Therabody Inc. v. Hyperice IP Subco LLC

Therabody Inc. initiated a Post Grant Review (PGR) proceeding against Hyperice IP Subco LLC before the Patent Trial and Appeal Board (PTAB), challenging the validity of U.S. Patent No. 11,938,082. Therabody Inc. is a prominent wellness technology company, widely recognized for its Theragun line of percussive massage devices, alongside other recovery and therapy products. Hyperice IP Subco LLC is the intellectual property holding entity for Hyperice, Inc., a leading sports recovery and wellness brand that manufactures percussion massage devices like the Hypervolt, as well as dynamic air compression and other therapy technologies. Both companies are direct competitors in the rapidly expanding market for percussive massage devices.

The patent at issue, U.S. Patent No. 11,938,082, titled "Massage device having variable stroke length," is owned by Hyperice IP Subco LLC. This patent generally describes a handheld percussive therapy device featuring a piston, a massaging head connected to the piston, a motor, a drive mechanism for moving the piston and massage head, and a control panel, with a particular emphasis on devices capable of variable stroke length. The PGR, case number PGR2025-00013, was filed on December 23, 2024, at the PTAB, which acts as a specialized administrative court within the USPTO for challenging patent validity. The proceeding concluded with a Final Written Decision on May 11, 2026, with a panel including Judge Jeffrey N. Fredman.

This case is notable due to the intense intellectual property rivalry between Therabody and Hyperice within the booming percussive massage device market, valued at over half a billion dollars and projected to grow significantly. Both companies are major players with substantial market presence and ongoing legal disputes concerning their respective patented technologies. The PTAB provides a crucial venue for challenging newly issued patents like the '082 patent, offering a swifter resolution path compared to district court litigation and allowing for a broader range of invalidity grounds in PGRs. The outcome of this PTAB proceeding holds significant implications for the competitive landscape and the enforceability of key patents in the consumer wellness technology sector.

The legal proceedings for Therabody Inc. v. Hyperice IP Subco LLC, PGR2025-00013, primarily involve a Post Grant Review (PGR) at the Patent Trial and Appeal Board (PTAB) concerning U.S. Patent No. 11,938,082. This case concluded with a Final Written Decision on May 11, 2026.

Here's a chronological summary of the key legal developments and outcome for this PTAB PGR:

• Patent at Issue: U.S. Patent No. 11,938,082, titled "Massage device having variable stroke length," was granted on March 26, 2024, and is assigned to Hyperice IP Subco, LLC.
• PGR Petition Filing (2024-12-23): Therabody Inc. filed a petition for Post Grant Review (PGR) against Hyperice IP Subco LLC, challenging the patentability of claims in U.S. Patent No. 11,938,082.
• PGR Institution Decision (2025-07-02): The Patent Trial and Appeal Board decided to institute the Post Grant Review proceeding.
• Discovery Milestones (2025-12-19): During the post-institution phase, Hyperice IP Subco, LLC scheduled the deposition of Therabody Inc.'s witness, Dr. John D. Pratt, for December 19, 2025.
• Final Written Decision (2026-05-11): The PTAB issued its Final Written Decision for PGR2025-00013 on May 11, 2026, terminating the proceeding. The specific details regarding which claims, if any, were found unpatentable are not publicly detailed in the provided search results.

Parallel Proceedings:

While the primary case is a PTAB PGR, there have been related patent disputes and other legal actions between Hyperice and Therabody, some involving different patents or the same patent in district courts:

• Hyperice v. Therabody (C.D. Cal. - US11857482B1): On February 23, 2024, Hyper Ice, Inc. and Hyperice IP Subco, LLC filed a patent infringement complaint against Therabody, Inc. in the Central District of California (Case No. 8:24-cv-00390), asserting U.S. Patent No. 11,857,482 B1. This case was administratively closed on June 21, 2024, and consolidated into a broader multi-case cluster (lead Case No. 8:24-cv-00098) for pretrial proceedings, including a Markman claim construction hearing.
• Hyperice v. Therabody (D. Del. - US11857482B1): Hyper Ice, Inc. and Hyperice IP Subco, LLC filed another patent infringement action against Therabody, Inc. in the District of Delaware on January 3, 2024, also asserting U.S. Patent No. 11,857,482 B1. This case was voluntarily dismissed without prejudice on February 26, 2024, just 54 days after filing.
• Therabody v. Hyperice (Defamation/Trade Libel): Following Hyperice's January 2024 patent suit filings, Therabody sued Hyperice in a U.S. District Court, alleging defamation and trade libel. Therabody's complaint claimed that Hyperice issued a "knowingly false press release" that disparaged Therabody's products and falsely accused them of copying Hyperice.
• FVOAI Inc. et al. v. Hyperice IP Subco (C.D. Cal. - US11938082B1): Separate from Therabody, FVOAI Inc. and others filed a patent infringement action against Hyperice IP Subco, LLC in the Central District of California on June 17, 2024, asserting the same patent as the PGR, U.S. Patent No. 11,938,082 B1. This case was voluntarily dismissed in its entirety on June 27, 2024, only 10 days after filing.

