MerchSource, LLC v. Hyper Ice, Inc. et al.

MerchSource, LLC, a consumer goods company that designs, sources, and distributes products including those sold under licensed brands like SHARPER IMAGE, initiated a patent infringement lawsuit against Hyper Ice, Inc., a prominent U.S.-based health technology company known for its Hypervolt percussive massage devices, and its intellectual property holding entity, Hyperice IP Subco, LLC. The dispute centers on Hyper Ice's "Powerboost-branded percussion massagers," specifically including models such as the Powerboost Deep Tissue, Flex Pivot, Move, Palm, and Pro+ Hot & Cold lines, which MerchSource alleges infringe its patents. The primary patent at issue in this case is U.S. Patent No. 11,938,082, which generally describes a massage device having a variable stroke length, aimed at deep muscle stimulation to enhance metabolism, lactic acid cycling, and pain relief.

The case, 8:24-cv-01512-JWH-DFM, was filed in the U.S. District Court for the Central District of California, where both MerchSource and Hyper Ice are headquartered. Judge John W. Holcomb is presiding over the matter, with Magistrate Judge Douglas F. McCormick also assigned. Shortly after filing on July 9, 2024, MerchSource's case was consolidated into a lead case, 8:24-cv-00098-JWH-DFM, on September 27, 2024, for all pretrial proceedings, including the critical Markman claim construction hearing. Although the individual case docket was administratively closed, all claims remain active within the consolidated proceeding.

This litigation is part of a broader, multi-front patent campaign within the highly competitive percussive massager and recovery device market, signifying escalating intellectual property assertion pressure among industry players. Notably, Hyper Ice itself has been active in enforcing its patents, having previously sued MerchSource in a separate action (8:24-cv-00410), which was also consolidated into the same lead case, and engaged in litigation against other competitors like Therabody and major retailers such as Kohl's. MerchSource's assertion of patents for SHARPER IMAGE-branded products highlights a growing trend where licensed brand operators utilize patent portfolios to safeguard their product lines against market rivals. The consolidated Markman ruling will be pivotal, as its claim construction will bind all parties across the related cases, potentially establishing industry-wide boundaries for the design and functionality of wearable wellness devices.

The patent infringement litigation MerchSource, LLC v. Hyper Ice, Inc. et al. (8:24-cv-01512-JWH-DFM) involves U.S. Patent No. 11,938,082, among others, concerning percussion massager technology. The case was filed in the U.S. District Court for the Central District of California and has been consolidated for pretrial proceedings.

Here's a chronological overview of the key legal developments and current posture:

1. Filing & Initial Pleadings:

• Complaint Filed (2024-07-09): MerchSource, LLC filed a patent infringement complaint against Hyper Ice, Inc. and Hyperice IP Subco, LLC in the U.S. District Court for the Central District of California. The complaint asserted three patents: U.S. Design Patent No. USD0956253S, U.S. Patent No. 11,938,082B1, and U.S. Patent No. 11,857,482B1, all related to percussion massager technology. The accused products were Hyper Ice's "Powerboost" line, sold under the SHARPER IMAGE brand.

2. Pre-trial Motions & Consolidation:

• Consolidation Order (2024-09-27): Judge John W. Holcomb issued a scheduling conference minute order consolidating MerchSource, LLC v. Hyper Ice, Inc. et al. (8:24-cv-01512-JWH-DFM) into lead case 8:24-cv-00098-JWH-DFM for all pretrial purposes, including the Markman claim construction hearing. This consolidation occurred approximately 80 days after filing. The individual case docket (8:24-cv-01512) was administratively closed under JS-6, but all claims remain active within the lead case.
• Related Hyper Ice Filing (2024-02-27): Hyper Ice, Inc. and Hyperice IP Subco, LLC previously filed their own infringement suit against Merchsource (Case No. 8:24-cv-00410) alleging infringement of two patents: design patent USD956253S and utility patent US11857482B1, also related to percussion massager technology. This case was also subsequently consolidated into the lead case 8:24-cv-00098-JWH-DFM on June 21, 2024, for pretrial and Markman proceedings. Several other related cases were similarly consolidated into 8:24-cv-00098.

3. Claim Construction (Markman):

• As of the current date, the consolidated lead case (8:24-cv-00098-JWH-DFM) is still proceeding through pretrial purposes, including the Markman claim construction hearing. No Markman ruling has been issued yet. The court has indicated that a separate trial scheduling order will be issued after claim construction is complete.

4. Discovery Milestones:

• Specific strategic discovery milestones are not detailed in the publicly available summaries, but they would be ongoing within the consolidated lead case in preparation for the Markman hearing and potential subsequent trial.

