DCT

1:23-cv-11599

SherryWear LLC v. Nike Inc

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:23-cv-11599, D. Mass., 07/17/2023
  • Venue Allegations: Venue is alleged to be proper in the District of Massachusetts because NIKE has committed acts of infringement within the district and maintains at least one regular and established place of business in the district.
  • Core Dispute: Plaintiff alleges that Defendant’s sports bras with integrated storage pockets infringe eight of Plaintiff's U.S. patents directed to "Pocket Bra" technology.
  • Technical Context: The technology at issue involves apparel design, specifically the integration of pockets into sports bras to allow wearers to carry personal items like phones, keys, or cards during physical activity.
  • Key Procedural History: The complaint alleges a detailed history of pre-suit interactions, beginning with a June 2015 submission of Plaintiff’s patented and patent-pending ideas to NIKE’s online "Idea Submission" platform. This was followed by communications in 2017 between Plaintiff’s founder and NIKE's then-VP of Global IP Transactions & Licensing, which allegedly concluded with NIKE passing on the opportunity. The complaint alleges that shortly after these communications, NIKE filed its own patent applications for pocket bras. Plaintiff further alleges sending three separate notice letters to NIKE regarding infringement between January 2021 and June 2023 before filing this lawsuit. This history is presented to support allegations of willful infringement.

Case Timeline

Date Event
2011-04-26 Earliest priority date for all eight asserted patents
2015-06-18 SherryWear submits idea and patent information to NIKE
2016-03-22 U.S. Patent No. 9,289,016 issues
2016-03-29 U.S. Patent No. 9,295,288 issues
2017-02-07 SherryWear communicates with NIKE's VP of IP Licensing
2017-03-24 NIKE emails SherryWear that it will "pass on the opportunity"
2017-05-17 NIKE files U.S. patent application for "Bra With Storage Pockets"
2017-08-08 U.S. Patent No. 9,723,878 issues
2017-09-22 SherryWear makes second submission to NIKE's idea platform
2017-09-28 NIKE files a second U.S. patent application for "Bra With Storage Pockets"
2017-10-20 NIKE's legal department informs SherryWear of "no interest"
2017-11-07 U.S. Patent No. 9,808,036 issues
2019-01-XX NIKE allegedly begins selling infringing products
2019-01-XX SherryWear's founder emails NIKE regarding alleged infringement
2019-03-05 U.S. Patent Nos. 10,219,550 and 10,219,551 issue
2019-04-02 U.S. Patent No. 10,244,800 issues
2019-XX-XX NIKE introduces "Swoosh Pocket Bra" and "Swoosh Bra"
2020-12-22 U.S. Patent No. 10,869,510 issues
2021-01-19 SherryWear's counsel sends first notice letter to NIKE
2021-07-07 SherryWear's counsel sends second notice letter to NIKE
2022-XX-XX NIKE introduces "Swoosh On The Run" bra
2023-06-26 SherryWear's counsel sends third notice letter to NIKE
2023-07-17 Complaint filed

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

U.S. Patent No. 10,219,550 - “Pocket Bra System”

