Performance Solutions LLC v. Chirp Innovation LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Performance Solutions, LLC (Massachusetts)
  • Defendant: Chirp Innovation, LLC (Delaware)
  • Plaintiff's Counsel: Young Conaway Stargatt & Taylor, LLP
• Case Identification: 1:26-cv-00989, D. Del., 08/06/2026
• Venue Allegations: Venue is alleged to be proper in the District of Delaware because the Defendant is a Delaware corporation and therefore a resident of the District.
• Core Dispute: Plaintiff alleges that Defendant's "Wheel+", "Wheel XR", "Wheel XL", and "Wheel Pro" lines of projection-based foam rollers infringe six U.S. patents related to an integrated core-overlay-projection architecture for therapeutic devices.
• Technical Context: The technology involves therapeutic foam rollers with raised projections designed to extend into a user's soft tissue to provide targeted muscle release and other therapeutic benefits, an improvement over conventional smooth-surfaced rollers.
• Key Procedural History: The complaint alleges a significant history of enforcement and validation of the asserted patent rights. Four of the six asserted patents ('167, '112, '890, '260) have reportedly survived ex parte reexaminations where the U.S. Patent and Trademark Office's Patent Trial and Appeal Board (PTAB) confirmed the patentability of all 107 challenged claims. The Plaintiff also cites a recent successful litigation against a third party, PowX Inc., involving four of the same patents and similar technology, which resulted in a final judgment of willful infringement, trebled damages, and an award of over $1.79 million. The complaint further alleges that the Defendant, Chirp, was on notice of the patents through multiple avenues, including marketplace competition with marked products and a USPTO action on its own design patent application.

Case Timeline

Date	Event
2006-07-18	Earliest Priority Date for all Asserted Patents
2014-03-03	Plaintiff licenses Venture Products
2014-08-06	Entity that became Chirp is formed
2015-08-05	Chirp entity renamed Plexus Yoga, LLC
2017-01-10	U.S. Patent No. 9,539,167 Issues
2017-05-01	Plaintiff licenses Implus Footcare, LLC
2017-05-23	U.S. Patent No. 9,656,112 Issues
2018-01-25	Plaintiff licenses 321 Strong
2019-05-07	U.S. Patent No. 10,278,890 Issues
2019-08-01	Chirp retains MAG Elite/My Amazon Guy (approx.)
2019-10-01	Consent Judgment entered against Chirp in Neck Hammock case
2019-11-07	Chirp posts YouTube video comparing its product to a licensed, marked product
2020-06-30	U.S. Patent No. 10,695,260 Issues
2020-11-23	Reexaminations filed against four of the Asserted Patents begin
2021-11-09	Chirp Wheel+ products sold in Amazon's "Foam Rollers" category (no later than)
2021-11-17	Chirp introduces the Wheel+ 4" product
2022-01-10	Chirp introduces the Wheel Pro product
2022-11-22	Chirp introduces the Wheel XL product
2023-08-03	Chirp introduces the Wheel XR product line
2024-05-20	Plaintiff licenses MaiBo (Shenzhen) Technology Co., Ltd.
2024-06-17	Plaintiff licenses Zmarthumb International Limited
2024-07-30	Defendant files its own "Massage Device" design patent application
2024-10-02	Plaintiff licenses Oceanfoam, LLC
2024-10-23	Plaintiff licenses Shenzhen Shi Ouruiyu Technology Co. Ltd.
2025-01-14	U.S. Patent No. 12,193,986 Issues
2025-01-21	U.S. Patent No. 12,201,571 Issues
2025-03-11	USPTO examiner's search report identifies '167 Patent as relevant to Chirp's application
2025-08-21	USPTO examiner's search report again identifies '167 Patent
2026-08-06	Complaint Filed

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

U.S. Patent No. 9,539,167 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 9,539,167, "Therapeutic, Fitness, and Sports Enhancement Device," issued January 10, 2017 (the "'167 Patent"). Compl. ¶21

