Case Overview

In a swift resolution lasting just 69 days, **New Age Performance, Inc. v. Diversified Product Solutions, LLC** (Case No. 4:24-cv-00710) concluded with a voluntary dismissal without prejudice before California’s Northern District Court. Filed on February 6, 2024, and closed by April 15, 2024, the case centered on alleged infringement of patents covering the **NAP 6DS Mouthpiece Product** — a specialized performance equipment accessory straddling both utility and design patent protections.

While no judicial ruling on the merits was issued, the case’s rapid lifecycle offers meaningful signals for patent practitioners and IP strategists. Voluntary dismissals without prejudice in patent infringement actions — particularly those involving both utility and design patents — frequently reflect behind-the-scenes settlement negotiations, litigation cost-benefit recalibrations, or strategic repositioning ahead of a potential refiling. For patent attorneys, IP managers, and R&D teams operating in the sports performance and consumer product space, this outcome merits careful examination.

The Parties

Patents at Issue

This case involved two patents covering both functional and ornamental aspects of the mouthpiece technology, demonstrating a layered IP portfolio strategy common among consumer product innovators.

• • US9022903B2 — A utility patent covering functional aspects of the mouthpiece technology, including structural or performance-enhancing innovations.
• • USD0743109S — A design patent protecting the ornamental appearance of the mouthpiece product.

Legal Representation

Plaintiff’s Counsel: Igor Shoiket, Kevin T. Duncan, and Michael E. Dergosits of Dergosits & Noah LLP and Duncan Galloway Greenwald, PLLC — firms with established IP litigation practices.

Defendant’s Counsel: Kenneth Jude Dyer of Workman Nydegger — a firm with a recognized intellectual property focus.

The Verdict & Legal Analysis

Outcome

On **April 15, 2024**, New Age Performance, Inc. filed a **Notice of Voluntary Dismissal Without Prejudice** pursuant to **Federal Rule of Civil Procedure Rule 41(a)(1)(A)(i)**. The case was dismissed against Diversified Product Solutions, LLC without any judicial ruling on the merits, without disclosed damages, and without injunctive relief.

A dismissal under Rule 41(a)(1)(A)(i) is a plaintiff-initiated dismissal filed before the defendant serves an answer or motion for summary judgment. This procedural posture is significant: it means the dismissal required no court approval and left no adverse judgment against either party.

Verdict Cause Analysis

The case was initiated as a straightforward **patent infringement action**. However, because dismissal occurred before substantive litigation milestones, no judicial findings were made regarding patent validity, infringement of any specific claims, claim construction of disputed terms, or damages calculations. The absence of a merits ruling means this case sets no binding precedent on the underlying technology or patent scope.

Legal Significance

The “without prejudice” designation is particularly notable. Unlike a dismissal with prejudice — which bars re-litigation — a **without-prejudice dismissal preserves the plaintiff’s right to refile**. This creates several possible interpretations: settlement reached privately, strategic reassessment of claim construction vulnerabilities, or preservation of refiling leverage tied to ongoing licensing discussions.

For design patent cases specifically — involving USD0743109S — the **”ordinary observer” test** under *Egyptian Goddess, Inc. v. Swisa, Inc.* (Fed. Cir. 2008) governs infringement analysis. Early dismissal may reflect difficulty in demonstrating that an ordinary observer would mistake the defendant’s product for the patented design.