Roar Athletic Performance Corp v. Masciowsky SRL

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ROAR ATHLETIC PERFORMANCE CORP. d/b/a VKTRY (Delaware)
  • Defendant: MASCIOWSKY S.R.L. d/b/a TEAMDVNK (Italy)
  • Plaintiff's Counsel: McCarter & English LLP
• Case Identification: 3:26-cv-01011, D. Conn., 06/24/2026
• Venue Allegations: Venue is alleged to be proper in the District of Connecticut because a substantial part of the events giving rise to the claims occurred there and/or the defendant is subject to the court's personal jurisdiction.
• Core Dispute: Plaintiff alleges that Defendant's carbon fiber insoles infringe a patent related to foot orthotics designed to increase athletic propulsion, and further alleges widespread copyright and trade dress infringement based on Defendant's marketing and packaging.
• Technical Context: The dispute centers on performance-enhancing athletic insoles, specifically those using carbon fiber to create a spring-like effect to store and return energy during movement.
• Key Procedural History: The complaint alleges that Plaintiff marks its product packaging with the patent number, and that it notified Defendant of the infringing activity prior to the lawsuit, which Defendant allegedly continued.

Case Timeline

Date	Event
2012-08-28	U.S. Patent No. 9,131,746 Priority Date
2015-09-15	U.S. Patent No. 9,131,746 Issued
2016-07-01	Plaintiff claims first use in commerce for VKTRY mark
2026-06-24	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,131,746 - "Foot Orthotic"

(Issued September 15, 2015; referred to as the "'746 Patent")

The Invention Explained

• Problem Addressed: The patent's background section states that while foot orthotics existed for support, pressure distribution, and cushioning, there were no known orthotics specifically designed to increase propulsion for athletes or in everyday life ʻ746 Patent, col. 1:19-24
• The Patented Solution: The invention is a foot orthotic made from a flexible material, such as pre-impregnated carbon fiber, that is "structurally formed" to function as a spring ʻ746 Patent, abstract ʻ746 Patent, col. 5:47-52 Unlike conventional insoles that conform to the foot's shape, this design is shaped so that on a flat surface, only the toe and heel regions make contact, leaving the arch suspended ʻ746 Patent, col. 5:48-52 This geometry is intended to pre-load the orthotic, allowing it to store potential energy when the user's weight is applied and release it during toe-off, thereby amplifying "push-off" and propelling the user forward ʻ746 Patent, col. 2:23-28
• Technical Importance: The design represents a conceptual shift from passive foot support to an active energy-return system intended to enhance performance metrics like speed and jump height ʻ746 Patent, col. 2:29-36

Key Claims at a Glance

• The complaint asserts infringement of at least Claim 1 Compl. ¶16
• The essential elements of independent Claim 1 are:
  • A flexible element consisting of a sheet of material of substantially uniform thickness.
  • The sheet defines a toe region, a heel region, and a longitudinal arch pad region.
  • The sheet is structurally formed so that only the toe and heel regions contact a ground surface plane, with the longitudinal arch pad spaced above it.
  • The flexible element is fabricated from a flexible material that includes pre-impregnated carbon fibers.
  • The pre-impregnated fibers are unidirectionally aligned.
• The complaint reserves the right to assert other claims Compl. ¶16

III. The Accused Instrumentality

Product Identification

The "DVNK Ultra, Premium, Aura, and Kevlar insoles" (the "Infringing Products") Compl. ¶15

Functionality and Market Context

The complaint describes the accused products as carbon fiber insoles sold and offered for sale in the United States Compl. ¶1 Compl. ¶15 The core allegation is that these products possess the "patented construction" of the '746 Patent Compl. ¶16 The complaint extensively documents alleged copying of Plaintiff's marketing, packaging, and branding, including the use of similar product names ("Gold" and "Silver"), video formats, and website design Compl. ¶¶18-35 This suggests the accused products are positioned as direct competitors to Plaintiff's VKTRY insoles, aiming to capture the same market for performance-enhancing orthotics Compl. ¶37 A side-by-side image provided in the complaint contrasts the website homepages of ROAR and DVNK, alleging similarity in layout and messaging Compl. ¶31

IV. Analysis of Infringement Allegations

The complaint alleges that Defendant's sale of the Infringing Products directly infringes at least Claim 1 of the '746 Patent Compl. ¶16 It references an exemplary claim chart in Exhibit C, which was not provided with the complaint document. The infringement theory is based on the allegation that the accused insoles embody the "patented construction" Compl. ¶16

