PTAB

IPR2024-01125

Nike Inc v. SherryWear LLC

Key Events

Petition

petition

Title: Pocket Bra and Bra Pocket System
Brief Description: The ’036 patent relates to a brassiere featuring pockets integrated into the bra cups for storing personal items. The invention claims a bra with a chest strap, left and right cups, and a patch attached to at least one cup to form a pocket with an opening offset from the cup's upper edge.

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, filed in 1968, discloses all key elements of independent claims 1 and 6. Barg teaches a conventional bra with a body portion (chest strap), left and right cups, and a patch ("inner section 18") attached to the inner surface of each cup to form a pocket for "storing valuables." The pockets in Barg have openings along their upper edges, which are offset from the upper edge of the bra cups. For any claim limitations requiring explicit "stitching," Petitioner asserted that while Barg discloses attaching the patch "in any convenient and efficient manner," Pintor explicitly teaches attaching a pocket to a bra cup using stitching.
- Motivation to Combine: A Person of Ordinary Skill in the Art (POSA) would combine Barg's pocket bra design with Pintor's teaching of stitching. Petitioner contended that stitching is a simple, effective, and economical method for attaching fabric pieces, and Pintor confirms its use for the exact purpose of creating a pocket on a bra. This would have been a predictable and obvious choice for a POSA implementing Barg's design.
- Expectation of Success: A POSA would have a high expectation of success, as the combination involves applying a well-known attachment method (stitching) to a well-known garment (a bra), both of which are disclosed in the prior art for the same purpose.

Prior Art Relied Upon: York (Patent 2,920,628) and Pintor (Patent 7,753,759).
Core Argument for this Ground:
- Prior Art Mapping: Petitioner asserted that York, filed in 1958, discloses a conventional bra with a chest strap, cups, and a pocket on the interior surface of one breast cup for valuables like jewelry or money. York's pocket is formed by a stitched panel, creating an opening along its upper edge that is offset from the cup's upper edge. Petitioner argued that claims reciting a second pocket (e.g., claims 10 and 18) would have been obvious, as duplicating a known feature to increase storage capacity is a simple design choice. Pintor was cited as further evidence of bras with pockets for non-padding items.
- Motivation to Combine: A POSA would be motivated to modify York by adding a pocket to the second cup. The motivation is straightforward: to increase the amount of storage space for valuables, which is the stated purpose of the pocket in York. This would be an obvious and predictable improvement.
- Expectation of Success: There would be a high expectation of success in adding a second pocket, as it involves the simple duplication of an existing feature to achieve a predictable result (more storage) without changing the fundamental operation of the device.

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 a chest strap, left and right multi-ply cups, and a built-in pocket on the back of each cup. The pockets in Handras are formed by a sewn fourth ply of material and are designed to hold items like credit cards and cell phones. Petitioner contended that Handras teaches every element of the independent claims except potentially the precise shape of the pocket's upper edge. While Handras shows a curved upper edge, Petitioner argued that modifying this to a linear or straight edge would be an obvious design choice.
- Motivation to Combine: A POSA would be motivated to modify the pocket edge shape in Handras from curved to linear to better and more securely accommodate rectangular items like cell phones or credit cards, which Handras explicitly teaches are intended to be stored in the pockets. This modification represents a simple and predictable design choice rather than an inventive step. Pintor was also cited as disclosing pocket shapes.
- Expectation of Success: A POSA would have a high expectation of success in modifying the pocket shape, as it is a routine design modification well within the skill of an ordinary artisan in apparel design. The technology is simple, and the result of the modification would be predictable.

Petitioner argued that discretionary denial under 35 U.S.C. §314(a) based on Fintiv factors is inappropriate. It contended that the Final Written Decision (FWD) in the IPR would likely issue before a trial in the parallel district court litigation, which is in its early stages with limited investment of resources.
Petitioner also argued against denial under 35 U.S.C. §325(d). It asserted that the primary prior art references (Barg, York, and Handras) were never considered during prosecution. Although Pintor was considered, it was only as a secondary reference to a non-analogous patent for bra padding (Newman). Petitioner claimed the Examiner materially erred by failing to consider Pintor in combination with more pertinent art directed to storage, warranting a new review of the claims.

Petitioner requests institution of an inter partes review and cancellation of claims 1-10 and 18 of Patent 9,808,036 as unpatentable.