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Hypoxico, Inc v. Colorado Altitude Training LLC

August 28, 2012

HYPOXICO, INC., PLAINTIFF,
v.
COLORADO ALTITUDE TRAINING LLC, DEFENDANT.



OPINION

Plaintiff Hypoxico, Inc. ("Hypoxico") sues defendant Colorado Altitude Training LLC ("CAT") for infringement of patents owned by Hypoxico. The case was brought on for jury trial beginning Monday, January 30, 2012. After a two-week trial, the jury returned a verdict in favor of plaintiff, finding that CAT had infringed Hypoxico's patents and was liable in the amount of $1 million.

CAT now moves for judgment as a matter of law on the issues of infringement, or, in the alternative, moves for remittitur or a new trial pursuant to Federal Rule of Civil Procedure 59. Hypoxico moves for a permanent injunction, an accounting for uncompensated infringing sales, and pre- and post-judgment interest.

The court grants CAT's motion for judgment as a matter of law, holding that CAT's 315, 430, and 535 tent systems do not infringe the 222 patent. The court grants CAT's motion for judgment as a matter of law on the issue of infringement of the 652 patent. The court denies CAT's alternative motion for a new trial should the Federal Circuit vacate or reverse the amended judgment.

The court denies CAT's motion for remittitur. The court denies Hypoxico's motion for an accounting. The court denies Hypoxico's motion for pre- and post-judgment interest.

The court denies Hypoxico's motion for a permanent injunction.

Evidence

As noted above, the court held a trial in this case beginning on January 30, 2012. This was the second trial in a long-running patent infringement litigation between two companies that manufacture altitude-simulation systems. After the previous trial, which took place in January 2009, the court overturned the jury's verdict for plaintiff. The court also reversed the first jury's damages verdict of $4,325,000, holding that Hypoxico's expert damages testimony in that trial was deeply flawed and could not credibly support a claim for lost profits. Accordingly, the court granted a new trial as to both liability and damages.

At issue in the second trial are two patents held by Hypoxico: United States Patent No. 5,964,222, entitled "Hypoxic Tent System," (the "222 patent"), and United States Patent No. 5,799,652, entitled "Hypoxic Room System and Equipment for Hypoxic Training and Therapy at Standard Atmospheric Pressure," (the "652 patent"). Both patents protect systems for creating an oxygen-depleted ("hypoxic") environment.

Spending time in a hypoxic environment causes the human body to undergo a series of physiological changes in response to the reduced amount of available oxygen. In particular, the body produces more red blood cells and increases the amount of oxygen-carrying hemoglobin in the blood. Because the body retains these adaptations for some time after returning to low altitude, it is believed that athletes who spend time at altitude can gain a competitive advantage when competing at sea level. Simulating high altitudes allows athletes to experience these changes and advantages without actually leaving sea level.

CAT's Products

CAT makes a variety of altitude simulation systems. Each system features an enclosure, and a gas-separation device that introduces hypoxic air into the enclosure. CAT's "uncontrolled" tent systems are the only products at issue for the present motions.*fn1 CAT's tent systems are fabric or plastic tents constructed around a supporting structure to create an enclosure large enough for a person to sleep in. Four types of tent systems are currently at issue: the 150, 315, 430, and 535. Hypoxico alleges that each of the four tent systems infringed both of the patents in suit.

The 222 Patent Issues

As will be shown in more detail when the 222 patent is described, the essential issue for trial was whether the CAT products infringed the elements of that patent dealing with portability.

The CAT 150 tent, also called the "Mailbox Tent," was CAT's smallest tent product and was advertised on CAT's website as being portable. PTX 193 at 9.*fn2

At trial, CAT did not contest that the 150 tent infringes the 222 patent. 2/7 Trial Tr. 1034:16-22. However, CAT no longer sells the 150 tent. CAT's president, Lawrence Kutt, testified that CAT obtained legal advice prior to introducing the 150 tent and that CAT's counsel at that time advised that the product did not infringe the patents in suit. CAT subsequently employed a different attorney who offered a different opinion. Upon receiving the opinion from counsel that the 150 tent infringed the 222 patent, CAT removed the product from the market. 2/7 Trial Tr. 971:20-975:1.

