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Judge Lehrburger Recommends Deferring Claim Construction Until Full Record is “Graspable”

What does it mean for a handle of a massage device to be “graspable”?  We do not yet know.  In Therabody, Inc. v. Tzumi Electronics LLC, No. 21-CV-7803, 2022 BL 425916 (S.D.N.Y. Nov. 28, 2022), Magistrate Judge Lehrburger rejected one possible answer to that question, and deferred answering the question definitively until completion of the parties’ briefing on construction of the relevant patent claims.

As relevant here, Plaintiff Therabody alleges that massage devices sold by Defendant Tzumi infringe on four of Therabody’s patents.  Id. at *1–2, *10.  Those patents have claims that include “grasping” limitations.  For example, one claim is directed to a “method of using a percussive massage device” that requires “grasping [a] first handle portion, massaging a first body part, grasping [a] second handle portion and massaging the first body part, and grasping [a] third handle portion and massaging the first body part.”  Id. at *3.

Tzumi moved for partial summary judgment, asserting that its massage devices are non-infringing because only two handles of its devices, as opposed to three, are “graspable.”  Id. at *10.  Tzumi based that assertion on its proposed claim construction: that a handle is “graspable” only if it is “of a length sufficient for a person with a large hand to firmly and comfortably grip each handle portion with at least three to four fingers extending through the opening.”  Id.

Judge Lehrburger recommended denying Tzumi’s motion for partial summary judgment.  Id. at *13.  As an initial matter, the court noted that the motion was premature because “the cases where summary judgment has been found appropriate before discovery typically are those in which the claim construction advanced by the movant was supported entirely by the intrinsic evidence . . . and in which there were no factual disputes.”  Id. at *15.  But Tzumi’s proposed construction was not “indisputably established by the intrinsic evidence provided,” and Therabody “affirmatively reject[ed] Tzumi’s claim construction, while also pointing out the existence of factual disputes even if that claim construction were accepted.”  Id.

Next, the court rejected Tzumi’s proposed claim construction.  Id. at *16–27.  The court reasoned that Tzumi had not “put forward any evidence that the ordinary and customary meaning of ‘grasping’ a handle to a person of ordinary skill in the art” matched the proposed construction.  Id. at *16.  The court added that Tzumi’s proposed construction (i) would result in independent claims that are narrower than the dependent claims, (ii) improperly imported limitations from the specifications, and (iii) was not compelled by the patents’ prosecution history.  Id. at *17–27.

Judge Lehrburger concluded that the court should defer construing the grasping limitations until completion of claim construction.  Id. at *27.  He explained that “construing terms in fifteen claims on the current record and briefing, only to revise its construction, w[ould] not serve to advance the case.”  Id. at *28.

The district judge’s decision regarding the report and recommendation is pending.