In a recent decision in a patent case between massage-device companies, Judge Gardephe (S.D.N.Y.) adopted two recommendations of the magistrate judge. The first R&R recommended denial of Defendant Tzumi’s motion for partial summary judgment, in which Tzumi asserted non-infringement arguments, and the second R&R recommended denial of Tzumi’s motion to dismiss Plaintiff Therabody’s willfulness allegations. See Therabody, Inc. v. Tzumi Elecs. LLC, No. 21 Civ. 7803 (PGG) (RWL), 2023 WL 6387231, at *1 (S.D.N.Y. Sept. 29, 2023).

Tzumi’s partial-summary-judgment motion focused on four patents directed to percussive massage devices with limitations as to how users “grasp” the devices. Id. at *3–9. For example, one limitation entails “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 *5.

In its partial-summary-judgment motion, Tzumi argued that its percussive massage device does not infringe Therabody’s patents because the second handle of its device is not “graspable,” but rather a short “transition section” between the two longer handles. Id. at *9. Tzumi asserted that the “grasping limitations” require that all three handles be long enough 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. at *10.

Magistrate Judge Lehrburger recommended rejecting Tzumi’s proposed claim construction and deferring claim construction until the record is more developed. Id. at *11. Tzumi did “not appear” to object to that recommendation. Id. at *21. Rather, Tzumi requested that the court not adopt portions of the R&R that “could be interpreted as precluding [Therabody’s] other disclaimers or estoppels from the prosecution histories.” Id. at *20.

Judge Gardephe concluded that Tzumi’s arguments “regarding ‘grasping limitations’ and disclaimers and estoppel” did not warrant summary judgment. Id. at *21. The court added that, “[t]o the extent Tzumi’s objections express a more generalized concern about Judge Lehrburger’s views regarding Tzumi’s claim construction and use of the specification, and his discussion of the prosecution history,” those statements would not be binding for the rest of the case. Id. Still, the court praised Magistrate Judge Lehrburger’s analysis as “detailed, painstaking, and well supported,” and suggested that the parties “take his analysis into account.” Id.

Tzumi also moved to dismiss Therabody’s allegations of willful infringement of eight other patents. Id. at *17. Judge Lehrburger recommended denying the motion, reasoning in part that Therabody’s initial filing of the lawsuit could provide the requisite knowledge for its willfulness claims in the operative, second amended complaint. Id. at *17–19. Because Tzumi did not object to that recommendation, Judge Gardephe reviewed the R&R for clear error. Id. at *22. Finding none, the court denied Tzumi’s motion to dismiss, too. Id.