PTAB

IPR2024-01123

Nike Inc v. SherryWear LLC

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Petition
petition

1. Case Identification

2. Patent Overview

  • Title: Bra Pocket System Combination
  • Brief Description: The ’288 patent discloses a brassiere system featuring pockets integrated into the bra cups. The system includes a standard strap assembly, left and right cups, and a patch attached to each cup to form a pocket for holding small personal items like a handheld electronic device, keys, or pills.

3. Grounds for Unpatentability

Ground 1: Claims 1-4 and 11-12 are obvious over Barg in view of Pintor.

  • Prior Art Relied Upon: Barg (Patent 3,518,998) and Pintor (Patent 7,753,759).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that Barg, a 1968 patent, discloses the core elements of independent claim 1, including a conventional bra with a strap assembly, left and right cups, and a patch on the inner surface of each cup forming a pocket for "storing valuables." Petitioner contended that limitations not explicitly met by Barg, such as a "linear" upper edge for the pocket, were simple design choices or rendered obvious by Pintor, which discloses pockets with "substantially straight" openings. For dependent claims, Petitioner asserted that using materials like polyurethane foam (claim 2), elastic fabric for the patches (claim 3), and adding an underwire (claim 4) were well-known and obvious modifications, as taught by Pintor and general knowledge in the art.
    • Motivation to Combine: A Person of Ordinary Skill in the Art (POSA) designing a pocketed bra would look to the prior art for known solutions. A POSA would combine Barg's design for large, accessible pockets with Pintor's teachings on comfortable materials (polyurethane cups) and elastic pockets to create a more commercially desirable product that incorporates the benefits of both references.
    • Expectation of Success: A POSA would have a high expectation of success as the combination involves integrating known, predictable elements (e.g., materials, pocket shapes, underwires) into a conventional bra structure, with each element performing its known function.

Ground 2: Claims 1-4 and 11-12 are obvious over York in view of Pintor.

  • Prior Art Relied Upon: York (Patent 2,920,628) and Pintor (Patent 7,753,759).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that York, a 1958 patent, discloses a conventional bra with a strap assembly, cups, and a "pocket forming panel" stitched to the interior surface of a cup to hold valuables. While York only discloses a pocket on one cup, Petitioner asserted it would have been obvious to include pockets on both cups to increase storage space. As in Ground 1, Petitioner contended that Pintor renders obvious the use of a "linear" pocket opening and specific materials. York’s disclosure of a snap fastener was argued to teach a "closure over the linear opening" as required by claim 12.
    • Motivation to Combine: A POSA would be motivated to improve upon York's basic design by incorporating more modern features known in the art. Pintor provided teachings for these improvements, such as using polyurethane for more comfortable cups (claim 2) and elastic fabric for the pocket to better accommodate various items (claim 3), making the combination a logical and predictable design progression.
    • Expectation of Success: The expectation of success would be high because combining York's pocketed bra concept with Pintor's teachings on materials and features represented routine modifications within the established skill set of a POSA.

Ground 3: Claims 1-4 and 11-12 are obvious over Handras in view of Pintor.

  • Prior Art Relied Upon: Handras (Application # 2014/0051331) and Pintor (Patent 7,753,759).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that Handras discloses a modern bra with all primary features of claim 1, including a chest and shoulder strap assembly, left and right cups, and a "fourth ply of material" sewn to the inner ply of the cup to form a built-in pocket. Handras explicitly teaches the pockets can hold items like "credit cards, car keys, cell phones and the like." Handras also discloses an underwire, directly teaching the limitation of claim 4. For the remaining limitations, such as a "linear" upper edge and specific cup materials, Petitioner argued these were obvious modifications in view of Pintor and the general knowledge of a POSA.
    • Motivation to Combine: A POSA would combine Handras and Pintor to optimize the design for consumer preferences. While Handras teaches a functional pocketed bra, a POSA would be motivated by Pintor's teachings to use specific materials like closed-cell polyurethane foam for the cups or elastic fabrics for the pockets to improve comfort and functionality, which are known commercial drivers.
    • Expectation of Success: Success would be highly expected, as the proposed modifications involve substituting known materials and slightly altering pocket shapes, all of which are predictable and routine adjustments for a designer of bras and apparel.

4. Arguments Regarding Discretionary Denial

  • §314(a) (Fintiv Factors): Petitioner argued against discretionary denial under Fintiv, stating that a Final Written Decision (FWD) in the IPR would likely issue before a trial in the parallel district court litigation. The Petitioner asserted that investment in the litigation has been limited, with fact discovery in early stages, and that institution would simplify the district court case and promote efficiency.
  • §325(d): Petitioner contended that denial under §325(d) would be improper because the petition raises new arguments and art combinations not considered during prosecution. Although the Examiner considered Pintor, it was only as a secondary reference to a different primary reference (Newman) that was directed to bra padding, not storing personal items. Petitioner argued the Examiner materially erred by failing to consider Pintor in combination with more pertinent prior art like Barg, York, and Handras, which are all explicitly directed to bras with pockets for valuables.

5. Relief Requested

  • Petitioner requests institution of an inter partes review and cancellation of claims 1-4 and 11-12 of the ’288 patent as unpatentable under 35 U.S.C. §103.