Hyper Ice v. Kohl’s: Hypervolt Massager Patents Stayed After 134 Days
Hyper Ice and its IP subsidiary sued Kohl’s in the Western District of Texas alleging infringement of three patents covering the Hypervolt percussion massager line. The case was stayed within 134 days, administratively closed pending outcomes in two California and one Michigan parallel actions involving the same patent family.
Hyper Ice builds a multi-front patent campaign around Hypervolt
Filed on January 16, 2024, in the Western District of Texas before Judge Orlando L. Garcia, this action saw Hyper Ice, Inc. and Hyperice IP Subco, LLC assert three patents — two design patents (USD956253S and USD886317S) and one utility patent (US11857482B1) — against retailer Kohl’s, Inc. The accused products include the Sharper Image Powerboost Deep Tissue Percussion Massager, alleged to infringe the Hypervolt product family covering Hypervolt, Hypervolt 2, Hypervolt 2 Pro, Hypervolt Go 2, and Hypervolt Plus.
The case did not reach a merits determination. On May 29, 2024 — just 134 days after filing — the parties filed a joint motion to stay, which Judge Garcia granted. The court administratively closed the action pending the resolution of three parallel cases: two in the Central District of California against Therabody, Inc. and MerchSource, LLC, and one in the Eastern District of Michigan against FKA Distributing Co., LLC. The stay is without prejudice to either party moving to lift it for good cause.
The rapid agreement to stay suggests Hyper Ice and Kohl’s recognised that the validity and enforceability of the asserted patents would be substantially shaped by the parallel proceedings. The absence of a contested motion practice in this docket — and the joint nature of the stay request — is consistent with a commercial arrangement between the parties, or at minimum a mutual interest in avoiding duplicative litigation costs. What remains unknown from the public record is whether any informal licensing discussions accompanied the stay agreement, and whether the Kohl’s action will ultimately be resolved by settlement once the California or Michigan cases conclude.
Filing to Case Stayed in 134 days
134 days — resolved to stay faster than median WDTX patent case
Case stayed: what the administrative closure means for both parties
Administrative closure via joint stay is not a dismissal
A court-ordered stay administratively closes the docket but does not terminate the action or adjudicate any claim. The case remains live and can be reopened by either party for good cause. Hyper Ice retains all asserted claims; Kohl’s faces no estoppel. The stay is expressly tied to the resolution of three parallel proceedings, meaning the litigation clock resumes once those cases conclude — by dismissal or final judgment.
No merits rulingHyper Ice preserves all claims while managing litigation spend
By agreeing to a stay rather than pressing forward, Hyper Ice avoids litigating the same patents on three separate fronts simultaneously. The California and Michigan cases — against Therabody, MerchSource, and FKA Distributing — will likely generate claim construction and validity rulings that strengthen or sharpen Hyper Ice’s position before the Kohl’s action resumes. No patent claims have been surrendered and no damages have been waived.
Claims preservedKohl’s buys time but the threat does not disappear
Kohl’s secured a temporary reprieve from active litigation, but the stay without prejudice means the infringement allegations remain intact. If the parallel cases affirm the validity of Hyper Ice’s patents, Kohl’s will likely face a reinvigorated claim with more favourable precedent for the plaintiff. The joint nature of the stay suggests Kohl’s may also be monitoring those outcomes before deciding whether to negotiate a licence or contest the claims on the merits.
Exposure persistsPercussion massager IP enforcement is widening across retail
This case is one of at least four concurrent Hyper Ice infringement actions targeting different distribution channels — branded competitors, mass-market distributors, and major retailers. That breadth suggests a coordinated enforcement strategy. Retailers carrying third-party percussion massager devices should note that the Sharper Image Powerboost device has been specifically identified in this complaint, raising the commercial risk profile for any private-label or white-label percussion massager products sold through US retail channels.
Retail patent riskFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Hyper Ice, Inc. | Company | Percussion massager brand and IP holding entity — holders of USD956253S, US11857482B1, USD886317SSearch in Eureka ↗ |
| Co-Plaintiff | Hyperice IP Subco, LLC | Company | Search in Eureka ↗ |
| Defendant | Kohl’s, Inc. | Company | National retail chain accused of selling Sharper Image-branded 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 | Mark D. Siegmund | Attorney | Counsel for Kohl’s, Inc.Search in Eureka ↗ |
| Defendant law firm | Cherry Johnson Siegmund James PLLC | Law Firm | Representing Kohl’s, Inc.Search in Eureka ↗ |
| Presiding judge | Judge Orlando L. Garcia | Judge | Texas Western District CourtSearch in Eureka ↗ |
Official order — verbatim text
The court’s order grants a joint stay rather than resolving any substantive claim. The phrasing — ‘STAYED in its entirety pending the latter of a dismissal of, or entry of final judgment’ — creates a conditional trigger tied specifically to all three parallel proceedings, not merely one. This construction means the stay cannot be lifted unilaterally by elapsed time; a formal disposition in each parallel case is required. Neither party has admitted liability, and no patent claim has been construed, invalidated, or enforced at this stage.