The Invention Explained

• Problem Addressed: The patent addresses the limitations of conventional smooth-surfaced foam rollers, which are described as providing only broad, surface-level compression and being unable to effectively mobilize soft tissues like fascia, muscle, tendons, and ligaments Compl. ¶29 The state of the art at the time also counseled against adding projections due to safety concerns Compl. ¶30
• The Patented Solution: The invention is an integrated "core-overlay-projection" roller designed for targeted soft tissue treatment Compl. ¶34 It comprises a cylindrically shaped core for structural support, an overlay surrounding the core, and a plurality of projections extending from the overlay Compl. ¶35 The projections are specifically configured to extend into a user's soft tissue to deliver focused pressure safely and effectively Compl. ¶35 The materials for all components (closed-cell foam, rubber, or plastic) are selected for durability, hygiene, and the ability to support focal pressure Compl. ¶35
• Technical Importance: The technology provided a novel ability to target and mobilize knotted or tight areas of soft tissue, which was not achievable with prior smooth rollers Compl. ¶33

Key Claims at a Glance

• The complaint asserts independent claim 1 and dependent claims 5, 6, 12, 13, 16, 18, 23, 24, 25, 26, and 31 Compl. ¶168
• Independent Claim 1 of the '167 Patent recites:
  • A two-piece therapeutic, fitness, and sports enhancement device consisting of:
  • a first piece including an entirely cylindrically shaped core made of closed cell foam, plastic, or rubber material and having a diameter of about 3 inches to about 15 inches; and
  • a second piece including an overlay about the cylindrically shaped core, the overlay made of closed cell foam, plastic, or rubber material, including a plurality of shaped projections extending from the overlay, each configured to extend into soft tissue of a user to enhance mobilization of soft tissue and optimize body core strength and balance training.

U.S. Patent No. 9,656,112 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 9,656,112, "Therapeutic, Fitness, and Sports Enhancement Device," issued May 23, 2017 (the "'112 Patent"). Compl. ¶22

The Invention Explained

• Problem Addressed: Similar to the '167 Patent, this patent addresses the inability of conventional smooth rollers to deliver targeted pressure and effectively mobilize soft tissue Compl. ¶29
• The Patented Solution: The patent describes the same foundational core-overlay-projection architecture as the '167 Patent Compl. ¶3 The claims introduce additional features, such as the overlay "completely surrounding the core" and the projections being "solid" '112 Patent, claim 1 The specification, common to the asserted patents, also discloses embodiments with features like a lumen extending through the core Compl. ¶89
• Technical Importance: The invention provided a new method for users to perform self-mobilization of soft tissue by safely applying targeted pressure, a departure from the broad compression of existing tools Compl. ¶33 Compl. ¶34

Key Claims at a Glance

• The complaint asserts independent claim 1 and dependent claims 13-21 and 23 Compl. ¶176
• Independent Claim 1 of the '112 Patent recites:
  • A two-piece therapeutic, fitness, and sports enhancement device comprising:
  • a first piece including an entirely cylindrically shaped core made of closed cell foam, rubber or plastic and having a diameter of about 3 inches to about 15 inches; and
  • a second piece including an overlay completely surrounding the core, the overlay made of closed cell foam, rubber, or plastic and including a plurality of solid projections having a predetermined shape configured to extend into soft tissue of a user to enhance mobilization of soft tissue and optimize body core strength and balance training.