'746 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
a flexible element consisting of a sheet of material of substantially uniform thickness,	The complaint alleges the accused insoles have the "patented construction," which includes this element Compl. ¶16	¶16	col. 5:41-42
the sheet of material defining a toe region, a heel region and a longitudinal arch pad region that extends from the toe region to the heel region,	The complaint alleges the accused insoles have the "patented construction," which includes this element Compl. ¶16	¶16	col. 5:43-46
the sheet of material being structurally formed such that (i) only the toe region and the heel region contact a ground surface plane, and (ii) the longitudinal arch pad is spaced above the ground surface plane;	The complaint alleges the accused insoles have the "patented construction," which includes this element Compl. ¶16 A side-by-side image from an allegedly copied video shows the accused insole being flexed by hand Compl. ¶26	¶16; ¶26	col. 5:47-52
wherein the flexible element is fabricated from a flexible material that includes pre-impregnated carbon fibers; and	The complaint identifies the accused products as "carbon fiber insoles" Compl. ¶18 A side-by-side image of product packaging alleges copying of an exterior "carbon-fiber pattern" Compl. ¶28	¶18; ¶28	col. 5:53-55
wherein the pre-impregnated fibers are unidirectionally aligned.	The complaint alleges the accused insoles have the "patented construction," which includes this element Compl. ¶16	¶16	col. 5:57-58

• Identified Points of Contention:
  • Scope Questions: A central question may be the interpretation of "substantially uniform thickness." The patent itself describes different thicknesses for different sized orthotics ʻ746 Patent, col. 8:18-53, which could complicate the definition of "substantially uniform" and open avenues for a non-infringement argument if the accused products feature intentionally varied thicknesses.
  • Technical Questions: The complaint's infringement allegations are based on the products having the "patented construction" but do not provide specific technical evidence (e.g., measurements, scans) to demonstrate that the accused insoles are "structurally formed" such that only the toe and heel regions contact a flat surface. The case may turn on whether discovery reveals a technical match for this key functional limitation or a mismatch.

V. Key Claim Terms for Construction

• The Term: "structurally formed such that (i) only the toe region and the heel region contact a ground surface plane, and (ii) the longitudinal arch pad is spaced above the ground surface plane"

  • Context and Importance: This limitation defines the unique, non-intuitive shape that allegedly enables the orthotic's propulsive spring function. It is the primary feature distinguishing the invention from conventional, contour-following insoles. The entire infringement case may depend on whether the accused products meet this specific geometric and functional definition.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party might argue that the term should be interpreted functionally, covering any carbon fiber insole shaped to create a propulsive "spring effect" ʻ746 Patent, col. 2:15-16, even if parts other than the absolute toe and heel make slight contact with a ground plane.
    • Evidence for a Narrower Interpretation: A party would likely argue for a literal interpretation, emphasizing the word "only." The patent specification and figures consistently depict an exaggerated curve where the arch is clearly and significantly elevated off a flat plane, supporting a strict reading of this geometric constraint ʻ746 Patent, FIG. 1 ʻ746 Patent, FIG. 7 ʻ746 Patent, col. 8:65-68

• The Term: "substantially uniform thickness"

  • Context and Importance: Practitioners may focus on this term because it is a term of degree that could provide a basis for a non-infringement defense. If the accused products are found to have intentionally non-uniform thicknesses for structural reasons, they might fall outside the literal scope of the claim.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: Plaintiff could argue the term accommodates minor variations inherent in manufacturing or slight tapering, pointing to the specification's own disclosure of different thickness profiles for different product sizes as evidence that absolute uniformity was not required ʻ746 Patent, col. 8:18-53
    • Evidence for a Narrower Interpretation: Defendant could argue that the term imposes a strict limit, and that the patentee chose to claim "substantially uniform" rather than "variable" thickness. Any significant, deliberate variation in thickness could be argued to place the product outside the claim's scope.

VI. Other Allegations

• Indirect Infringement: The complaint's patent count focuses on direct infringement by "selling and/or offering for sale" Compl. ¶40 It does not contain specific factual allegations to support claims of induced or contributory infringement.
• Willful Infringement: The complaint alleges that "ROAR has notified DVNK about its infringing activity, and DVNK has continued to engage in such infringing activity notwithstanding such notice from ROAR" Compl. ¶42 This allegation of continued infringement after receiving notice serves as the basis for the claim of willful and wanton infringement Compl. ¶44

VII. Analyst's Conclusion: Key Questions for the Case

• A core issue will be one of definitional scope: can the claim limitation "structurally formed such that... only the toe region and the heel region contact a ground surface plane" be construed to read on the accused DVNK insoles? The resolution of this question will depend on evidence regarding the actual physical shape of the accused products.
• A second key question will be evidentiary: beyond the extensive allegations of marketing and trade dress copying, what technical proof will emerge during discovery to establish that the accused carbon fiber insoles possess the specific material and structural properties required by Claim 1, such as "substantially uniform thickness" and "unidirectionally aligned" fibers?
• Finally, the case presents a question of causation and damages: given the complaint's heavy emphasis on alleged copying of non-patented elements like marketing videos, packaging, and branding, a central challenge will be to disentangle the harm and damages attributable specifically to the alleged patent infringement from those attributable to the separate claims of copyright and trade dress infringement.