USD956253S, US11857482B1 & USD886317S — Hypervolt percussion massager patents
The asserted portfolio spans two distinct IP layers. USD956253S and USD886317S are design patents — filed under application numbers US29/744890 and US29/716546 respectively — protecting the ornamental appearance of Hypervolt percussion massager products. US11857482B1, filed under application number US17/681367, is a utility patent covering functional aspects of the percussive therapy device. Together, these three patents represent both the visual identity and mechanical innovation of the Hypervolt product line, creating overlapping barriers to competitive entry.
The simultaneous assertion of design and utility patents in the same action is strategically significant. A design patent infringement finding requires the ‘ordinary observer’ test — whether an ordinary purchaser would be deceived into thinking the accused product is the patented design — while the utility patent requires claim-by-claim analysis. For the percussion massager category, where product differentiation is heavily visual and tactile, design patent exposure is particularly acute. The Sharper Image Powerboost device’s naming in this complaint signals that retail private-label and white-label massager products face meaningful IP risk when they visually approximate the Hypervolt form factor.
Should you run an FTO against USD956253S, US11857482B1, and USD886317S?
Any company designing, sourcing, importing, or retailing percussion massager devices should treat this patent cluster as a live FTO priority. The Sharper Image Powerboost — a mass-market device sold through a major national retailer — has been explicitly identified as an accused product in active litigation. If your product shares visual characteristics with the Hypervolt line (cylindrical handle, modular head attachment, similar proportions), the design patents alone create substantial infringement exposure. The utility patent adds a functional dimension that requires independent claim mapping.
PatSnap Eureka’s FTO Search Agent can map your product’s feature set against the claim scope of US11857482B1 and the ornamental boundaries of USD956253S and USD886317S in minutes. Eureka surfaces related design and utility filings in the same family, identifies prosecution history that may narrow claim scope, and flags continuation applications that could extend the enforcement window. For procurement and product development teams moving quickly in the personal wellness device space, an Eureka FTO run before market entry is faster and more cost-effective than post-litigation exposure.
Run a freedom-to-operate analysis on USD0956253S to assess your product’s exposure
Run FTO in Eureka →Similar percussion massager and personal wellness device patent cases
Cases involving design and utility patent enforcement over percussion massagers and handheld wellness devices in US district courts, including WDTX and C.D. Cal.
What this case signals for the percussion massager IP landscape
Hyper Ice’s coordinated multi-district enforcement campaign signals aggressive protection of Hypervolt’s design and utility patent portfolio.
Multi-front enforcement is the playbook — monitor all four cases together
With simultaneous actions in WDTX, C.D. Cal. (×2), and E.D. Mich., Hyper Ice is using a hub-and-spoke litigation strategy. Outcomes in the California and Michigan cases will set the factual and legal context for this Kohl’s action. IP teams at competing brands and retailers should track all four dockets as a single enforcement event, not as isolated disputes.
Design patents plus utility patents: a layered enforcement risk for product teams
Hyper Ice asserts both design patents (USD956253S, USD886317S) and a utility patent (US11857482B1) simultaneously. This dual-layer strategy raises the cost and complexity of any invalidity defence. Product teams developing or sourcing percussion massager devices should conduct FTO analysis across both design and utility claim scopes — not just one or the other.
Hyper v Kohl’s — key questions answered
Hyper Ice asserted three patents: design patents USD956253S (application US29/744890) and USD886317S (application US29/716546), and utility patent US11857482B1 (application US17/681367). All three relate to the Hypervolt percussion massager product line. The accused product at Kohl’s was the Sharper Image Powerboost Deep Tissue Percussion Massager.
The parties filed a joint motion to stay, which Judge Orlando Garcia granted on May 29, 2024. The stay was conditioned on the resolution of three parallel Hyper Ice cases: two in the Central District of California (against Therabody and MerchSource) and one in the Eastern District of Michigan (against FKA Distributing). The stay is without prejudice, and the case remains live pending those outcomes.
No. Administrative closure via a court-ordered stay is not a dismissal. Hyper Ice retains all asserted patent claims against Kohl’s. The case can be reopened for good cause by either party once the parallel proceedings in California and Michigan are resolved by dismissal or final judgment. No merits ruling was issued.
Asserting design patents (USD956253S, USD886317S) alongside a utility patent (US11857482B1) creates a layered enforcement barrier. Design patents protect the ornamental appearance — evaluated under the ‘ordinary observer’ test — while the utility patent covers functional aspects. A defendant must design around both scopes simultaneously, raising the complexity and cost of any non-infringement or invalidity defence.
According to the stay order in this case, Hyper Ice filed at least three parallel actions involving the same patent family: Hyper Ice v. Therabody, Inc. (C.D. Cal., No. 8:24-cv-00390), Hyper Ice v. MerchSource, LLC (C.D. Cal., No. 8:24-cv-00410), and Hyper Ice v. FKA Distributing Co., LLC (E.D. Mich., No. 2:24-cv-10115). These parallel cases will likely determine the validity and enforceability parameters before the Kohl’s action resumes.
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