  • Issued: March 5, 2019
  • The Invention Explained:
    • Problem Addressed: The patent describes the problem of finding a "safe, convenient and economical" way for a wearer to carry items, such as a handheld electronic device, while wearing a bra that provides breast support and shaping (U.S. Patent No. US10219550B1, col. 1:11-18).
    • The Patented Solution: The invention is a pocket bra system where a patch of material is operatively associated with a bra cup to form a pocket. The patent describes coupling the lower and exterior edges of the patch to the cup, leaving the upper edge uncoupled to create an opening for item insertion and removal ('550 Patent, Abstract; col. 5:45-65). Figure 9 illustrates a pocket (formed by patch 236 on cup 222) with a top opening (252) designed for this purpose ('550 Patent, Fig. 9).
    • Technical Importance: The invention provides a method for integrating secure, accessible storage directly into a primary article of athletic apparel, potentially obviating the need for separate belts or armbands ('550 Patent, col. 2:30-34).
  • Key Claims at a Glance:
    • The complaint asserts independent claim 8 (Compl. ¶82).
    • Essential elements of claim 8 include:
      • A pocket bra comprising a strap assembly and left/right cups.
      • A patch forming a pocket associated with at least one cup.
      • The patch's lower edge is coupled to the bra adjacent to the cup's lower edge.
      • The patch's exterior edge is coupled adjacent to the cup's exterior edge.
      • A pocket opening is formed along the unconnected upper edge of the patch.
      • The pocket opening is capable of repeated use.
      • The upper edge of the patch crosses over a surface of the cup, and the opening "faces the interior edge" of the cup to which it is attached.
    • The complaint reserves the right to assert dependent claims 9, 11, 12, 13, and 14 (Compl. ¶81).

U.S. Patent No. 9,808,036 - “Pocket Bra System”

  • Issued: November 7, 2017
  • The Invention Explained:
    • Problem Addressed: As with the related patents, the invention addresses the need to conveniently carry personal items while wearing a supportive bra ('036 Patent, col. 1:11-18).
    • The Patented Solution: This patent also discloses a pocket bra formed by a patch stitched onto a cup. The solution specifies that the patch's upper edge crosses over the cup surface to form the opening, and importantly, this upper edge is "offset from an upper edge of the cup" ('036 Patent, Abstract; col. 6:40-48). This offset creates a distinct spatial relationship between the pocket opening and the top of the bra cup ('036 Patent, Fig. 9).
    • Technical Importance: The design focuses on a specific front-pocket construction that aims to balance security and accessibility by defining the pocket opening's position relative to the garment's structure ('036 Patent, col. 2:23-30).
  • Key Claims at a Glance:
    • The complaint asserts independent claim 1 (Compl. ¶92).
    • Essential elements of claim 1 include:
      • A pocket bra comprising a strap assembly and left/right cups.
      • A patch forming a pocket on at least one cup, with an upper edge, a lower interior body facing edge, and a lower exterior edge.
      • Stitching couples the patch's lower edges to the lower edges of the cup or the chest strap.
      • An opening is formed along the patch's upper edge.
      • The opening is capable of repeated use.
      • The upper edge of the patch crosses over a surface of the cup to form the opening, with the patch's upper edge being "offset from an upper edge of the cup."
    • The complaint reserves the right to assert dependent claims 2, 5, 6, 7, 9, 10, and 18 (Compl. ¶91).

U.S. Patent No. 9,295,288 - “Pocket Bra System”

  • Patent Identification: U.S. Patent No. US9295288B1, issued March 29, 2016.
  • Technology Synopsis: This patent is directed to a bra pocket system combination that includes front pockets on the cups and side pockets on the chest strap. The claims describe a specific construction where the pocket has a linear opening configured to receive items like a handheld electronic device, keys, and pills ('288 Patent, col. 6:6-42).
  • Asserted Claims: Claims 1, 2, 3, and 11 are asserted (Compl. ¶101).
  • Accused Features: The front pockets of the "Swoosh On The Run" bra are alleged to infringe (Compl. ¶101, 103).

U.S. Patent No. 9,289,016 - “Pocket Bra System”

  • Patent Identification: U.S. Patent No. US9289016B1, issued March 22, 2016.
  • Technology Synopsis: This patent focuses on a pocket bra system with side pockets. The invention describes a side patch located on the chest strap adjacent to a cup, with the pocket extending onto the adjacent cup such that it "spans both a part of the chest strap and a part of the adjacent cup" ('016 Patent, col. 6:53-65).
  • Asserted Claims: Claims 1 and 2 are asserted (Compl. ¶111).
  • Accused Features: The side pockets of the "Swoosh Pocket Bra" and "Swoosh Bra" are alleged to infringe (Compl. ¶112).