Under these circumstances, the trial did not involve any issue about liability with respect to the 150 tent in connection with the 222 patent. However, the issue of damages remained as to the 150 tent.

The CAT 315, 430, and 535 tent systems are larger systems, in the form of a room large enough to hold a bed. The systems have four walls, a floor, and a ceiling, made of heavy transparent plastic. They are supported by poles at the vertical and horizontal edges. The systems have a zippered door on one side through which the user enters and exits. They are listed in CAT's marketing materials as "walk-in" tents. PTX 193 at 3, 5. They are not described as being portable. See id.

It is important to note that each tent consists of a single large "piece" of plastic, which is shaped to create the walls, the floor, and the ceiling. There are not separate smaller pieces making up the walls, etc.

The 315 tent is 7' x 7.5' x 6'. Id. The 7.5-foot dimension is the width, the 7-foot dimension is the depth, and the 6-foot dimension is the height. The tent fits over a Queen-sized bed. The marketing materials show a Queen-sized bed inside the 315 tent, plus two small bedside tables, one on either side of the bed, with lamps. Id. As far as the weight of the system, the tent itself weighs 24 pounds, the poles weigh 35 pounds, and the air unit weighs 70 pounds. 1/30 Trial Tr. 32:7-10. Therefore the total weight for the 315 system is 129 pounds. Id. There are poles equal in length to the dimensions described above. They attach at joints, but the poles in the 315 tent do not come apart to reduce their size.

CAT's 315 tent system was set up in the lobby outside of the courtroom during the trial.

The 430 tent is 7'6" x 9'6" x 6'. PTX 193 at 5. The 9.5-foot dimension is the width, the 7.5-foot dimension is the depth, and the 6-foot dimension is the height. The tent fits over a King-sized bed. Id. The marketing materials for the 430 tent show the tent with the King-sized bed, plus bedside tables and lamps. Id. The tent for the 430 system weighs 25 pounds, the poles weigh 40 pounds, and the air unit weighs 70 pounds. 1/30 Trial Tr. 32:7-10. The total weight of the 430 system is 135 pounds. The wall with the 9.5-foot dimension is in sections, so that there is no pole 9.5 feet long. However, the poles on the 7.5-foot wall are of that length.

The 535 tent, although not included in the marketing materials, is larger than the 430 tent. The 535 system is custom-built for those customers who require a larger system. The tent and poles for the 535 system weigh at least as much as those of the 430 system, and possibly more depending on the size. The longest poles for the 535 system are at least as long as those for the 430 system, and possibly longer. Id.

The 222 Patent

At trial, Hypoxico argued that CAT's 315, 430, and 535 tent systems infringe claim 3 of the 222 patent. It was agreed that the issues to be tried under the 222 patent would be limited to whether CAT's systems were portable and had a collapsible supporting structure within the meaning of the patent.

Claim 3 of the 222 patent incorporates claim 1. The relevant claims read as follows:

1. A system for providing a reduced-oxygen atmosphere for breathing to a user at rest, said system comprising:

an oxygen-extraction device having an inlet taking in ambient air and an outlet for transmitting oxygen-depleted air;

a portable tent having internal space therein and an entry communicating with said internal space and through which the user can enter said internal space; said tent having collapsible supporting structure; said outlet communicating with said internal space and transmitting said oxygen-depleted air to said internal space;

said internal space communicating with an external environment through naturally existing gaps and fabric pores, allowing excess air to escape said internal space and equalizing atmospheric pressure inside said tent to the outside parameter.

3. The system according to claim 1 and said hypoxic tent made of - 6 soft synthetic or natural material and supported by supporting structure, which is inflatable or assembled from segments made from metal, plastic or composite material. (Emphases added.) Diagrams in the 222 patent show a dome-like tent structure that can be stretched over a bed or mattress.

The patent specification states that the "invention makes it possible to make a portable version of the Hypoxic Room System, convenient for athletes while traveling, and may be easily installed at home or in any hotel room." 222 Patent, col.1 ll.37-40. It goes on to state that the "system can be easily disassembled and packed in luggage." Id. at col.2 ll.50-51.

During the trial, the court provided the jury with handouts entitled "Claim Construction," which the court also read to the jury. The court's claim ...


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