Dental Choice Holdings v. New Age Performance — Dismissed Without Prejudice
Dental Choice Holdings, LLC asserted US9022903B2 — a patent covering performance mouthpiece technology — against New Age Performance’s AIRWAAV product line, including products sold via Amazon. The case was voluntarily dismissed without prejudice after 168 days, before any answer or summary judgment motion was filed.
Swift voluntary exit in a performance mouthpiece patent dispute
On September 5, 2023, Dental Choice Holdings, LLC filed a patent infringement action against New Age Performance, Inc. in the U.S. District Court for the Western District of Kentucky (Case No. 3:23-cv-00458). The suit alleged infringement of US9022903B2, a patent directed at performance mouthpiece technology. The accused products were New Age Performance’s AIRWAAV ENDURANCE, AIRWAAV HIIT, and related variants sold on Amazon.com under multiple ASINs.
On February 20, 2024 — just 168 days after filing — Dental Choice Holdings filed a notice of voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(i). Because the defendant had not yet filed an answer or motion for summary judgment, the plaintiff was entitled to dismiss as of right, without court approval. The court formally ordered the dismissal, denied the pending preliminary injunction motion and motion to quash summons as moot, and struck the case from its active docket.
The 168-day lifespan suggests the parties may have reached a private resolution, or that Dental Choice Holdings reassessed its litigation strategy — though the public record is silent on the underlying rationale. Critically, dismissal without prejudice preserves Dental Choice’s right to refile, meaning the IP dispute over the AIRWAAV product line is not necessarily resolved. The absence of any answer from New Age Performance indicates the dispute never reached merits-stage briefing.
Filing to resolution in 168 days
168 days — resolved faster than most district court patent cases, which typically run 2–3 years
Voluntarily dismissed without prejudice under FRCP 41(a)(1)(A)(i)
FRCP 41(a)(1)(A)(i) — dismissal as of right
Federal Rule of Civil Procedure 41(a)(1)(A)(i) allows a plaintiff to dismiss an action without a court order at any time before the opposing party serves an answer or a motion for summary judgment. Because New Age Performance had not yet filed either, Dental Choice Holdings could — and did — exit the case unilaterally. No judicial approval was required, making this one of the cleanest procedural exits available in federal litigation.
Plaintiff-initiated exitWithout prejudice — refiling remains an open option
A dismissal without prejudice does not bar the plaintiff from reasserting the same patent claims against the same defendant in a future action. This contrasts with a dismissal with prejudice, which operates as a final adjudication on the merits. The public record here is silent on whether any settlement, licensing arrangement, or other agreement accompanied the dismissal — meaning the strategic reason for exit is unknown, and the dispute could re-emerge.
Refiling not barredPreliminary injunction and motion to quash denied as moot
At the time of dismissal, two motions remained pending: a motion for preliminary injunction (D.N. 8) filed by Dental Choice Holdings, and a motion to quash summons (D.N. 15) filed by New Age Performance. Both were denied without prejudice as moot following the dismissal. The preliminary injunction motion suggests Dental Choice viewed the alleged infringement as causing ongoing, immediate harm — consistent with a competitive product still being actively sold on Amazon.
No injunctive relief grantedAmazon ASIN targeting signals e-commerce enforcement strategy
The complaint specifically identified multiple Amazon ASINs associated with the AIRWAAV product line. This level of specificity is consistent with an IP enforcement strategy designed to support Amazon’s notice-and-takedown procedures, where ASIN-level identification can form the basis for parallel removal requests. The litigation may therefore have operated alongside — or been superseded by — platform-level enforcement actions, which would not appear in the court record.
Amazon enforcement angleFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Dental Choice Holdings, LLC | Company | Performance mouthpiece IP holder — asserting US9022903B2 against athletic mouthpiece productsSearch in Eureka ↗ |
| Defendant | New Age Performance, Inc. | Company | New Age Performance, Inc. — maker of AIRWAAV athletic performance mouthpiece productsSearch in Eureka ↗ |
| Plaintiff counsel | Jaci Overmann | Attorney | Counsel for Dental Choice Holdings, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Mark D. Schneider | Attorney | Counsel for Dental Choice Holdings, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Philip E. Cecil | Attorney | Counsel for Dental Choice Holdings, LLCSearch in Eureka ↗ |
| Plaintiff counsel | R.J. Cronkhite | Attorney | Counsel for Dental Choice Holdings, LLCSearch in Eureka ↗ |
| Defendant counsel | Kevin T. Duncan | Attorney | Counsel for New Age Performance, Inc.Search in Eureka ↗ |
| Presiding judge | Judge / | Chief Judge | Kentucky Western District Court — Chief JudgeSearch in Eureka ↗ |
Stipulation of dismissal — official text
The court’s order confirms dismissal was effected entirely by operation of FRCP 41(a)(1)(A)(i) — a rule that requires no judicial merits assessment. The denial of both the preliminary injunction and the motion to quash ‘without prejudice as moot’ means neither motion produced any binding legal ruling. For New Age Performance, the outcome offers no precedential protection; for Dental Choice Holdings, all claims remain legally intact and refiling is unrestricted.