U.S. Patent No. 10,219,551 - “Bra Pocket System”

  • Patent Identification: U.S. Patent No. US10219551B1, issued March 5, 2019.
  • Technology Synopsis: This patent is directed to a chest covering with side pockets on the chest strap. A key feature is that the upper edge of the side patch lies along the "same edge line" as at least a portion of the top edge of the chest strap, forming an opening ('551 Patent, col. 8:1-11).
  • Asserted Claims: Claims 16-18 are asserted (Compl. ¶121).
  • Accused Features: The side pockets of the "Swoosh Pocket Bra" and "Swoosh Bra" are alleged to infringe (Compl. ¶122).

U.S. Patent No. 9,723,878 - “Pocket Bra System”

  • Patent Identification: U.S. Patent No. US9723878B1, issued August 8, 2017.
  • Technology Synopsis: This patent discloses a chest covering with side pockets where the chest strap extends from each cup towards the wearer's back. The claims recite a side patch on the chest strap adjacent to a cup, forming a pocket capable of repeated use ('878 Patent, col. 8:15-34).
  • Asserted Claims: Claim 15 is asserted (Compl. ¶131).
  • Accused Features: The side pockets of the "Swoosh Pocket Bra" and "Swoosh Bra" are alleged to infringe (Compl. ¶132).

U.S. Patent No. 10,244,800 - “Bra Pocket System”

  • Patent Identification: U.S. Patent No. US10244800B1, issued April 2, 2019.
  • Technology Synopsis: This patent focuses on a back pocket for a bra. The invention describes a pocket formed entirely of stretchable fabric on the back portion of the bra's strap assembly, with an opening that is "biased in a closed position at rest" to secure an item inside ('800 Patent, col. 7:1-9).
  • Asserted Claims: Claims 1, 2, 5, 7, and 10 are asserted (Compl. ¶141).
  • Accused Features: The back pockets of all accused "Infringing Products" are alleged to infringe (Compl. ¶141-142).

U.S. Patent No. 10,869,510 - “Bra Pocket System”

  • Patent Identification: U.S. Patent No. US10869510B1, issued December 22, 2020.
  • Technology Synopsis: This patent also describes a back pocket, but focuses on the strap assembly joining at a "central area" on the wearer's back. The pocket is formed of stretchable fabric at this central area and has an opening "biased in a closed position at rest" ('510 Patent, col. 7:1-9).
  • Asserted Claims: Claims 1, 2, 4, 7, and 11 are asserted (Compl. ¶150).
  • Accused Features: The back pockets of all accused "Infringing Products" are alleged to infringe (Compl. ¶151).

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are NIKE sports bras sold under the names "Swoosh On The Run," "Swoosh Pocket Bra," "Swoosh Bra," and variations thereof, which are sometimes marketed under the name "Icon Clash" (Compl. ¶1, 56).

Functionality and Market Context

The accused products are sports bras featuring integrated pockets designed to store personal items (Compl. ¶43, 55, 67). The "Swoosh On The Run" model is alleged to have one back pocket and two front pockets (Compl. ¶45). The "Swoosh Pocket Bra" and "Swoosh Bra" models are alleged to have a back pocket, two side pockets, and a front pocket (Compl. ¶58, 69). The complaint includes a photograph showing a mobile phone being inserted into the back pocket of the "Swoosh On The Run" bra (Compl. ¶45). Another image depicts the side pocket of the "Swoosh Pocket Bra" (Compl. ¶58). NIKE’s marketing materials allegedly state the pockets can hold a “phone, a snack or an extra layer” (Compl. ¶52). These products are sold through NIKE's own website and retail stores, as well as third-party retailers such as DICK'S Sporting Goods and Backcountry.com (Compl. ¶49, 51, 64).