U.S. Patent No. 10,278,890 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 10,278,890, "Therapeutic, Fitness, and Sports Enhancement Device," issued May 7, 2019 (the "'890 Patent"). Compl. ¶23
• Technology Synopsis: The '890 Patent claims the same core-overlay-projection architecture for a therapeutic roller Compl. ¶3 The invention solves the problem of conventional rollers being unable to provide targeted, deep-tissue mobilization by using projections specifically configured to extend into a user's soft tissue Compl. ¶29 Compl. ¶34
• Asserted Claims: Independent claim 1 and dependent claims 2, 3, 7, 9, 10, and 17-23, and 25 are asserted Compl. ¶184
• Accused Features: The complaint alleges that the core, overlay, and projection structures of the Accused Products infringe the '890 Patent Compl. ¶184 Compl. ¶186

U.S. Patent No. 10,695,260 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 10,695,260, "Therapeutic, Fitness, and Sports Enhancement Device," issued June 30, 2020 (the "'260 Patent"). Compl. ¶24
• Technology Synopsis: The '260 Patent covers the same foundational two-piece architecture of a core, an overlay, and projections configured to extend into soft tissue Compl. ¶3 Compl. ¶79 This design aims to provide effective soft tissue mobilization and improve core strength and balance training, functionalities that were limited in prior art smooth rollers Compl. ¶29 Compl. ¶79
• Asserted Claims: Independent claim 1 and dependent claims 2, 3, 5, 6, 10, 12, and 20-26, and 28 are asserted Compl. ¶192
• Accused Features: The cylindrically shaped core, overlay, and projections of the Accused Products are alleged to infringe the '260 Patent Compl. ¶192 Compl. ¶194

U.S. Patent No. 12,193,986 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 12,193,986, "Therapeutic, Fitness, and Sports Enhancement Device," issued January 14, 2025 (the "'986 Patent"). Compl. ¶25
• Technology Synopsis: The '986 Patent relates to a soft tissue mobilization device with a core and an overlay having projections Compl. ¶3 Compl. ¶202 The invention addresses the need for a device that can apply targeted pressure to soft tissue, such as fascia and muscle, which conventional rollers could not effectively achieve Compl. ¶29 Compl. ¶202
• Asserted Claims: Independent claim 1 and dependent claims 2, 4, 5, 10, 11, and 20 are asserted Compl. ¶200
• Accused Features: The complaint accuses the core, overlay, and projections of the Accused Products of infringing the '986 Patent Compl. ¶200 Compl. ¶202

U.S. Patent No. 12,201,571 - "Therapeutic, Fitness, and Sports Enhancement Device"

• Patent Identification: U.S. Patent No. 12,201,571, "Therapeutic, Fitness, and Sports Enhancement Device," issued January 21, 2025 (the "'571 Patent"). Compl. ¶26
• Technology Synopsis: The '571 Patent describes a therapeutic device with a core and an overlay that includes projections configured to extend into tissue below subcutaneous fat while under user pressure Compl. ¶3 Compl. ¶98 This structure is designed to provide deeper and more targeted tissue mobilization than was possible with prior art devices Compl. ¶29
• Asserted Claims: Independent claim 1 and dependent claims 2, 4, 5, 11, 13, 14, and 20, 21, 24, 25, and 26 are asserted Compl. ¶208
• Accused Features: The core, overlay, and projections of the Accused Products are alleged to infringe the '571 Patent Compl. ¶208 Compl. ¶210

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are Defendant Chirp's foam roller products, specifically the "Wheel+", "Wheel XL", "Wheel Pro", and "Wheel XR" product lines (collectively, the "Accused Products") Compl. ¶1

Functionality and Market Context

• The complaint alleges that all Accused Products are projection-based rollers that employ the patented core-overlay-projection architecture Compl. ¶1 Each product line is alleged to include a cylindrically shaped ABS plastic core and a closed-cell EVA foam overlay Compl. ¶81 Compl. ¶92 Compl. ¶101 The "Wheel+" and "Wheel XL" products feature elevated circumferential projections, while the "Wheel XR" line adds distributed raised projections across the overlay surface Compl. ¶81 Compl. ¶92 Compl. ¶98 The "Wheel Pro" adds a motorized vibration feature to the basic architecture Compl. ¶94 The complaint alleges that Chirp repositioned these products from a "yoga prop" to a "back pain relief product" and deliberately moved them into the "Foam Rollers" category on Amazon to compete directly with Plaintiff's licensees Compl. ¶¶125-128 Chirp's founder reportedly disclosed over one million units sold and projected $40 million in sales for 2020 Compl. ¶123

