Elmer Llewyn Sanders v. Nike, Inc.

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Elmer Llewyn Sanders (California)
  • Defendant: NIKE, Inc. (Oregon); Victoria's Secret & Company (alleged to be Oregon); Lululemon, Inc. (Washington); Under Armour, Inc. (Maryland)
  • Plaintiff’s Counsel: Pro Se
• Case Identification: Elmer Llewyn Sanders v. NIKE, Inc., et al., 2:23-cv-04302, C.D. Cal., 05/26/2023
• Venue Allegations: The complaint does not contain an explicit statement on the basis for venue; however, it has been filed against large national corporations that conduct business in the Central District of California.
• Core Dispute: Plaintiff alleges that various sports bras and related apparel sold by the Defendants infringe a patent for an undergarment using a memory foam insert to provide support and limit movement.
• Technical Context: The technology relates to supportive undergarments, specifically sports bras, designed to enhance comfort and performance during athletic activity by using memory foam.
• Key Procedural History: The complaint alleges that all Defendants were provided with actual notice of the patent and their alleged infringement via letters dated March 27, 2023.

Case Timeline

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

U.S. Patent No. 7,731,564 - "Undergarment with memory foam insert"

The Invention Explained

• Problem Addressed: The patent describes a problem with prior art sports bras, which either provided support at the cost of comfort and appearance by flattening the chest, or were not made of breathable fabric suitable for athletic activity (’564 Patent, col. 1:12-24).
• The Patented Solution: The invention is a support garment, such as a sports bra, that incorporates a "memory foam insert" designed to conform and mold itself to the wearer's body (’564 Patent, Abstract). This approach aims to provide support, reduce bouncing motion during activity, and enhance comfort by using breathable, moisture-wicking fabric without flattening the supported area (’564 Patent, col. 2:9-17, 64-67). Figure 5 shows an exploded view of the sports bra embodiment, illustrating the separate base fabric (2), the memory foam insert (3), and the main body of the garment (1) (’564 Patent, Fig. 5).
• Technical Importance: The invention purports to solve the trade-off between support and comfort in athletic apparel by combining the contouring properties of memory foam with the performance of technical fabrics (’564 Patent, col. 2:64-67).

Key Claims at a Glance

• The complaint does not specify which claims are asserted. The patent contains one independent claim, Claim 1.
• Independent Claim 1: A supportive undergarment top comprising:
  • a front portion;
  • a back portion;
  • an elastic band; and
  • a stitching portion;
  • wherein the elastic band is attached to the bottom of the front and back portions and encircles a wearer to provide stabilizing support and a controlled fit;
  • wherein the front portion is comprised of a memory foam insert, a base fabric, and a contrasting trim;
  • wherein the memory foam insert is permanently encased within the base fabric;
  • wherein the front portion is a single unbroken portion that is an expanse across an entirety of the wearer's bust; and
  • wherein the stitching portion connects the front portion, back portion, and elastic band.

III. The Accused Instrumentality

Product Identification

The complaint broadly accuses "garments that use the patented designs" (Compl. p. 3). The attached notice letters identify specific product lines:

• Nike, Inc.: "Women's High-Support Padded Sports Bra" (Compl. p. 9)
• Victoria's Secret & Company: "wireless molded cup for stabilized support, separation, & bounce Sports Bras and Cami's" (Compl. p. 7)
• Lululemon, Inc.: "Support Sport Bras" (Compl. p. 10)
• Under Armour, Inc.: "SmartForm sport bras" (Compl. p. 8)

Functionality and Market Context

The accused instrumentalities are athletic support garments, primarily sports bras, sold by major apparel companies. The complaint alleges these products incorporate "memory foam technology" designed to "limit and prevent the bouncing motion through the breast area during rigorous athletic and/or any other activity" (Compl. pp. 7-10). The complaint's attached marketing flyer from 2008 describes the patented invention as "The No Bounce Sports Bra," suggesting the accused products compete in the market for high-support athletic apparel (Compl. p. 19). This flyer from an "Original Website" shows an early marketing effort for the patented technology (Compl. p. 19).

IV. Analysis of Infringement Allegations

The complaint does not contain a claim chart or detailed infringement allegations mapping specific product features to claim limitations. It makes a general allegation that the defendants' products "use the patented designs" (Compl. p. 3) and contain "identical design elements" (e.g., Compl. p. 7). The following table is a "best efforts" summary based on the conclusory allegations in the complaint and its attached notice letters.

’564 Patent Infringement Allegations

Identified Points of Contention

• Technical Questions: A primary question is whether the materials used in the accused products constitute "memory foam" as that term is understood in the patent. The complaint alleges the use of "memory foam technology" but provides no evidence or technical detail about the actual composition or properties of the padding in the accused bras (Compl. p. 7).
• Scope Questions: The infringement analysis may turn on the scope of the limitation "a single unbroken portion that is an expanse across an entirety of said bust." The court will need to determine if the construction of the accused bras, which may use separate molded cups or different padding configurations, meets this structural requirement as described in the patent.

V. Key Claim Terms for Construction

The complaint does not provide sufficient detail for a full analysis of claim construction disputes. However, based on the technology and the claims, certain terms are likely to be central.

• The Term: "memory foam insert"
• Context and Importance: This term is the core of the invention. Its definition will be critical to determining infringement, as the plaintiff's theory rests on the accused products using this technology. Practitioners may focus on whether the term should be limited to a specific type of viscoelastic polyurethane foam or if it can be read more broadly to cover other conforming, supportive foam materials used in apparel.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification does not define "memory foam" with a specific chemical composition, instead describing it functionally as a "specialized foam insert" that "sculpts and contours to the body to eliminate the bouncing motion" (’564 Patent, col. 2:18-20). This functional description could support a broader construction.
  • Evidence for a Narrower Interpretation: The patent consistently uses the specific term "memory foam" rather than a more generic term like "foam" or "padding." A defendant could argue that in the context of the patent, the term was intended to refer to the specific type of viscoelastic foam commonly known as memory foam at the time of the invention, not any foam that happens to be supportive.

VI. Other Allegations

• Indirect Infringement: The complaint does not allege specific facts to support a claim for either induced or contributory infringement.
• Willful Infringement: The complaint alleges that all named defendants received "actual notice" of their infringement via letters dated March 27, 2023 (Compl. p. 3). The request for punitive damages is based on the defendants' "continued and ongoing manufacture and sale of the patent infringed clothing" after receiving this notice (Compl. p. 3). This forms a basis for alleging post-suit willfulness.

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

1. Evidentiary Sufficiency: A threshold issue will be whether the plaintiff can produce evidence to support the bare allegations in the pro se complaint. The case will depend on the plaintiff's ability to demonstrate, through discovery and expert analysis, how the accused products' specific materials and construction meet each limitation of the asserted patent claim(s).
2. Definitional Scope: The case will likely hinge on claim construction, particularly the meaning of "memory foam insert." The central question for the court will be whether the foam or padding materials used in the defendants' high-performance sports bras fall within the technical scope of this term as it is used and described in the ’564 patent.
3. Structural Equivalence: A key question of fact will be whether the accused products, which may feature multi-part or seamed-cup constructions, contain a "front portion [that] is a single unbroken portion that is an expanse across an entirety of said bust," as required by Claim 1.