5. Trial Events, Verdict, Post-trial Motions:

• Given the consolidation for pretrial purposes and the absence of a Markman ruling, the case has not yet reached trial. No trial events, verdict, or post-trial motions have occurred.

6. Settlement, Dismissal, Judgment, or Appeal:

• The case is currently in the pretrial phase, specifically awaiting claim construction in the consolidated lead case. No final disposition (settlement, dismissal, or judgment on the merits) has been reached. The administrative closure of 8:24-cv-01512 does not constitute a dismissal on the merits; the claims remain live within the lead case.

7. Parallel PTAB IPR/PGR Proceedings:

• U.S. Patent No. 11,938,082, asserted by MerchSource, has also been involved in other related patent disputes. For instance, in Shenzhen Kelaisiman v. Hyper Ice (8:24-cv-01472), filed July 3, 2024, Hyper Ice's U.S. Patent No. 11,938,082B1 was among four patents asserted by Chinese manufacturers against Hyper Ice. On July 25, 2025, that case was stayed pending the resolution of two Post-Grant Reviews (PGR2024-00053 and PGR2025-00013) before the USPTO challenging some of the asserted patents, including potentially 11,938,082.
• It is worth noting that Hyperice IP Subco, LLC is listed as the assignee for U.S. Patent No. 11,938,082B1, described as a "Massage device having variable stroke length." The patent is also associated with Hyperice's Hypervolt products.
• Additionally, U.S. Patent No. 11,938,082B1 was asserted in other quickly dismissed cases against Hyperice IP Subco, LLC, including Guangzhou Talong Technology et al. v. Hyperice IP Subco, LLC (filed June 19, 2024, voluntarily dismissed June 27, 2024) and FVOAI Inc. et al. v. Hyperice IP Subco, LLC (filed June 17, 2024, voluntarily dismissed June 27, 2024). These quick dismissals did not involve any merits adjudication.

MerchSource, LLC is represented by attorneys from the intellectual property law firm Renner Otto. The firm is based in Cleveland, Ohio.

Counsel of record for MerchSource, LLC include:

• Mark C. Johnson
  • Role: Partner, likely serving as lead litigation counsel for MerchSource in the consolidated proceedings.
  • Firm: Renner Otto, Cleveland, Ohio.
  • Experience Note: Mark C. Johnson focuses his practice on intellectual property enforcement and defense, handling a wide range of litigation matters from case intake through appeal in federal district courts nationwide, the United States Court of Appeals for the Federal Circuit, and before the Patent Trial and Appeal Board. He has experience representing both plaintiffs and defendants in intellectual property disputes.
• Kyle Bradford Fleming
  • Role: Counsel of record (Attorney Civil Case Opening).
  • Firm: Renner Otto, Cleveland, Ohio.
  • Experience Note: Kyle Bradford Fleming is licensed in California with self-reported practice areas including Intellectual Property and Litigation. He was listed on the initial complaint for MerchSource in the original case (8:24-cv-01512).

Here is the counsel of record representing Hyper Ice, Inc. and Hyperice IP Subco, LLC in the consolidated patent infringement case:

Benjamin A. Herbert

• Role: Counsel for Defendants Hyper Ice, Inc. and Hyperice IP Subco, LLC. He has directly filed documents in case 8:24-cv-01512, including a Notice of Interested Parties and an Answer to the Complaint. He is also listed as an attorney for Hyper Ice, Inc. and Hyperice IP Subco, LLC in the lead consolidated case 8:24-cv-00098.
• Firm: Miller Barondess, LLP, Los Angeles, California.
• Experience: Benjamin A. Herbert is a partner at Miller Barondess, LLP. His practice areas include complex business disputes, intellectual property, and entertainment litigation. He has represented clients in various industries, including technology and entertainment.

Lawrence Robert Laporte

• Role: Counsel for Defendants Hyper Ice, Inc. and Hyperice IP Subco, LLC in the lead consolidated case 8:24-cv-00098.
• Firm: Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California.
• Experience: Lawrence Robert Laporte is a partner and co-chair of the Intellectual Property Practice at Lewis Brisbois. He has extensive experience in patent, trademark, copyright, and trade secret litigation, as well as intellectual property transactions. He has represented both plaintiffs and defendants in a wide range of technologies.

The case 8:24-cv-01512-JWH-DFM was consolidated into lead case 8:24-cv-00098-JWH-DFM for all pretrial purposes through the Markman hearing. As such, the attorneys listed above are representing Hyper Ice, Inc. and Hyperice IP Subco, LLC in the consolidated proceedings that encompass this case.