On February 21st, 2FIRSTS reported ELFBAR's launch of an e-cigarette product called "ELFBAR AF5000". This product comes with a built-in 2ml e-liquid tank and an additional 10ml liquid reservoir, providing up to 5000 puffs.
On March 18, the e-cigarette brand INSTAFLOW's parent company, GIGAKESION, disclosed to 2FIRSTS via email that ELFBAR AF5000 is suspected of infringing on its company's patented technology for INSTAFLOW products. They provided evidence such as comparison diagrams of product structures, launch time comparisons, and patent screenshots. In addition, GIGAKESION stated that they have filed a lawsuit against Heaven Gifts and Cellular Factory for infringement of their patent rights under "infringement of utility model patent disputes".
To present the true situation of the incident and ensure an objective and fair reporting stance, 2FIRSTS have communicated with the relevant parties, GIGAKESION and Heaven Gifts, on this matter.
GIGAKESION: Shocked by the Similarities in Products
The CEO of GIGAKESION, Kyle, held a discussion and interview with 2FIRSTS.
Kyle explained that until 2023, GIGAKESION focused primarily on the Australian market, but shifted towards the European and UK markets in 2023.
Kyle stated that the company successfully developed the technology in October 2022 and applied for a utility patent in China in February 2023. The patent was granted in August of the same year, and the company simultaneously applied for patents in multiple countries.
During the discussion, Gigakesion mentioned that the confirmation time for INSTAFLOW on the e-cigarette disclosure website of the Medicines and Healthcare Products Regulatory Agency (MHRA) in the UK was earlier than ELFBAR AF5000. Subsequently, 2FIRSTS conducted an information search on the MHRA official website, and the results are as follows:
- On October 2, 2023, INSTA FLOW was officially announced.
- On January 19, 2024, "ELFBAR AF5000" received official approval.
According to the UK Tobacco and Related Products Regulations, all e-cigarette products must be submitted to the MHRA for review before entering the market, so information on compliant e-cigarette products in the UK can be found on their official website.
Kyle told 2FIRSTS, "The product has obtained certifications from the UK's MHRA and Trading Standards Agency, and has been well received in the market after partnering with UK channels."
Furthermore, GIGAKESION provided another piece of evidence, a PR article published on February 5, 2024, introducing the number of devices and background of INSTAFLOW4500: INSTAFLOW4500 is a "strange hybrid" of an all-in-one device and a bottom injector; and the threatened ban on disposable e-cigarettes is imminent.
Before the ban on disposable e-cigarettes in the UK was officially announced, innovative disposable e-cigarettes such as IVG2400 had already entered the market in 2023. It combines four pods to provide larger puff counts while still maintaining the portability of disposable e-cigarettes.
Kyle pointed out that the advantage of INSTAFLOW 4500 also lies in overcoming the 2ml restriction in the UK. "The initial inspiration came from a combination of open pods and e-liquid bottles." It will be launched on the official website of UK wholesalers in November 2023. This kit has a 2ml e-liquid tank and an additional 10ml independent refillable oil tank, allowing for up to 4500 puffs.
The same "2+10" configuration standard also appears in the parameters of the ELFBAR AF5000. To compare the similarities and differences between the two, GIGAKESION provides a comparison of the external appearance and structural breakdown of the two products. GIGAKESION states that the two products show a high degree of similarity in terms of the type of cartridge replacement and the replacement of e-liquid containers.
Therefore, when Kyle and his colleagues first saw the promotional information related to "ELFBARAF5000", they felt shocked and concerned. He believed that ELFBAR chose to mimic INSTAFLOW as a reference precisely because of its innovation.
"This product has a significant impact on the 2ml force on the track," Kyle said.
Pressing Issue that Needs to be Resolved
According to Kyle, after learning that ELFBARAF5000 was about to be released, he had a phone conversation with officials responsible for overseas business at Heaven Gifts, but there has been no substantial progress since then. After the Chinese New Year this year, GIGAKESION, together with their partners in the UK, sent a legal letter to Heaven Gifts through a British law firm in February 2024, but as of now, they have not received a response from Heaven Gifts.
Therefore, in March 2024, GIGAKESION decided to file a patent infringement lawsuit against Shenzhen Heaven Gifts Technology Co., Ltd. and Guangdong Cellular Factory Electronic Technology Co., Ltd. in China.
Kyle said that the case has been successfully filed.
In the civil complaint provided to 2FIRSTS by GIGAKESION, the company's legal requests include:
The court should order the two defendants to immediately cease manufacturing, selling, promising to sell, and exporting infringing products, and further ordered the defendants to destroy their inventory of finished products and the molds used to produce the infringing products.
The court should order the two defendants to compensate the plaintiff for their economic losses and reasonable legal fees in the amount of 3 million RMB.
The court should rule that both defendants must bear the litigation costs of this case.
During the interview, Kyle expressed his hope that the industry would respect originality.
He stated that the research and development cycle for e-cigarette patent technology is long, and the investment made requires technical personnel to conduct repeated testing. At the same time, he also wants to defend the rights of British channel partners and create more valuable products in the future.
We hope that through this lawsuit, the entire industry will realize the importance of respecting originality. If we do not take action, then in the future there will be more small and medium-sized enterprises that dare not innovate, while large enterprises will lose their innovative drive due to lack of competition. This is detrimental to the development of the entire industry.
Response from Heaven Gifts
The PR department of Heaven Gifts responded to 2FIRSTS via email on the morning of March 22nd.
Our AF5000 complies with the laws and regulations of China and the countries where it is exported, and we have applied for multiple patents. As of now, we have not received any administrative or judicial notices regarding infringement of the AF5000. As a well-known brand in the atomization industry, ELFBAR has always attached great importance to brand and patent protection, maintained a high standard of product quality and safety, and provided cost-effective harm reduction products for adult users.
Hidden Dangers of E-cigarette Patent War
Recently, there have been increasing incidents of patent disputes in the e-cigarette industry. 2FIRSTS interviewed Counsellor Tang Shunliang from the Tianyuan Law Firm regarding the patent issues in the e-cigarette industry.
Counsellor Tang mentioned that with the global patent settlement of the two tobacco giants, the next step will be for the competition in patent litigation caused by market fragmentation to shift towards several e-cigarette companies in the United States. Taking PAX's "leak-proof vape" 337 patent case as an example, many of the e-cigarette pods exported from China fall within the protection scope of this patent group, which reflects JUUL's carefully planned strategy.
He said that with the entry of major tobacco companies, e-cigarettes are in a stage of transitioning from "low-end" to "premium", patents are shifting from "quantity" to "quality", and good patents will become weapons in a new round of competition, new technologies and products will become new market growth points, domestic e-cigarette companies will also use patents to compete for orders with their peers.
Timeline of the event:
October 2022: Gigakesion begins development of the "INSTAFLOW" product.
February 2023: Gigakesion files for related product patents in China.
August 2023: Gigakesion is granted utility model patent authorization.
October 2023: INSTAFLOW is publicized by the UK MHRA.
November 2023: INSTAFLOW is listed on wholesale websites in the UK.
February 2024: Gigakesion discovers potential patent infringement by iMiracle's ELFBAR AF5000 product.
March 2024: Gigakesion files lawsuits against iMiracle and Cellular Factory in China.
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