innovative/”new technology” claims foiled by Dastar

Powerbahn, LLC v. Foundation Fitness LLC, 2021 WL 2689852,
No. 1:19-cv-1678-AT (N.D. Ga. Ma.r 26, 2021)

POWERbahn alleged that defendant Wahoo made false
representations in its ads by failing to disclose POWERbahn and its CEO as the
source of the technology behind Wahoo’s KICKR products, and by representing
“that its KICKR products were innovative and incorporated new technology when
they in fact were not and did not.” PowerBAHN to plead around Dastar by arguing
that Wahoo misrepresented the “inventive services” that “embody” the KICKR
products as Wahoo’s own, when those inventive services are actually
attributable to POWERbahn. That doesn’t work because Wahoo sold goods that it
made, and Dastar clearly prevents attempts to protect ideas “embodied in”
goods. The accused ads were clearly for goods, not services, let alone services
“qualitatively different” from anything necessarily done in connection with
selling the KICKR products.

False advertising: POWERbahn alleged that ads that the
KICKR’s road feel relies on “innovative technology” and “new algorithms” “to
improve responsiveness and better replicate the sensation of riding on the
road” were literally false because: (1) in designing the KICKR control system,
Wahoo followed the teachings of a patent application filed in the 1980s and (2)
the algorithms in Wahoo’s KICKR infringe on POWERbahn’s patent published in the

Statements describing the KICKR technology as “innovative”
were nonactionable puffery, unlike similar claims that were combined with
specific claims about proprietary technology, “original,” or “first.” What
about “new algorithms” and another ad touting “advanced algorithms that
originated with the iconic KICKR smart trainer”? A claim based on failure to
attribute the technology to POWERbahn was clearly foreclosed by Dastar. But
POWERbahn further argued that the algorithms weren’t new and didn’t originate
with the KICKR product. Those statements were falsifiable.

However, POWERbahn provided no evidence that they were
actually false (even if pending patent infringement claims could show patent
infringement)—it didn’t show that the KICKR flywheel didn’t “use[ ] new
algorithms to improve responsiveness” or that the KICKR CORE does not use
advanced algorithms that “originated with the iconic KICKR smart trainer.”
Wahoo acknowledged that it built its products off of pre-existing technology,
stating that it “based its design for the control system of the KICKR on the
expired, prior art Sargeant patent.” But the court agreed with Wahoo that,
“[e]ven if one aspect of a new product is based on something else, it does not
mean that other aspects of the product, and the product as a whole, are not new
and innovative.”

POWERbahn’s expert opined that Wahoo’s products infringed on
the relevant patents, including by using equations disclosed by the patents.
But he didn’t opine that the algorithms weren’t new.  POWERbahn could have created a jury question
by comparing the algorithms in the KICKR with previously existing algorithms
from other products. But it didn’t.

from Blogger

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