Can you patent clothing? The Knitted Shoe Battle: Nike vs. Adidas Welcome

Can you patent clothing?
Dr. Julia Blind
Slide 1 •February 15, 2013
The Knitted Shoe Battle: Nike
vs. Adidas
Julia Blind
Patents in Fashion
„ Patents on fashion products? They exist.
„ Fashion is more than design, création, haute-couture
„ Fashion products contains also technical aspects,
Elias Howe received a patent in 1851 for an 'Automatic, Continuous
Clothing Closure.'
Forty-four years later, Mr. Whitcomb Judson marketed a 'Clasp Locker'
a device similar to the 1851 Howe patent.
Gideon Sundback increased the number of fastening elements from four
per inch to ten or eleven, had two facing-rows of teeth that pulled into a
single piece by the slider, and increased the opening for the teeth
guided by the slider. The patent for the 'Separable Fastener' was issued
in 1917.
Julia Blind
Slide 2 •February 15, 2013
f. e. zippers
Patents in Fashion
„ Patents are increasingly being sought in the textile manufacturing industry.
„ A number of new textile and fibre technologies developed
have been patented.
§ W.L. Gore & Associates, Inc.
§ Sympatex Technologies GmbH
„ Patents have also been used to protect some functional
Slide 3 •February 15, 2013
sports garments.
§ Nike International Ltd.
§ Adidas International Marketing B.V.
§ Speedo International Ltd.
Julia Blind
Nike vs. Adidas
„ The two main players fight for their patent rights …
District Court for the Eastern District of Texas. The complaint
identifies several top adidas products using adidas’a3
cushioning system that allegedly infringe upon Nike’
patented SHOX cushioning technology.
Julia Blind
Slide 4 •February 15, 2013
„ Feb. 2006: Nike filed a legal complaint against in the U.S.
The battle „Nike vs. Adidas“ continued 2012
„ Nike filed on 23.08.2012 for a preliminary injunction against
Adidas for alleged patent infringement of EP 1 571 938 B1 in
„ This European patent is in Germany in force
„ It concerns a shoe, the upper part of which contains fibres of
a meltable polymer material arranged in a certain order.
→ reduction of amount of material used to make the shoe +
reduction of costs of manufacturing
Slide 5 •February 15, 2013
„ Nike realized this patent with its flyknit-shoe.
This shoe debuted in February 2012.
Julia Blind
Patent-in-suit EP 1 571 938 B1
„ Claim 1 reads:
An article of footwear having a sole structure and an upper
secured to said sole structure, said upper comprising:
§ a fused area of a textile, said fused area being at least
§ an unfused area of said textile, said first strands being
unfused to said second strands in said unfused areas.
Julia Blind
Slide 6 •February 15, 2013
partially formed from a plurality of first strands being
formed of a first thermoplastic polymer material, and said
first strands being fused to said second strands in said
fused area; and
Patent-in-suit EP 1 571 938 B1
„ Claim 19 reads:
A method of manufacturing an upper for an article of footwear,
said method comprising the steps of:
§ providing a plurality of strands, at least a first portion of the
strands including at least a first thermoplastic polymer
of the upper; and forming a fused area of the textile by
fusing at least the first portion of the strands to a second
portion of the strands at only selected locations of the
upper, while not fusing the first and second portions at
other non-selected locations of the upper.
Julia Blind
Slide 7 •February 15, 2013
§ incorporating the strands into a textile that forms a portion
Subject-matter: adizero primeknit
„ subject-matter of that proceeding was the adizero primeknit-
„ This shoe was presented at the Olympic Games in London
with few samples, but Adidas also announced the worldwide
launching for autumn 2012.
Julia Blind
Slide 8 •February 15, 2013
shoe of Adidas
The proceeding in Nuremberg, Germany
„ 28.08.2012: Court in Nuremberg issued an ex parte
preliminary injunction (an ex parte injunction in patent law
is in Germany very exceptional)
„ 24.09.2012: injunction was served to Adidas
„ Adidas filed an appeal against the injunction and applied for a
stop of execution
„ The court stopped the execution of the injunction with effect of
„ 17.10.2012: Adidas filed proceedings for nullity of the patentin-suit with the German Federal Patent Court, Munich
„ 24.10.2012: oral hearing in Nuremberg
„ 07.11.2012: injunction was lifted
Julia Blind
Slide 9 •February 15, 2013
10.10.2012 (such a stop is in Germany very exceptional)
Judgment of 07.11.2012
„ Court was based on the means of evidence allowed in a
injunction proceeding not convinced of a patent infringement
§ Claims 1 e) and f) are not fulfilled
§ Claim 19 d) iii) is not fulfilled
§ Doubts on the validity of the patent-in-suit due to lack of
•In general: infringement court is bound to an issued
•But: the infringement court is entitled to take into
consideration its assessment of the outcome of the
nullity proceeding
„ No appeal was filed; no main action proceedings are pending
Julia Blind
Slide 10 •February 15, 2013
Patent protection is an important aspect in the fashion
„ Patents are issued for technical inventions of goods or
„ The main requirement for patent protection is the novelty,
anywhere in the world, before the date of filing.
protected by (registered) utility models. The substantive
requirements for a utility model are the same as for patents,
however the utility model is granted without examination of
the requirements (novelty, inventive step and industrial
applicability) by the German PTO.
Julia Blind
Slide 11 •February 15, 2013
„ Particularity In Germany: new technologies can also be
Thank you for your attention!
Dr. Julia Blind
Specially accredited for intellectual
property law
Slide 12 •February 15, 2013
KLEINER Rechtsanwälte
Alexanderstrasse 3
70184 Stuttgart, Germany
phone: (0711) 601 708-30
email: [email protected]
Julia Blind