IV. Analysis of Infringement Allegations

Infringement Allegations: U.S. Patent No. 10,219,550

Claim Element (from Independent Claim 8) Alleged Infringing Functionality Complaint Citation Patent Citation
a pocket bra comprising: a strap assembly comprising a chest strap; and comprising left and right cups, each cup being an area to receive a breast of a wearer and having inside and outside surfaces... The "Swoosh On The Run" is alleged to be a pocket bra with a strap assembly and left and right cups designed to receive a breast (Compl. ¶82). ¶82 col. 5:45-50
a patch forming a pocket operatively associated with at least one of the left and right cups, the patch having an upper edge, a lower edge, and an exterior edge... The product allegedly has a patch that forms a pocket on at least one of its cups (Compl. ¶82). The complaint includes a visual comparison of the accused product and a patent figure (Compl. ¶45, 46, p. 9). ¶82 col. 5:51-54
the lower edge of the patch coupled to the bra adjacent to a lower edge of the at least one of the left and right cups, and the exterior edge of the patch coupled adjacent to the exterior edge of the at least one of the left and right cups... The patch on the accused product is allegedly coupled to the bra along its lower and exterior edges adjacent to the corresponding edges of the cup (Compl. ¶82). ¶82 col. 5:55-60
a pocket opening formed along the upper edge of the patch being unconnected to the at least one of the left and right cups; the pocket opening capable of repeated receiving and removal of an item when being worn by the wearer... The accused product's pocket allegedly has an opening along its upper edge that is not connected to the cup and allows for repeated use (Compl. ¶82). ¶82 col. 5:60-65
wherein the upper edge of the patch crosses over a surface of the cup to form the opening, the upper edge crossing such that the opening faces the interior edge of the at least one of the left and right cup to which it is attached. The pocket opening on the accused product is alleged to be formed by the patch's upper edge crossing the cup surface, with the opening oriented to face the interior edge of that cup (Compl. ¶82). ¶82 col. 6:1-7

Infringement Allegations: U.S. Patent No. 9,808,036

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
a pocket bra comprising: a strap assembly comprising a chest strap; and comprising left and right cups, each cup being an area to receive a breast of a wearer and having inside and outside surfaces... The "Swoosh On The Run" is alleged to be a pocket bra with a strap assembly and left and right cups (Compl. ¶92). ¶92 col. 5:45-50
a patch forming a pocket...the patch having an upper edge, a lower interior body facing edge, and an opposite lower exterior edge... The accused product's pocket is allegedly formed by a patch having the claimed edge structures (Compl. ¶92). ¶92 col. 5:51-54
stitching coupling the lower interior body facing edge, and the opposite lower exterior edge of the patch to at least one of the lower, interior body facing, and opposite exterior edges of the at least one of the left and right cups, or the chest strap... Stitching on the accused product allegedly couples the lower edges of the patch to the lower edges of the cup or chest strap (Compl. ¶92). ¶92 col. 5:55-61
an opening formed along the upper edge of the patch; the opening capable of repeated receiving and removal of an item when being worn by the wearer... The accused product allegedly has a pocket opening along the upper edge of the patch that is capable of repeated use (Compl. ¶92). ¶92 col. 5:62-65
and wherein the upper edge of the patch crosses over a surface of the cup to form the opening, the upper edge of the patch being offset from an upper edge of the cup. The pocket opening on the accused product is allegedly formed where the patch's upper edge crosses the cup surface at a position that is vertically offset from the cup's own upper edge (Compl. ¶92). ¶92 col. 6:46-48

Identified Points of Contention

  • Scope Questions: For the '550 Patent, a central issue may be the construction of the phrase "opening faces the interior edge." The dispute may center on whether the orientation of the pocket opening on NIKE's products meets this directional requirement. For the '036 Patent, the meaning of the term "offset" will be critical. The question for the court will be whether any non-zero distance between the patch's upper edge and the cup's upper edge satisfies this limitation, or if a more substantial, material separation is required.
  • Technical Questions: A key technical question will be one of evidence. What specific evidence does the complaint provide to demonstrate that the accused products meet the precise geometric limitations of the claims? While the complaint includes side-by-side photographic comparisons of the accused bras and patent figures, such as the one juxtaposing a "Swoosh On The Run" bra with "FIG. 9 of the ‘288, ‘036, and ‘550 Patents" (Compl. p. 9), the infringement analysis will depend on whether plaintiff can prove, through detailed analysis, that the physical construction of the products embodies limitations like "offset" and "faces the interior edge."