US9022903B2 — Performance Mouthpiece and Airway Device Patent
US9022903B2 (application number US13/046039) is a U.S. utility patent covering a performance mouthpiece device in the athletic and dental technology space. Performance mouthpiece patents in this category typically protect the geometry, material composition, or functional mechanism by which an oral device modifies airway positioning or jaw alignment to improve athletic output. The patent was asserted against AIRWAAV’s full commercial product line — ENDURANCE, HIIT, and DBE variants — indicating broad claim scope potentially covering a product family rather than a single SKU.
In the consumer sports and wellness market, mouthpiece technology patents have become strategically significant as performance-focused oral devices move from niche to mainstream athletic use. A single foundational patent like US9022903B2, if its claims are broad enough to cover the jaw positioning or airway mechanics used across a product line, represents meaningful leverage against direct competitors. Any company developing or commercialising bite-and-breathe performance devices, mandibular advancement products, or athletic mouthguards with airway claims should treat this patent as a priority monitoring target.
Should your product team run an FTO against US9022903B2?
Any R&D team developing performance mouthpieces, athletic airway devices, or mandibular positioning products should assess freedom to operate against US9022903B2. This patent has already been asserted against a commercialised product line spanning multiple SKUs and Amazon listings — suggesting the patent holder is willing to pursue enforcement. The voluntary dismissal does not signal that claims are weak; it may simply reflect a privately negotiated resolution that leaves the patent fully intact.
PatSnap Eureka’s FTO Search Agent can map your product’s technical features against the claim language of US9022903B2, flag overlapping claim elements, and surface related patent families that may present additional risk. Setting up ongoing claim monitoring against this patent and its continuation applications is advisable — particularly if you sell or plan to sell performance mouthpiece products via Amazon, where parallel IP enforcement can operate faster than court timelines.
Run a freedom-to-operate analysis on US9022903B2 to assess your product’s exposure
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What this case signals for the performance mouthpiece IP landscape
A fast voluntary exit preserving refiling rights suggests unresolved tension — not a clean settlement — in the performance mouthpiece patent space.
US9022903B2 remains an active enforcement asset — watch for refiling
Dismissal without prejudice means Dental Choice Holdings retains full rights to refile against New Age Performance or any other party. Companies competing in the performance mouthpiece or athletic airway device space should treat this patent as a continuing threat, not a resolved dispute. A fresh FTO analysis against this patent is advisable for any product in this category.
Amazon ASIN specificity points to a parallel enforcement playbook
The explicit listing of Amazon ASINs in the complaint is a tactical signal: plaintiffs in consumer product IP cases increasingly combine court filings with platform enforcement. Even if the litigation was withdrawn, parallel Amazon IP complaint mechanisms may have continued independently. Defendants on Amazon should monitor brand registry and IP complaint channels separately from court dockets.
Dental v New — key questions answered
Dental Choice Holdings, LLC sued New Age Performance, Inc. in the Western District of Kentucky, alleging infringement of US9022903B2 — a performance mouthpiece patent. The accused products were the AIRWAAV ENDURANCE and HIIT mouthpiece lines sold on Amazon. The case was voluntarily dismissed without prejudice after 168 days under FRCP 41(a)(1)(A)(i).
Dismissal without prejudice means Dental Choice Holdings retains the right to refile the same patent infringement claims against New Age Performance in the future. No merits ruling was made. The court denied the pending preliminary injunction and motion to quash summons as moot. The underlying IP dispute over the AIRWAAV product line may not be fully resolved.
Dental Choice Holdings asserted US9022903B2 (application number US13/046039), a U.S. utility patent in the performance mouthpiece and athletic airway device space. The patent was asserted against multiple AIRWAAV product variants, including AIRWAAV ENDURANCE, AIRWAAV HIIT, and their DBE variants, sold on Amazon.com under several ASINs.
Dental Choice Holdings filed a motion for preliminary injunction (D.N. 8), which typically signals that the plaintiff believes it faces ongoing, irreparable harm from the accused products remaining on the market. The motion was denied without prejudice as moot when the case was voluntarily dismissed, so no ruling on its merits was ever issued.
FRCP 41(a)(1)(A)(i) allows a plaintiff to voluntarily dismiss an action without court approval, provided the defendant has not yet served an answer or a motion for summary judgment. In this case, New Age Performance had not filed either, so Dental Choice Holdings was entitled to dismiss as of right. The court confirmed the dismissal by court order and struck the case from its active docket.
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