IV. Analysis of Infringement Allegations

The complaint alleges that each of the Accused Products infringes multiple claims across the six Asserted Patents Compl. ¶¶168-213 The core of the infringement allegation is that the Accused Products embody the claimed two-piece architecture of a structural core, a surrounding overlay, and projections configured to penetrate soft tissue. Figure 4 on page 30 of the complaint shows the accused Wheel+ products disassembled into a separate plastic core and a foam overlay to support the "two piece" limitation (Compl. ¶82).

'167 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A two piece therapeutic, fitness, and sports enhancement device consisting of:	The Accused Products are alleged to be two-piece therapeutic roller devices.	¶¶81-82	col. 5:40-42
a first piece including an entirely cylindrically shaped core made of...plastic...and having a diameter of about 3 inches to about 15 inches	The Accused Products contain an entirely cylindrically shaped core made of ABS plastic with a diameter alleged to be within the claimed range, as supported by photographic measurements.	¶82; ¶83; ¶84	col. 6:15-19
a second piece including an overlay about the cylindrically shaped core, the overlay made of closed cell foam, plastic, or rubber material	The Accused Products include a second piece, an overlay made of closed-cell EVA foam, that is positioned about the core.	¶82	col. 6:20-23
including a plurality of shaped projections extending from the overlay, each of the plurality of shaped projections configured to extend into soft tissue of a user...	The Accused Products have curved, circumferential projections on the overlay. The complaint alleges these projections are configured to extend into soft tissue based on an analysis of their material, density, shape, and height, and by citing Defendant's own marketing claims that they "dig in deep to sore muscles."	¶85; ¶86; ¶87	col. 6:23-28

'112 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A two piece therapeutic, fitness, and sports enhancement device comprising:	The Accused Products are alleged to be two-piece therapeutic roller devices.	¶¶81-82	col. 5:44-46
a first piece including an entirely cylindrically shaped core made of closed cell foam, rubber or plastic and having a diameter of about 3 inches to about 15 inches	The Accused Products have a cylindrically shaped core made of ABS plastic with a measured diameter within the claimed range.	¶82; ¶83; ¶84	col. 6:30-33
a second piece including an overlay completely surrounding the core, the overlay made of closed cell foam, rubber, or plastic	The Accused Products include an overlay made of closed-cell EVA foam that completely surrounds the core.	¶82	col. 6:34-36
and including a plurality of solid projections having a predetermined shape configured to extend into soft tissue of a user...	The Accused Products have solid EVA foam projections. The complaint alleges these are configured to extend into soft tissue based on their physical characteristics and Defendant's marketing. Figure 8 on page 34 of the complaint provides analysis tables and cross-section photos to support this element.	¶85; ¶86	col. 6:36-40

Identified Points of Contention

• Scope Questions: The infringement analysis will likely center on the functional limitation "configured to extend into soft tissue." While the complaint presents extensive analysis of the projections' physical properties (material, density, height) and cites favorable PTAB constructions, a central question for the court will be whether the specific configuration of the Accused Products in fact performs this function Compl. ¶¶36, 86 The defendant may argue that the projections are merely textural and do not achieve the level of tissue engagement described in the patents.
• Technical Questions: A key evidentiary question will be whether the combination of ABS plastic for the core and EVA foam for the overlay and projections in the Accused Products meets the material and structural requirements of the claims (Compl. ¶82). Further, for claims requiring projections to be "solid," the court may need to evaluate evidence regarding the internal structure of the foam projections '112 Patent, claim 1

V. Key Claim Terms for Construction

The Term: "configured to extend into soft tissue of a user"

