Judge dismisses patent infringement claim in e-cigarette case

By Sandra Lane | Jun 25, 2018

LOS ANGELES – A federal judge in the U.S. District Court for the Central District of California recently granted summary judgment in favor of defendants in a lawsuit alleging patent infringement concerning vaping products, popularly known as e-cigarettes.

LOS ANGELES – A federal judge in the U.S. District Court for the Central District of California recently granted summary judgment in favor of defendants in a lawsuit alleging patent infringement concerning vaping products, popularly known as e-cigarettes.  

In his lawsuit, Henry Chung, owner of the ‘812 patent for vaping products, alleged that the defendants, Vaporous Technologies LLC and Christian Rado, whose products include the J-Pen Blender 2-in-1 Kit, Pal Tank, and 11 mm Blender 2-in-1 kit infringe on his ‘812 patent.

In his June 4 ruling, U.S. District Judge Ronald S.W. Lew granted Vaporous Technologies and Rado’s motion for partial summary judgment as to non-infringement of the ‘812 patent.

In his ruling, Lew said, “The court ... grants defendants’ motion. Having reviewed all papers submitted pertaining to these motions, the court now finds and rules as follows ... If no reasonable jury could find equivalence, then the court must grant summary judgment of no infringement under the doctrine of equivalents.”  He said that based on the lack of evidence and plaintiff’s reliance on argument only, no reasonable jury could find equivalence between the ‘812 patent and the functions of the accused products.

“Plaintiff offers no expert testimony, nor does he provide any evidence to show that the accused products have a component that serves the necessary wet scrubbing function," Lew said. "He simply provides a picture of one of the accused products broken down into its components.”

In addition, the judge said, “Plaintiff’s only argument is that vapor must pass through liquid after it flows through the tube and passes the ball when the ball is in the open position.” Lew said this argument is hard to follow and does not provide evidence that once the cigarette oil is heated in the atomizer, the vapor then passes through some unidentified liquid to cool and clean the vapor.

There seemed to be a lack of evidence in connecting the two products, he said. “As shown in the pictures both parties provided, the vapor passes through a tube to the mouthpiece. The tube through which the vapor passes does not contain liquid, and plaintiff does not point to a single container holding liquid through which the vapor must pass,” the judge said. “Plaintiff does not make such an argument in the section of his opposition addressing the doctrine of equivalents. Rather, in that section, plaintiff simply states that the accused products provide substantially the same function.”

According to Lew, the plaintiff failed to prove his allegations. The judge said that the court is not asking plaintiff to provide significant evidence, or even an expert report, to show the accused products perform the wet scrubbing function, but plaintiff must do more than provide two photographs showing parts of one of the accused products

“Plaintiff has failed to do so,” the judge said, “and therefore, no genuine issue of material fact can exist under the doctrine of equivalents. Because plaintiff has failed to provide any evidence sufficient to raise a genuine issue of material fact as to infringement, either literal or under the doctrine of equivalents, of the ‘812 patent, the court grants defendants’ motion as to non-infringement of the ‘812 patent.”

Lew concluded his discussion of the case and his ruling by saying, “Based on the foregoing, the court denies plaintiff’s motion and grants defendants’ motion. Because the court has granted summary judgment in favor of defendants as to non-infringement of the ‘812 patent, the only claim that remains is defendants’ invalidity counterclaim. Defendants may either continue to pursue this counterclaim or voluntarily dismiss it and move forward with a motion for attorneys’ fees.”  

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