Hyper Ice v. Big 5 Corp.: Percussion Massager Patents Settled in 121 Days
Hyper Ice, Inc. and Hyperice IP Subco, LLC filed suit against sporting-goods retailer Big 5, Corp. in the Western District of Texas, asserting two patents covering percussion massage technology against competing massager products. The case resolved by voluntary dismissal with prejudice under Rule 41 after just 121 days — before Big 5 filed any responsive pleading — strongly suggesting a pre-litigation settlement.
Hyperice targets retail channel in percussion massager IP enforcement
On January 16, 2024, Hyper Ice, Inc. and its IP holding entity Hyperice IP Subco, LLC filed a patent infringement action against Big 5, Corp. in the Western District of Texas before Judge Orlando L. Garcia. The complaint asserted two patents — US11857482B1, a utility patent, and USD0886317S, a design patent — against three product lines sold by Big 5: the Aduro Sport Elite Percussion Massager, the HY-IMPACT Nano and Percussion Massagers, and the Renew Deep Tissue Percussion Massager.
The case closed on May 16, 2024 — just 121 days after filing — when Hyperice filed a Notice of Dismissal With Prejudice pursuant to Rule 41(a)(1)(A)(i). The filing expressly confirmed that the parties had reached a settlement and that Big 5 had not filed an answer, motion for summary judgment, or any other responsive pleading before the dismissal. Dismissal with prejudice means Hyperice cannot reassert the same claims against Big 5 on the same patents arising from this dispute.
A resolution in under four months, before any responsive pleading, is consistent with a swift commercial settlement rather than protracted litigation. The early stage at which the case closed suggests Big 5 may have negotiated a license, agreed to cease selling the accused products, or reached another commercial arrangement. The specific financial terms, any ongoing licensing obligations, and the scope of any covenant not to sue remain confidential and are not disclosed in the public record.
Filing to Voluntary dismissal in 121 days
121 days — faster than the median W.D. Texas patent case, resolved pre-answer
Dismissed with prejudice: what the Rule 41 settlement exit means
Rule 41(a)(1)(A)(i) dismissal with prejudice explained
A Rule 41(a)(1)(A)(i) notice of dismissal can be filed unilaterally by a plaintiff before the defendant serves an answer or a motion for summary judgment. Where — as here — the plaintiff specifies ‘with prejudice,’ the dismissal is a final adjudication on the merits of those claims. Hyperice confirmed Big 5 had filed no responsive pleading, satisfying the procedural prerequisite for this self-executing mechanism.
Plaintiff-initiated, pre-answerWith-prejudice bar shields Big 5 on these specific claims
Because dismissal was entered with prejudice, Hyperice is barred from re-filing the same infringement claims under US11857482B1 and USD0886317S against Big 5 for the same accused conduct. This provides Big 5 with a degree of finality. However, it does not preclude Hyperice from asserting different patents, or the same patents against different conduct or different products not covered by the settlement’s scope.
Claims barred — same conductSettlement preserves Hyperice’s broader enforcement programme
A with-prejudice dismissal initiated by the plaintiff typically signals that Hyperice received sufficient commercial consideration — whether a licence fee, a product withdrawal, or an ongoing royalty — to justify closing the case permanently against this defendant. Hyperice retains full freedom to enforce US11857482B1 and USD0886317S against other retailers or manufacturers selling competing percussion massager devices.
Enforcement programme intactRetail channel enforcement: a signal to competing massager distributors
Targeting a retailer rather than a manufacturer is a deliberate enforcement strategy — it disrupts the supply chain and creates commercial pressure on distributors. The rapid settlement by Big 5, before any responsive pleading, suggests the litigation risk was sufficient to compel resolution. Other retailers carrying competing percussion massager products should treat this outcome as a signal that Hyperice is actively policing its patent portfolio at the channel level.
Retail enforcement signalFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Hyper Ice, Inc. | Company | Percussion massager brand and IP holding entity — holders of US11857482B1 and USD0886317SSearch in Eureka ↗ |
| Co-Plaintiff | Hyperice IP Subco, LLC | Company | Search in Eureka ↗ |
| Defendant | Big 5, Corp. | Company | Big 5, Corp. — sporting goods retail chain selling accused percussion massager devicesSearch in Eureka ↗ |
| Plaintiff counsel | Benjamin Allen Herbert | Attorney | Counsel for Hyper Ice, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Michael Charles Smith | Attorney | Counsel for Hyper Ice, Inc.Search in Eureka ↗ |
| Plaintiff counsel | Paige Arnette Amstutz | Attorney | Counsel for Hyper Ice, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Miller Barondess, LLP | Law Firm | Representing Hyper Ice, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Scheef & Stone, LLP | Law Firm | Representing Hyper Ice, Inc.Search in Eureka ↗ |
| Plaintiff law firm | Scott, Douglass & McConnico LLP | Law Firm | Representing Hyper Ice, Inc.Search in Eureka ↗ |
| Defendant counsel | Bailey Benedict | Attorney | Counsel for Big 5, Corp.Search in Eureka ↗ |
| Defendant counsel | Eli Svetlov | Attorney | Counsel for Big 5, Corp.Search in Eureka ↗ |
| Defendant counsel | Neil J. McNabnay | Attorney | Counsel for Big 5, Corp.Search in Eureka ↗ |
| Defendant law firm | Fish & Richardson LLP | Law Firm | Representing Big 5, Corp.Search in Eureka ↗ |
| Presiding judge | Judge Orlando L. Garcia | Judge | Texas Western District CourtSearch in Eureka ↗ |
Official order — verbatim text
The verdict filing is a plaintiff-initiated notice rather than a court ruling on the merits. Hyperice expressly confirmed settlement and certified that Big 5 had filed no responsive pleading — a prerequisite for a unilateral Rule 41(a)(1)(A)(i) notice. The ‘with prejudice’ designation is significant: it reflects a negotiated finality rather than a simple procedural exit, suggesting both parties obtained sufficient certainty from the settlement to forgo any future litigation on these specific claims and accused products.
