. 5.1.2.1

          Not correct — you are confusing two different things as if they are one thing. They are two different things (even as they have been joined).

          1. 5.1.2.1.1

            Anon,
            Yes, they are two different parts. No doubt about it. But when you mold a first flexible part to a second non-flexible part, then the first part can no longer flex.

            Think about gluing a piece of rubber (flexible) to a wooden board. Once its glued, the rubber can no longer flex, because it is glued to an underlying inflexible piece of wood. Even though they are two different parts.

            So the question is can you satisfy a claim element that one part is “flexible throughout,” even if that part cant flex in its entirely because part of it is molded to a second, different, inflexible part. 

            1. 5.1.2.1.1.1

              You confuse a state of the after combined item with the claim of state of only one item of the pair.

              You are simply — and factually — in error.

              1. 5.1.2.1.1.1.1

                Wow. You got your ass handed to you again, Snowflake.

                1. Wow, you are 180 degrees off yet again, my pal Shifty.

                  You continue to choose to post in your train wreck matter – on posts that have long lost the interest of most everyone.

                  Your memes/tells have not changed.

        2. 5.1.2.2

          ? The elongated body IS the same flexible material throughout, albiet where the claimed-stiffer head member is molded to it that combination of the two materials can prevent flexing in that [tooth brushing] area. [Which is obviously desirable, and thus also a POSITA common-sense claim interpretation.]

          1. 5.1.2.2.1

            Yeah but they dont claim the material is flexible throughout. They claim the part itself is flexible throughout.

            If I glue a piece of flexible rubber to a stiff board, the piece of rubber is no longer flexible. Even though separate from the board it is flexible, and the board is clearly a second, different elemen.t

          2. 5.1.2.2.2

            “[Which is obviously desirable, and thus also a POSITA common-sense claim interpretation.]”

            Which canon of interpretation is this?

    2. 5.2

      The patentee may have euchred themselves in this ruling. As I commented above, with this ruling and looking at the Claim language I cannot see how this toothbrush ( save and except some finger pocket on the back ) can now be considered any different than any other bi or tri component toothbrush out on the market?

  8. 4

    No plaque. That’s a groaner. When you read the claim as a whole, it’s pellucid that the district court was wrong. In other words, the lower court did not read the entire claim and consider every limitation important.

    1. 4.1

      ..but but but Gisting (a lesson from the Supreme Court, no less)…

  9. 3

    OT, but I just received another complaint about this:
    It has become all too common for may large companies to “sell” [actually, retaining a big % of all financial recoveries, and licenses] piles of their patents to shell companies set up by patent trolls and their financial investors. They now accounts for a large % of all new patent suits, as now regularly documented on IPWatchdog, etc. The real surprise is that far too much of the time and costs of discovery subpoenas and depositions in these suits is falling on the prep and prosecution attorneys for the patents and retired company inventors!
    I wonder if many patent firms are now trying to cover these future costs liabilities in their client retention agreements? It is reportedly hard enough already these days for competent patent prep and prosecution work to provide sufficient margins.

    1. 3.1

      The real surprise is that far too much of the time and costs of discovery subpoenas and depositions in these suits is falling on the prep and prosecution attorneys for the patents and retired company inventors!

      Link? – to the view that these are falling on the prep and pros folks – this is the first that I have ever heard of this.

  10. 2

    Yes, making conventional toothbrushes in prisons into shivs, a stabbing weapon, is a problem.
    But what does a party accomplish by leading a D.C. judge into clearly miss-reading a claim? I have seen a number of cases over the years in which the attorneys apparently thought that was a client victory, but all it accomplished was the extra cost of a CAFC reversal. Here the “elongated body being flexible throughout” and the “head comprising a second material” are clearly set forth in the claim as two separate elements. Is it in hopes that the party will give up and not appeal?

    1. 2.1

      The question isnt if the head is part of the body. The point is that the ‘head portion’ is no longer flexible once the inflexible head is molded onto it.

      Think if I take a flexible piece of rubber and nail it onto a wood board in two places. The rubber can no longer flex because its nailed to a stiff board.

      Since the head portion is not flexible once the head is molded on, then the elongate body is not flexible “throughout.” This is certainly not “clearly misreading” the claim.

      (And anyway the point in getting a judge to dismiss even if you think it will be overturned is to put pressure on settlement price. I think anyone whose litigated for more than 2 months recognizes this)

      1. 2.1.1

        This is certainly not “clearly misreading” the claim.

        Actually, it is precisely that.

  11. 1

    From the decision:
    “The claim does not describe the head as being a part of the elongated body”

    From the Claim:
    an elongated body being flexible throughout the elongated body and comprising a first material and having a head portion and a handle portion”

    Does this make sense to anyone here?

    1. 1.1

      Yes, I think it makes sense. “head portion” just identifies the segment of the body where the head attaches. But it’s not a distinct element. As Paul Morgan points out, the actual “head” is specified in the next element, and unlike the body, isn’t required to be flexible.

      I also tend to agree with Paul’s suggestion that the DC was wrong and CAFC right about the construction. Requiring the entire assembled toothbrush to be flexible means improperly extending that limitation beyond just the body element. You could say the DC was overly “flexible” in its claim construction.

      Finally, I do give maxill some points for the cute product name – “Supermaxx”

      Happy New Year all!

      1. 1.1.1

        Ah, I see now.

        Though this construction seems to make it plausible that “handle portion” could be an anchor point for a ridgid handle. Then they’d just have a patent cocering a toothbrush with a flexible neck.

        1. 1.1.1.1

          Glad it was helpful.

          I didn’t interpret “handle portion” quite like that. My take was that it just refers to the remaining portion of the body that doesn’t have the head attached. So by default, that remainder is the toothbrush handle. In other words, the part of the body with no head attached doesn’t instead have a separate thing attached, it just functions as the handle all by itself.

      2. 1.1.2

        re “Supermaxx”: My reaction was somewhat different from “cute product name.” I figured it would be someone in the prison industrial complex that would come up with “Supermaxx” as the brand of a toothbrush.

        1. 1.1.2.1

          I was being a little tongue in cheek there (pun totally intended) by calling it “cute”. The P-I-C is nothing to celebrate of course, but you can sort of appreciate the gallows humor in the product name.

          Another thing about this case that got me was how the competition in prison toothbrushes seems to be rather cutthroat (intentional pun yet again).

          1. 1.1.2.1.1

            +1 (for each pun)

      3. 1.1.3

        Makes one wonder. Is the patent in question for a “toothbrush” or is the patent for the invention of a “head of a toothbrush?”
        Once the head is molded into the body, it is now part of the “toothbrush”. If that head in the toothbrush cannot flex, then the “toothbrush” is not flexible throughout.

        1. 1.1.3.1

          Once the head is molded into the body, it is now part of the “toothbrush”. If that head in the toothbrush cannot flex, then the “toothbrush” is not flexible throughout.

          Maybe take some time to read the claims. (I do note that you insert quotations around the word ‘toothbrush,’ perhaps realizing that what you post does NOT reflect the actual claim…)

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