Therabody Inc., the petitioner in PGR2025-00013, was represented by counsel from O'Melveny & Myers LLP. The following attorneys were identified as representing Therabody Inc. in the PTAB proceeding:

• Marc Pensabene

  • Role: Partner
  • Firm & Office Location: O'Melveny & Myers LLP, New York, NY
  • Relevant Experience: An accomplished trial litigator focusing on complex intellectual property and technology litigation, Marc Pensabene has extensive experience representing clients in District Court, the International Trade Commission (ITC), the Patent Trial and Appeal Board (PTAB), and the Federal Circuit, particularly in computer, consumer electronics, and mechanical industries.

• Brian Berliner

  • Role: The provided PTAB document lists him as counsel. He is likely a partner or counsel at the firm.
  • Firm & Office Location: O'Melveny & Myers LLP (office location typically West Coast, often Los Angeles or Newport Beach, based on O'Melveny's IP group presence)
  • Relevant Experience: (Specific details for PTAB and Therabody not immediately available from direct search, but generally, O'Melveny's IP group has a strong patent litigation practice across various technologies.)

• Brian Cook

  • Role: The provided PTAB document lists him as counsel. He is likely a partner or counsel at the firm.
  • Firm & Office Location: O'Melveny & Myers LLP (office location often associated with their technology and IP practices, potentially California)
  • Relevant Experience: (Specific details for PTAB and Therabody not immediately available from direct search, but generally, O'Melveny's IP group has a strong patent litigation practice across various technologies.)

• Daniel Levy

  • Role: The provided PTAB document lists him as counsel. He is likely a partner or counsel at the firm.
  • Firm & Office Location: O'Melveny & Myers LLP (office location typically associated with their technology and IP practices, potentially California)
  • Relevant Experience: (Specific details for PTAB and Therabody not immediately available from direct search, but generally, O'Melveny's IP group has a strong patent litigation practice across various technologies.)

It is noted that O'Melveny & Myers has a robust intellectual property and technology practice, with attorneys experienced in patent litigation before the PTAB and other federal courts.

Here is the counsel of record representing Hyperice IP Subco LLC (the defendant/patent owner) in PTAB case PGR2025-00013:

• Brian G. Arnold

  • Role: Associate General Counsel and Head of Intellectual Property
  • Firm: Hyperice
  • Office Location: While Hyperice's corporate location isn't specified, Brian Arnold's prior legal practice and recognition as a Super Lawyer for Intellectual Property Litigation are associated with the Los Angeles, California area.
  • Experience: Brian Arnold currently serves as in-house counsel for Hyperice. Before this, he was a patent litigation partner at several law firms, including Kirkland & Ellis LLP and Lewis Roca. He has been recognized as a Super Lawyer for his work in Intellectual Property Litigation.

• Kyle W. Kellar

  • Role: Counsel
  • Firm: Womble Bond Dickinson (US) LLP (formerly Lewis Roca Rothgerber Christie LLP)
  • Office Location: His professional admissions include the U.S. District Court, Central District of California.
  • Experience: Kyle Kellar possesses over a decade of experience in intellectual property law, including patent litigation and Inter Partes Review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB). He has successfully defended a patent in an IPR proceeding before the PTAB. He is confirmed as counsel for Patent Owner Hyperice IP Subco, LLC in PGR2025-00013.

• Kurt S. Prange

  • Role: Counsel
  • Firm: Womble Bond Dickinson (US) LLP (formerly Lewis Roca Rothgerber Christie LLP)
  • Office Location: His admissions include the U.S. District Court, Central District of California.
  • Experience: Kurt Prange is an intellectual property lawyer specializing in patents and trademarks. His experience includes patent and trademark prosecution before the U.S. Patent and Trademark Office (USPTO) and assisting with litigation research. He has helped clients increase and protect IP assets in various fields, including electronics, computers, and medical devices. He was previously identified alongside Kyle Kellar and Brian Arnold as representing Hyperice in a PTAB matter.

While other attorneys such as Lawrence LaPorte of Lewis Brisbois Bisgaard & Smith LLP and Ben Herbert of Miller Barondess, LLP have represented Hyperice in related district court patent infringement lawsuits, direct evidence of their appearance as counsel in the specific PTAB case PGR2025-00013 was not identified in the search results.