Juul e-cigarette. Photo by Steve Heap/Shutterstock.com.

Juul Labs Inc. has been in a seemingly nonstop legal fight against copycat vaping products for several years, asserting utility patents on its vaping technology and trademark actions against counterfeit e-cig makers.

On Friday, the San Francisco company headed back to the International Trade Commission (and 11 different district courts), this time asserting design patents on its liquid-containing cartridges, also known as pods, which snap into Juul vaporizing devices. The ITC complaint names more than 40 manufacturers and distributors.

Juul, also known as JLI, "has not authorized any third parties to advertise their products as compatible with the JUUL System," states the complaint, which is signed by Quinn Emanuel Urquhart & Sullivan partner S. Alex Lasher. "Consumers may be harmed if, trusting Respondents' unproven and likely false claims about compatibility, they try to use the non-JLI products, which were manufactured using unknown substances and materials, in unknown locations, with unknown manufacturing requirements and quality controls."

Also on the complaint are Quinn Emanuel partners Kevin Johnson, Victoria Maroulis and Andrew Holmes.

Juul is seeking a general exclusion order that would block the import of all infringing cartridges into the United States. The company says it was the first to market an e-cigarette that doesn't look like a traditional cigarette, but instead features a rectangular, capped cartridge.

McAndrews, Held & Malloy partner Christopher Carani, a design patent specialist, said it will be interesting to see how many of the respondents fight back at the ITC, which can be expensive, rather than simply design around the patents.

If Juul is going to argue that any cartridge that's compatible with its vaporizers infringes, that could run into laws that limit design patent protection to the aesthetics of a design, Carani said.

"When you have things like must-fit pods, the question then is, is there actually any aesthetic design that's occurring?" he said. A judge analyzing the patent would give "little visual credit to the portions of the cartridge design that are dictated by functional considerations."

Carani is the author of "Design Rights: Functionality and Scope of Protection." He described design patents as neither common nor unheard of at the ITC, noting well-known litigation over Crocs footwear, the Ford F-150 and Fiat Chrysler's Jeep vehicles. Carani is working on a second edition of his book this fall, "so maybe this case will be in there," he said.

Juul also seems to be using the case as a platform for reminding that public that it's complying with a Food and Drug Administration order that blocked Juul and other e-cig makers from marketing kid-friendly flavors. "Respondents and others like them also intentionally and improperly target underage consumers using kid-friendly flavors with marketing that either intentionally or recklessly targets youth, despite the FDA's 'Flavor Ban,'" Juul argues.

University of Houston law professor Sapna Kumar said the ITC issues general exclusion orders only rarely. To get one, "it has to be either necessary to prevent circumvention of an exclusion order limited to products of named persons or there has to be a pattern of violation (such as an importer using a variety of brand names or model numbers to try to circumvent a limited exclusion order)," she said.

Juul argues that's the situation here. The respondents "appear to employ complex business arrangements, conduct business under multiple names, and/or form intricate arrays of confusingly similar affiliates, all of which will make it difficult—if not impossible—to determine the source of the infringing products," Juul argues.

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