PTAB

IPR2016-00396

Nike Inc v. Point 3 Basketball LLC

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Petition
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1. Case Identification

2. Patent Overview

  • Title: Moisture Control Garment
  • Brief Description: The ’716 patent relates to athletic apparel for moisture management. It discloses a garment constructed from a primary moisture-wicking (hydrophobic) material that includes strategically placed sections of a secondary moisture-absorbing (hydrophilic) material, allowing an athlete to wipe away sweat from their hands or face.

3. Grounds for Unpatentability

Ground 1: Obviousness over Rogers, Zuo, and Frontczak-Wasiak - Claims 1-12 and 14-15 are obvious over Rogers in view of Zuo and Frontczak-Wasiak.

  • Prior Art Relied Upon: Rogers (Canada Published Patent Application 2,284,156A1), Zuo (a 2004 journal article on heat transfer in sports apparel), and Frontczak-Wasiak (a 2004 journal article on terry woven fabrics).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that Rogers teaches the fundamental concept of the ’716 patent: a sports garment (e.g., a uniform) made predominantly from a "popular non-absorbent material" with absorbent panels strategically placed in locations convenient for a wearer to wipe their hands or face. Petitioner asserted that Rogers discloses the base garment, the use of separate absorbent sections, and their functional placement. The primary limitations not explicitly taught in Rogers were the specific use of "moisture-wicking" fabric for the main body and the claimed thickness difference of "0.25 inches or less" between the two materials.
    • Motivation to Combine: Petitioner contended a person of ordinary skill in the art (POSITA) at the time of the invention would have been motivated to construct the "non-absorbent" garment of Rogers using the thin, synthetic moisture-wicking fabrics described by Zuo. Such fabrics were commonplace in athletic wear and known to enhance comfort and performance by pulling moisture away from the skin. Likewise, a POSITA would have been motivated to use the thin, lightweight absorbent terry cloth materials described by Frontczak-Wasiak for the wiping panels. The motivation stemmed from improving garment comfort, reducing weight, ensuring fast drying, and following established industry practices of using compatible materials for athletic apparel.
    • Expectation of Success: A POSITA would have a high expectation of success because the combination involved using well-known materials (wicking polyesters and absorbent terry cloths) for their intended and well-understood purposes in sportswear. Combining these known thin materials would predictably and inherently result in a garment where the thickness difference between the layers was less than the claimed 0.25 inches.

Ground 2: Obviousness over Smith, Zuo, and Frontczak-Wasiak - Claims 1-6, 9, 11-12, and 14 are obvious over Smith in view of Zuo and Frontczak-Wasiak.

  • Prior Art Relied Upon: Smith (Patent 5,014,360), Zuo (the 2004 journal article), and Frontczak-Wasiak (the 2004 journal article).

  • Core Argument for this Ground:

    • Prior Art Mapping: Petitioner argued that Smith discloses a lightweight sports shirt designed for tennis, featuring absorbent material (such as terry cloth) integrated into the sleeves. This placement allows a player to wipe perspiration from their brow by raising their arm. Smith suggests the main body of the shirt can be made from typical sportswear materials, including synthetics.
    • Motivation to Combine: A POSITA would combine Smith’s teachings with the knowledge in Zuo and Frontczak-Wasiak. To fulfill Smith's goal of a "lightweight" shirt that does not "restrict motion," a POSITA would naturally select the thin, synthetic wicking materials shown in Zuo for the shirt's main body and the thin, absorbent terry materials from Frontczak-Wasiak for the sleeve panels. This combination would enhance athletic performance and comfort, which are key drivers in sportswear design.
    • Expectation of Success: The combination was a predictable application of known technologies. Using thin, lightweight materials to create a high-performance athletic shirt was a standard design goal, and the outcome—including the inherent thickness difference of less than 0.25 inches—was entirely predictable.

  • Additional Grounds: Petitioner asserted additional obviousness challenges, including a combination of Rogers, Zuo, Frontczak-Wasiak, and Kohen (Patent 3,045,245) to more explicitly teach a stitched air layer (claim 6), and a separate ground based on Morgan (GB 1,403,342), which also disclosed sports shorts with absorbent panels.

4. Key Claim Construction Positions

  • "The Substantial Majority of the Garment" (Claim 1): Petitioner argued this term is indefinite under 35 U.S.C. §112. The petition asserted that the patent specification and prosecution history provide no objective standard or guidance for determining what proportion of the garment constitutes a "substantial majority," rendering the scope of the claim unascertainable.
  • "...fibers of the first material and the fibers of the second material are positioned within the garment in the same direction" (Claim 10): Petitioner proposed that a POSITA would understand this phrase to mean aligning the underlying fabric structure of the two materials (e.g., the course and wale of knit fabrics). This alignment is a common and necessary practice in garment manufacturing to prevent warping and ensure the garment moves and drapes correctly, especially when combining different fabric types.

5. Key Technical Contentions (Beyond Claim Construction)

  • Petitioner contended that the claimed functional cooperation between the two materials—where the wicking fabric wicks moisture away from the absorbent fabric, and the absorbent fabric absorbs moisture from the wicking fabric—is an inherent property of placing such materials adjacent to one another. This well-known "push-pull" moisture management mechanism is dictated by physics and was understood in the art long before the invention. Therefore, Petitioner argued this claimed functionality is not a patentable feature but an inevitable and inherent result of the obvious combination of prior art elements.

6. Relief Requested

  • Petitioner requests institution of an inter partes review and cancellation of claims 1-12 and 14-15 of Patent 8,769,716 as unpatentable.