US11857482B1 & USD0886317S — Percussion Massager Utility and Design Patents
US11857482B1 is a US utility patent protecting the functional aspects of Hyperice’s percussion massage technology, filed under application number US17/681367. USD0886317S is a US design patent covering the ornamental appearance of a percussion massager, filed under US29/716546. Together, these patents create overlapping protection — the utility patent addresses how the device works, while the design patent addresses how it looks — a dual-layered strategy that significantly raises the barrier for competing products to design around either right independently.
The percussion massager market has grown substantially as consumer interest in recovery technology and sports wellness has expanded. Hyperice’s decision to assert both a utility and a design patent against retail-channel competitors suggests the company views its IP portfolio as a commercially strategic asset, not merely a defensive tool. For manufacturers and brands developing or white-labelling percussion therapy devices, US11857482B1 represents a meaningful freedom-to-operate risk, particularly for products with similar percussive mechanisms. USD0886317S adds an aesthetic dimension that can catch competitors even when internal mechanisms differ.
Should you run an FTO against US11857482B1 and USD0886317S?
Any company manufacturing, importing, distributing, or retailing handheld percussion massagers — including private-label and white-label products — should assess exposure to Hyper Ice’s patent portfolio before launch or before securing new retail placement. This case demonstrates that Hyperice is prepared to enforce both its utility and design patents against retail distributors, not just manufacturers. The three accused product families (Aduro, HY-IMPACT, Renew) span a range of price points, indicating broad enforcement intent across the percussion massager category.
PatSnap Eureka’s FTO Search Agent can map the claim scope of US11857482B1 against your product specifications and cross-reference USD0886317S against your device’s industrial design. Eureka surfaces related family members, identifies cited prior art that may support design-around strategies, and flags parallel prosecution history that affects claim interpretation. Running a targeted FTO now — before retailer negotiations or product commits — is significantly less costly than defending a W.D. Texas infringement action.
Run a freedom-to-operate analysis on US11857482B1 to assess your product’s exposure
Run FTO in Eureka →Similar patent cases in percussion massager and consumer wellness devices
Explore related percussion massager and wearable recovery device patent cases filed in W.D. Texas and comparable federal venues.
What this case signals for the percussion massager IP landscape
Hyperice’s swift retail-channel action and fast settlement reveals a deliberate IP enforcement posture in the consumer percussion massager market.
Retail-channel suits are an increasingly effective enforcement lever
By suing the retailer rather than the manufacturer, Hyperice created immediate commercial disruption without needing to engage a potentially better-resourced manufacturing defendant. The 121-day resolution suggests retailers are highly motivated to settle early, making this a replicable tactic for patent holders with strong design and utility coverage in consumer goods.
Paired utility and design patents strengthen negotiating position
Asserting both a utility patent (US11857482B1) and a design patent (USD0886317S) simultaneously raises the cost and complexity for a defendant. Design patents covering product aesthetics can be particularly compelling against retail defendants who cannot easily distinguish their infringing stock from compliant alternatives. This dual-assertion strategy is worth noting for any company developing percussion therapy or similar wearable recovery devices.
Hyper v Big — key questions answered
Hyper Ice, Inc. and Hyperice IP Subco, LLC asserted two patents: US11857482B1 (a utility patent covering percussion massage technology, application no. US17/681367) and USD0886317S (a design patent covering the ornamental appearance of a percussion massager, application no. US29/716546). The accused products were the Aduro Sport Elite Percussion Massager, the HY-IMPACT Nano and Percussion Massagers, and the Renew Deep Tissue Percussion Massager sold by Big 5.
The parties confirmed they reached a commercial settlement, and Hyperice elected to file a Notice of Dismissal With Prejudice under Rule 41(a)(1)(A)(i). Filing with prejudice — rather than without prejudice — is typical where a settlement includes a licence, product withdrawal, or payment, because it provides the defendant with finality: Hyperice cannot reassert the same claims arising from the same conduct against Big 5 in the future.
A 121-day resolution before any responsive pleading is consistent with a swift commercial negotiation rather than contested litigation. It suggests Big 5 had strong commercial motivation to settle early — likely to avoid further litigation costs, manage retail inventory risk, and eliminate injunction exposure. The timeline also suggests Hyperice may have entered the litigation with a defined commercial offer, enabling rapid resolution.
No. The dismissal was entered with prejudice, which constitutes a final adjudication on the merits of the claims asserted in this action. Hyperice is barred from re-filing the same claims under US11857482B1 and USD0886317S against Big 5 for the same accused conduct. However, Hyperice could potentially assert new patents, or pursue Big 5 for different products or conduct not covered by the settlement’s scope — details that are not disclosed in the public record.
This case signals that Hyperice is actively enforcing its percussion massager patent portfolio at the retail distribution level. Retailers carrying competing products — particularly those resembling Hyperice devices in function or appearance — face potential infringement exposure under both US11857482B1 and USD0886317S. The rapid settlement by Big 5 suggests the litigation risk was commercially significant. Other retailers should consider an FTO assessment before stocking competing percussion massager lines.
PatSnap Eureka searches patents and litigation data to answer instantly.