Tough Bags v. Surplus Link 1 — Design Patent Dismissed Without Prejudice in 76 Days
Tough Bags, LLC brought a design patent infringement action against Surplus Link 1, LLC and individual defendant Barry Dufault in the Eastern District of Texas, asserting USD872397S covering a 14-foot collar insulation vacuum bag. The case closed in just 76 days via voluntary dismissal without prejudice, with each party bearing its own costs.
Swift voluntary exit in an insulation vacuum bag design patent dispute
On November 16, 2023, Tough Bags, LLC filed a patent infringement action in the Eastern District of Texas against Surplus Link 1, LLC — operating under the trade names Ram Insulation, Inc., Ram Insulation Vacuum Bags, and Rhino Insulation Vacuum Bags — and individual defendant Barry Dufault (also known as Chris Dufault). The asserted patent is USD872397S, a design patent registered against US application 29/617587, protecting the ornamental appearance of a 14-foot collar insulation vacuum bag, specifically the FLEX BAG 14-FT COLLAR product.
The case was resolved on January 31, 2024 — just 76 days after filing — when Tough Bags filed a Notice of Voluntary Dismissal Without Prejudice. Chief Judge Amos L. Mazzant formally dismissed both defendants without prejudice and ordered that each party bear its own attorneys’ fees and costs. The without-prejudice designation is legally significant: it preserves Tough Bags’ ability to reinstate litigation against the same defendants on the same claims at a future date.
A 76-day lifecycle before any substantive court rulings suggests the parties likely reached an accommodation — whether a licensing arrangement, a cease-and-desist agreement, or a commercial settlement — though none of this is reflected in the public record. The without-prejudice dismissal keeps Tough Bags’ legal options open, which may itself function as a continuing deterrent. What drove the rapid resolution, and whether any commercial terms were exchanged, remains unknown from publicly available filings.
Filing to voluntary dismissal in 76 days
76 days — faster than the majority of patent infringement cases in E.D. Texas
Voluntary dismissal without prejudice — what the court order means for both parties
Voluntary dismissal: plaintiff pulls the case unilaterally
Under Federal Rule of Civil Procedure 41(a), a plaintiff may voluntarily dismiss an action without a court order if filed before the defendant serves an answer or motion for summary judgment. Here, Tough Bags filed a Notice of Voluntary Dismissal and the court gave effect to it by formal order. This mechanism is commonly used when parties reach an off-record resolution or when the plaintiff decides not to proceed for strategic reasons.
FRCP 41(a) voluntary dismissalWithout prejudice preserves Tough Bags’ right to refile
A dismissal without prejudice means the claims are not extinguished on the merits — Tough Bags can refile the same infringement claims against Surplus Link 1 and Barry Dufault in the future, subject to applicable statutes of limitations. This contrasts with a dismissal with prejudice, which would bar refiling permanently. The public record in this case does not disclose whether any settlement or licensing terms were agreed between the parties.
Refiling rights preservedEach party bears its own fees — no prevailing party designation
The court’s order specifies that each party bears its own fees and costs. In patent litigation, fee-shifting under 35 U.S.C. § 285 requires a finding that the case is ‘exceptional.’ No such finding was made here. The symmetrical cost allocation is consistent with a negotiated resolution or an early-stage withdrawal before significant litigation costs had accumulated on either side.
No § 285 fee awardBarry Dufault named personally alongside the LLC
The inclusion of Barry Dufault (a/k/a Chris Dufault) as an individual defendant alongside Surplus Link 1, LLC is notable. In design patent cases, plaintiffs sometimes name individuals when there is an allegation of direct personal involvement in infringing activity or to discourage corporate restructuring as a litigation-avoidance tactic. Both the entity and the individual were dismissed under the same without-prejudice order.
Individual + entity defendantsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Tough Bags, LLC | Company | Insulation packaging IP holder — asserting design patent USD872397S over vacuum bag form factorSearch in Eureka ↗ |
| Defendant | Surplus Link 1, LLC | Company | Surplus Link 1, LLC, d/b/a Ram and Rhino Insulation Vacuum Bags, and individual Barry DufaultSearch in Eureka ↗ |
| Plaintiff counsel | Wendy B. Mills | Attorney | Counsel for Tough Bags, LLCSearch in Eureka ↗ |
| Defendant counsel | Casey L. Griffith | Attorney | Counsel for Surplus Link 1, LLCSearch in Eureka ↗ |
| Presiding judge | Judge Amos L. Mazzant | Chief Judge | Texas Eastern District Court — Chief JudgeSearch in Eureka ↗ |
Stipulation of dismissal — official text
The court’s order gives full effect to Tough Bags’ voluntary notice, dismissing both Surplus Link 1, LLC and Barry Dufault without prejudice. The phrasing ‘with each party to bear its own fees and costs’ forecloses any post-dismissal fee motion under § 285. Critically, the without-prejudice designation means no merits ruling was made — the defendants’ alleged infringement was neither confirmed nor denied, and Tough Bags retains its full cause of action for future enforcement.
