Tug Toy Survives §101 Challenge on Motion to Dismiss

FYF-JB, LLC sued Pet Factory for allegedly infringing its tug-toy patent.  Pet Factory responded with a motion to dismiss, arguing that the asserted claims are not patent eligible, and further, noncompliant with 35 USC §112.  FYF-JB v Pet Factory

In particular, FYF-JB’s tug-toy patent (US 9,681,643) describes that a need existed in the art for a dog toy that emitted a noise when forces was applied via tugging, instead of via direct compression of a squeaker.  Claims 1 and 12 of the ‘643 patent both recite a gripping member (or means for gripping) that transmits force to a portion central to the gripping member(s), the central portion containing a noise maker.  Pet Factory argued that the ‘643 claims are directed to the natural phenomenon of “force and its direction,” “used by humans in activities such as tug-of-war since antiquity.”  FYF-JB countered that the ‘643 patent claims are directed to an article of manufacture which happens to use force for its operation.

Noting that Pet Factory’s urgings that the court ought to ignore the portions of the ‘643 claims that are “well-understood, routine and conventional” would be more appropriate in a novelty analysis and that Pet Factory had not provided one decision in which an article of manufacture was found patent ineligible at step one of the Alice inquiry, the court observed “while the claims use the word “force,” it is in the context of operating the tug toy,” and held that the claims of the ‘643 patent to be patent eligible.

After refuting the applicability of cases cited by Pet Factory to support its position on the §112 argument, the court declined to decide the issue in the context of a motion to dismiss, leaving the parties to continue their tug of war.