V. Key Claim Terms for Construction

Term: "opening faces the interior edge"

  • Source: '550 Patent, claim 8
  • Context and Importance: This term defines the orientation of the front pocket's opening. Infringement of claim 8 hinges on whether the opening on the accused "Swoosh On The Run" bra is directed inward, toward the center of the wearer's chest, as this language requires. Practitioners may focus on this term because its interpretation will determine if the specific geometry of the accused product falls within the claim's scope.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The specification does not provide an explicit definition of "faces." A party could argue it simply means the opening is not oriented vertically, horizontally, or outwards, and any generally inward-angled opening would suffice.
    • Evidence for a Narrower Interpretation: The preferred embodiment shown in Figure 9 of the '550 Patent depicts the pocket opening (252) angled distinctly toward the bra's central gore (230). A party could argue that "faces" requires the specific inward directionality shown in the drawing, not merely any non-outward orientation.

Term: "offset from an upper edge of the cup"

  • Source: '036 Patent, claim 1
  • Context and Importance: This limitation describes the vertical placement of the pocket's top opening relative to the top edge of the bra cup. The infringement determination will depend on whether a measurable vertical distance exists in the accused products. Practitioners may focus on this term because it appears to be a key point of novelty distinguishing the claimed invention.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The term "offset" is not explicitly defined with a required magnitude. A party could argue that any measurable, non-zero distance, however slight, between the patch's upper edge and the cup's upper edge meets this limitation.
    • Evidence for a Narrower Interpretation: The patent figures, such as Figure 9 of the '036 Patent, illustrate a clear and noticeable space between the patch's upper edge (252) and the cup's upper edge (226). A party could argue that "offset" implies a structurally significant and visually apparent separation, as depicted in the embodiment, rather than a trivial or incidental distance.

VI. Other Allegations

Indirect Infringement

The complaint alleges active inducement of infringement against NIKE (Compl. ¶50, 95). The factual basis for this claim is NIKE's marketing materials, website, and product instructions which allegedly encourage and instruct customers to use the accused bras in an infringing manner—specifically, by inserting items like phones into the pockets, thereby performing the final step of the claimed methods (Compl. ¶52, 83, 93).

Willful Infringement

Willfulness is a central allegation in the complaint, asserted for all infringement counts. The claim is based on extensive alleged pre-suit knowledge, including Plaintiff's 2015 and 2017 "Idea Submissions" to NIKE, direct email correspondence with NIKE's IP licensing executive in 2017, and three formal notice-of-infringement letters sent by counsel between 2021 and 2023 (Compl. ¶21, 25, 31, 38-40). The complaint further alleges that NIKE's own patent filings on similar technology, occurring shortly after communications with Plaintiff, are evidence of deliberate copying (Compl. ¶30, 32).

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

  • A core issue for the fact-finder will be one of intent and independent development: given the extensive history of communications alleged in the complaint, can NIKE establish that its pocket bra designs were developed independently of SherryWear's patented technology, or will the evidence support a finding of deliberate copying and willful infringement?
  • The case will also turn on a question of definitional precision: can the specific geometric and structural limitations in the claims, such as a pocket opening that "faces the interior edge" ('550 Patent) or is "offset from an upper edge of the cup" ('036 Patent), be construed and proven to read on the physical construction of NIKE's various sports bra models?
  • A key evidentiary question will be one of feature-by-feature mapping: with eight patents covering distinct features (front, side, and back pockets) asserted against multiple product lines, the litigation will require a meticulous technical analysis to determine if each accused product contains the specific elements required by each patent asserted against it.