9878866 Canada v. Intake Breathing Technology — Court Grants Preliminary Injunction Against Amazon Knockoff of Magnetic Nasal Strip

Background

Intake Breathing Technology developed a magnetic nasal strip system consisting of a reusable magnetic nasal band and disposable adhesive refill tabs. The product—which uses magnets to dilate the nose and improve breathing—went viral on social media and is protected by U.S. Patent No. 9,510,969. Intake positions itself as the exclusive seller of a premium product and does not license the patent to third parties.

A Canadian company, 9878866 Canada Inc. (doing business as “Bash Stack”), began selling competing refill tabs on Amazon at $24.99—nearly 25% below Intake’s $32.99 price. The Bash Stack tabs were designed to be used with Intake’s magnetic nasal band but were sold without the band itself. Intake reported the product through Amazon’s Patent Evaluation Express (APEX) program. Rather than participate in APEX or resolve the dispute with Intake, Bash Stack filed a declaratory judgment action in D.C. federal court seeking a ruling of non-infringement and invalidity. Intake counterclaimed for patent infringement and moved for a preliminary injunction.

The Court’s Holding

Judge Walton granted the preliminary injunction after finding all four Winter factors favored Intake.

Likelihood of success on the merits: The court rejected Bash Stack’s infringement arguments on two fronts. First, Bash Stack argued its product does not include a magnetic nasal band and was never sold with one. The court found the patent claims describe the disposable apparatus itself—not the magnet—and that Bash Stack’s product is “configured for use” with a magnet. Bash Stack’s own marketing materials confirmed the product was designed for use with the Intake magnetic band. Second, Bash Stack challenged the claim term “adhesive disposed thereon,” but the court construed this as referring to the peel-off liner covering the adhesive layer and found the accused product clearly meets this limitation.

On validity, the court rejected both indefiniteness and obviousness challenges. The indefiniteness argument failed because all disputed claim terms had clear antecedent bases. The obviousness argument—based on combining two prior art references (the Macken anti-snoring neck device and the Riach magnetic nose pad for sinus therapy)—failed because the references “solve entirely different problems in entirely different ways,” and Bash Stack offered no persuasive explanation for why a skilled artisan would combine them.

Irreparable harm: The court found irreparable harm from direct competition on the same Amazon platform, reputational damage from negative reviews of the knockoff product that customers attributed to Intake’s technology, loss of goodwill during Intake’s early growth stage, and price erosion that undermined Intake’s subscription model.

Balance of equities and public interest: Both factors favored Intake as the patent holder, with the court noting that any losses Bash Stack suffers from the injunction would be protected by a security bond.

Key Takeaways

• Products designed to be “configured for use” with patented technology can infringe even when sold separately from the patented component—the court focused on the product’s intended and only purpose.
• Amazon’s APEX program featured prominently in the procedural history, showing how patent holders can use platform enforcement mechanisms as a first step before formal litigation.
• Preliminary injunctions remain available in patent cases where the patent holder can demonstrate direct competition, price erosion, and reputational harm—particularly when the accused infringer is competing on the same e-commerce platform.
• Obviousness challenges require more than identifying prior art with some overlapping features—a challenger must explain why a skilled artisan would combine references that address different problems.

Why It Matters

This case sits at the intersection of patent enforcement and e-commerce, addressing the increasingly common scenario where patent holders face knockoff products competing directly on Amazon. The ruling is significant for small and medium-sized companies that rely on patent protection to maintain their market position against lower-priced competitors. It demonstrates that courts will grant injunctive relief to protect nascent brands from price erosion and reputational damage caused by competing products on the same platform. For Amazon sellers and importers, the case is a warning that designing products to work with patented technology—even when the patented component is not included—can constitute infringement.