• Context and Importance: This term is the central functional limitation of the independent claims and is critical to the infringement analysis. The dispute will likely focus on whether the accused projections, based on their material properties and dimensions, are structurally capable of performing this function. Practitioners may focus on this term because the complaint alleges the PTAB has already provided a framework for its construction during reexamination, which requires considering the projections' "material, density, shape, and height" (Compl. ¶69, Compl. ¶86).
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification broadly describes the invention's purpose to "enhance mobilization of soft tissue," "optimize body core strength," and "break up collagenous fibers" '167 Patent, col. 2:28-40 This language may support an interpretation where any projection achieving these functional goals falls within the claim scope, regardless of its specific shape or material, as long as it is "configured" to do so.
  • Evidence for a Narrower Interpretation: The specification discloses specific embodiments with particular projection shapes (e.g., rounded, triangle), densities (e.g., 2.0 to 3.8 lb/ft³), and dimensions '167 Patent, col. 5:13-20 '167 Patent, col. 5:50-55 A defendant may argue that "configured to" requires a structure that is more than merely capable of extending into tissue, but is specifically designed for that purpose in a manner consistent with the disclosed embodiments.

The Term: "overlay"

• Context and Importance: The claims consistently recite a two-piece device comprising a "core" and an "overlay" '167 Patent, claim 1 '112 Patent, claim 1 The physical relationship and distinctness of these two components are essential for infringement.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The claim language "overlay about the cylindrically shaped core" suggests a positional relationship rather than a specific method of attachment or separability '167 Patent, claim 1 Plaintiff may argue that as long as there are two distinct material components fulfilling the roles of core and overlay, this limitation is met, which is supported by complaint Figure 4 showing the components separated (Compl. ¶82).
  • Evidence for a Narrower Interpretation: The specification for the related '890 Patent includes a claim where "projections are integrally molded with the overlay," suggesting that the patents contemplate a high degree of integration '10,278,890 C1, claim 24 A defendant might leverage this to argue that if the core and overlay are bonded or molded in a way that they become a single, inseparable functional unit, the structure is not a "core" with an "overlay" but a single composite piece.

VI. Other Allegations

Willful Infringement

• The complaint alleges that Defendant's infringement was and is willful and knowing Compl. ¶¶173, 181 The allegations are based on both pre-suit and post-suit knowledge. The complaint alleges Defendant had actual notice of the Asserted Patents from at least three sources: (1) competing in the same Amazon marketplace against Plaintiff's licensed products, which are allegedly marked with the patent numbers Compl. ¶¶149-150; (2) producing a 2019 YouTube video that directly compared an Accused Product to a patent-marked licensed product Compl. ¶¶150-151; and (3) receiving communications from the USPTO during prosecution of its own design patent application that identified the '167 Patent as relevant prior art Compl. ¶¶153-155 The complaint also points to a prior 2019 consent judgment against the Defendant for infringing a third party's patents as evidence of a disregard for intellectual property rights Compl. ¶¶159-164

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

• Functional Scope and Factual Proof: A central issue will be one of functional scope: do the physical characteristics (material, density, shape, height) of the accused "Chirp Wheel" projections meet the functional requirement of being "configured to extend into soft tissue"? The case may turn on a battle of expert testimony and technical evidence over whether Chirp's design performs the specific therapeutic function described in the patents or is merely textural, with the prior PTAB construction providing the framework for this factual dispute.
• Willfulness and Damages: A key question will be willfulness, given the extensive allegations of pre-suit knowledge, including direct marketplace comparison to marked products and notice from the USPTO. Should infringement be found, the court's determination on willfulness will be critical, potentially leading to enhanced damages. The 21% royalty rate deemed reasonable in the prior PowX litigation provides a significant data point for the potential damages landscape.
• Prior Art and Validity: While four of the asserted patents have survived reexamination, they are part of a large and interrelated family. A likely defense strategy will be to challenge the validity of the two newer patents ('986 and '571) and potentially re-challenge the older patents with different prior art or arguments, raising the question of whether subtle distinctions in the prior art could invalidate claims not previously reviewed by the PTAB.