USD872397S — Ornamental design for a 14-foot collar insulation vacuum bag
USD872397S is a United States design patent — filed under application number 29/617587 — protecting the ornamental appearance of a 14-foot collar insulation vacuum bag, commercially identified as the FLEX BAG 14-FT COLLAR. Design patents protect how a product looks, not how it functions, making visual similarity to the patented design the central infringement question. The 29/XXXXXX application series designates a design patent application at the USPTO, and the D-prefix registration confirms grant. The product sits in the specialist insulation installation equipment market, where vacuum bag systems are used to compress and manoeuvre blown insulation materials.
For competitors in the insulation accessories and packaging sector, USD872397S creates a clear risk zone around bag collar designs that share ornamental similarity with the FLEX BAG 14-FT COLLAR. Design patents in commodity equipment categories are sometimes underestimated, but enforcement actions like this one confirm that holders are willing to litigate. The rapid resolution of this case suggests the patent’s deterrent effect may extend beyond the named defendants — distributors and OEM suppliers of visually comparable products should assess their exposure proactively.
Should your insulation vacuum bag products be cleared against USD872397S?
If your company manufactures, imports, or distributes insulation vacuum bags — particularly collar-style or large-format compression bags — USD872397S is a design patent that warrants a freedom-to-operate review. The infringement standard for design patents is the ‘ordinary observer’ test: would an ordinary consumer mistake the accused product for the patented design? This is a visual analysis, and minor structural differences do not automatically defeat a claim. Distributors carrying third-party brands under multiple trade names face particular exposure.
PatSnap Eureka’s FTO Search Agent can map the visual and claim scope of USD872397S against your product’s design, flag related design patent families and continuations, and monitor for new filings by Tough Bags LLC in the same product category. Claim monitoring on this patent number will alert your team if the IP position changes — whether through continuation applications, inter partes review filings, or new enforcement actions — giving you early warning before litigation risk materialises.
Run a freedom-to-operate analysis on USD0872397S to assess your product’s exposure
Run FTO in Eureka →Similar design patent infringement cases in packaging and insulation products
PatSnap Eureka tracks related litigation across truck body equipment, vehicle accessories, and comparable infringement actions in the Georgia district system.
What this case signals for the packaging and insulation products IP landscape
Design patent enforcement in specialty packaging is active and can reach resolution quickly — here is what competitors and product teams should take away.
Design patents are live enforcement tools in commodity packaging markets
USD872397S shows that ornamental design protection is being actively asserted in the insulation vacuum bag segment. Companies competing in specialty packaging — particularly those offering products visually similar to incumbents — should treat design patents as a real commercial risk, not just a registration formality. A design patent infringement claim can be filed quickly and resolved quickly, as this case demonstrates.
A 76-day lifecycle often signals off-record settlement or compliance
Cases that close this fast in E.D. Texas — before any substantive rulings — typically reflect a private accommodation rather than a plaintiff abandoning its position. The without-prejudice structure preserves litigation leverage. Defendants who settle under these terms may be operating under undisclosed licensing or non-compete terms that constrain their future product activity.
Tough v Surplus — key questions answered
Tough Bags, LLC filed a design patent infringement action against Surplus Link 1, LLC and Barry Dufault in the Eastern District of Texas on November 16, 2023, asserting USD872397S. The case was voluntarily dismissed without prejudice on January 31, 2024 — 76 days after filing — with each party bearing its own costs. No merits ruling was issued.
A dismissal without prejudice means the plaintiff’s claims are not resolved on the merits and the plaintiff retains the right to refile the same claims against the same defendants in the future, subject to applicable statutes of limitations. It contrasts with dismissal with prejudice, which permanently bars refiling. In patent cases, it often signals an off-record resolution rather than an abandonment of the underlying IP position.
USD872397S, filed under US application 29/617587, protects the ornamental design of a 14-foot collar insulation vacuum bag — commercially marketed as the FLEX BAG 14-FT COLLAR by Tough Bags, LLC. Design patents cover appearance rather than function, so infringement analysis centres on visual similarity under the ordinary observer test.
Barry Dufault (a/k/a Chris Dufault) was named alongside Surplus Link 1, LLC as an individual defendant. In patent infringement cases, plaintiffs sometimes name individuals when they allege direct personal participation in infringing conduct, or to deter corporate restructuring as a tactic to avoid liability. Both defendants were dismissed under the same without-prejudice order.
The case was filed in the United States District Court for the Eastern District of Texas, Case No. 4:23-cv-01023, before Chief Judge Amos L. Mazzant. The Eastern District of Texas is a historically popular venue for patent plaintiffs due to its procedural norms and case management timelines.
PatSnap Eureka searches patents and litigation data to answer instantly.