We Beat a Birdfy Bird Feeder Patent Lawsuit (so far) — Here's What Happened

If you sell products online, you have probably heard of "Schedule A" patent litigation. A patent, trademark, or copyright holder files suit against dozens, sometimes hundreds, of sellers at once, attaches a sealed list of defendants, and moves immediately for a temporary restraining order that freezes your PayPal, Amazon, or bank accounts before you even know you've been sued. It is a business model as much as a legal strategy, and it has put a lot of small sellers out of business without ever reaching a merits decision.

This case was a bit different. It started with around a dozen sellers, but publicly named from the outset. Even so, my co-counsel and I obtained a denial of a preliminary injunction and asset freeze after previously severing all but one defendant from the case: a design patent case brought by Netvue Technologies Co. Ltd., the company behind the Birdfy brand of AI-powered bird feeders. The case is Netvue Technologies Co. Ltd. v. Gooding Store, No. 1:25-cv-14931, pending before Judge April M. Perry in the Northern District of Illinois.

What Netvue Was Asking For

Netvue makes the Birdfy line of smart bird feeders — devices equipped with cameras and AI-assisted bird identification that have become popular in the backyard birding market. Netvue holds a re-issued design patent on the ornamental appearance of its feeder and sued our client, Gooding Store, along with other third-party marketplace sellers it accused of infringing that design.

Along with the lawsuit, Netvue moved for a preliminary injunction to stop sales and, critically, an asset restraint to freeze millions of our client's funds while the case played out. An asset freeze at the preliminary injunction stage is one of the most aggressive tools available in federal court. It doesn't wait for a verdict. It doesn't require proof that a defendant did anything wrong. All a plaintiff needs is a sufficient showing that it will likely succeed on the merits and that money is at risk of disappearing. For a small business, that freeze can be fatal long before a judge ever decides who is right.

What We Argued — and What the Court Found

To win a preliminary injunction, a plaintiff must demonstrate, among other things, a likelihood of success on the merits of its infringement claim. In a design patent case, that means showing that an ordinary observer, familiar with the prior art, would likely be deceived into thinking the accused product is substantially the same as the patented design.

That is a harder standard to meet than it sounds, and Netvue couldn't meet it here.

We argued — and Judge Perry agreed — that Netvue failed to demonstrate a likelihood of success for two independent reasons.

The accused product looks different from the patent, especially in light of the prior art. Design patents protect the specific ornamental appearance shown in the patent drawings. They do not give the patent holder a monopoly over every bird feeder that vaguely resembles theirs. When you account for what already existed in the market before Netvue's patent issued, the prior art, the differences between Netvue's claimed design and our client's product are meaningful. An ordinary observer who knows what bird feeders already looked like would not be deceived into thinking the two are the same.

The claimed design features are functional, not ornamental. This is a distinct and often overlooked defense in design patent cases. A design patent can only protect features that are ornamental, i.e. those chosen for aesthetic reasons. If a feature's appearance is dictated by its function (how it works, how it attaches, how it dispenses seed, how it holds a camera), that feature cannot be protected by a design patent. The camera cut out claimed in the design elements Netvue was there because it is the shape of the camera. It serves a function that any competing product would need to address the same way. A patent cannot lock up functional features under the guise of protecting ornamental design.

With no likelihood of success established, the injunction and asset restraint both fell.

Of course, this is just the beginning of the case. As it develops the Court or a jury might ultimately decide differently. But, keeping over $4,000,000 in assets from being frozen is a win in and of itself for our client.

Why This Matters If You're a Marketplace Seller

The Birdfy litigation is part of a broader pattern. Patent holders — and the law firms that specialize in this work — have discovered that filing mass suits against marketplace sellers, pairing them with emergency injunctions and asset freezes, and then offering quick settlements is more efficient than actually litigating. Many defendants settle not because they infringed but because they cannot afford to fight with a frozen account and a looming preliminary injunction hearing.

Winning at the preliminary injunction stage — before any money changes hands in settlement — sends a different message. It means the merits matter. It means the patents have to hold up. And it means sellers have a real defense available to them.

A few things worth understanding if you receive a lawsuit like this:

Move fast. Preliminary injunction hearings can be scheduled within days or weeks of the complaint. If your accounts are frozen under a TRO, you often have very little time to respond before the court holds a hearing on whether to convert that TRO into a longer-term preliminary injunction. Delay is your enemy.

Design patents may not be as strong as they look. A design patent covers one specific ornamental appearance. The prior art matters enormously. Functional features are carved out. Small but meaningful differences between your product and the patent drawings can defeat infringement. These are not technicalities — they are substantive legal defenses.

Severance can matter strategically. In multi-defendant Schedule A cases, defendants are often lumped together. In this case, we had already won a motion to sever Gooding Store from the other defendants before the preliminary injunction hearing — which allowed us to focus the court's attention squarely on our client's product and our client's facts, rather than litigating in a sea of unrelated sellers.

The Bigger Picture

Smart bird feeders are a real product in a real market, and Netvue's Birdfy line has been genuinely successful. If Netvue has a valid patent and a competitor is truly copying the ornamental design of their product, they may have a legitimate claim. But "looks vaguely similar" is not infringement, functional features are not protectable, and a motion for preliminary injunction is not — or should not be — a settlement-forcing mechanism.

If you have been named in a Schedule A patent case, or if you have received a cease-and-desist from a patent holder claiming your products infringe a design patent, contact me. I can help. You can reach me HERE.

Jonathan Phillips is an IP litigator who routinely defends Schedule A cases. This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.