Patents in the fashion industry
The case of Stretchline Intellectual Properties Ltd (‘Stretchline’) and H&M Hennes & Mauritz UK Ltd (‘H&M’) is about:
- The use of a patented fabric; and
- The method of producing this fabric.
In particular, the case is about the use of the fabric in underwear garments, e.g. brassieres.
In 2011, Stretchline brought a claim against H&M for brassieres sold by H&M which infringed Stretchline’s patent. H&M denied infringement of the patent and counterclaimed for patent revocation. Following mediation, these claims were later settled through a settlement agreement.
Two years later, Stretchline discovered H&M selling brassieres that infringed their patent. Stretchline commenced legal proceedings, alleging breach of the settlement agreement and patent infringement. In its defence, H&M asserted that the garments did not infringe Strechline’s patent and counterclaimed that Strechline’s patent was invalid.
The judge struck out H&M’s invalidity defence and counterclaim. This was on the basis that the settlement agreement precluded H&M from raising the issue of invalidity in these proceedings. The decision was appealed and, following the decision from the appeal judgement, Stretchline discontinued its claim for infringement. Stretchline continued to persue its claim for breach of the settlement agreement by H&M.
However, when the case was heard, the presiding judge decided that H&M had to infringe Stretchline’s patent. What’s more any sale of infringing garments by H&M would automatically breach the settlement agreement. The amount of damages and costs has yet to be determined.
Stretchline Intellectual Properties Ltd v H&M Hennes & Mauritz UK Ltd
Stretchline, based in the British Virgin Islands, owns a patent for the method of manufacturing tubular fabric for use in bras. The patent aims to solve a classic problem with underwear bras: during machine washing the under-wiring comes loose and damages the bra. The patent claims an innovative method of fusing different yarns together to form a ‘penetration barrier’. This is a layer formed by melted adhesive and yarn bonding. This barrier better protects the underwire and so reduces the problem. Stretchline licenses this patent to bra-related businesses which use the tubular fabric method.
H&M, the Swedish fashion giant is one of the most popular brands on the UK high street.
Stretchline patent diagrams:
How the court decided
For the court to decide whether H&M breached the settlement agreement, it investigated the patent, in particular:
- Whether the garments sold by H&M contained a ‘penetration barrier’.
Any use of a ‘penetration barrier’ by H&M is automatically a breach of the settlement agreement’s terms. Here, H&M had agreed not to manufacture or sell any product which fell within Stretchline patent’s remit.
How did the judge conclude that H&M infringed the patent?
In deciding whether H&M infringed the patent the judge examined:
1. The technical matter used in the construction of the patent
This is determined by examining what a ‘person skilled in the art’ would understand from the language describing the invention(s) in the patent.
2. Person skilled in the art
A person skilled in the art, in this case, is one who has undergone technical education and training in the textile technology field. The person understands how to incorporate different yarns into a woven structure, and has knowledge and experience of textile manufacturing techniques.
There is no dispute about the person to whom the patent is addressed. To understand the patent and establish similarities with H&M’s garments, three expert witnesses skilled in the art were examined. They were cross-examined on the basis of their expert reports which included the industry’s common general knowledge relating to the patented fabric.
It was accepted that H&M is not involved in the garment manufacture. The judge accepted that H&M, as a retailer, did not know the relevant facts about the composition of the alleged infringements. However, if a defendant does not admit and elects to pursue a case of non-infringement, it needs to find out the relevant facts.
Stretchline conducted experiments to establish infringement and relied on some images which, they claimed, showed the presence of the patented fabric.
How the judge decided that H&M breached the settlement agreement.
Stretchline’s evidence was sufficient to prove infringement. The judge then looked at the settlement agreement’s terms.
Accordingly, it was found that H&M had agreed not to sell any product which fell within any of the claims of the patent. In accordance H&M had paid an agreed sum to Stretchline in 2011. Subsequently, H&M was given a concession and allowed a sell-through period for its remaining stock.
Therefore, any further sale of garments by H&M breached the settlement agreement, and would automatically infringe Stretchline’s patent.
How to protect your intellectual property in your fashion business?
Patents generate a long-term investment return. Generally, they work less well in fast paced industries, such as fashion. However this may change as wearable fashion technology becomes mainstream.
Patents can take some time to be granted. Filing fees are expensive, as is maintaining registrations. Thus in fashion, patents are only really useful for new manufacturing processes or new fabrics.
Registered designs are usually a more useful protection for the fashion industry. Design registration can offer protection to a products’:
- Surface decoration such as a fabric pattern or stitching design.
This case highlighted the importance of policing and constantly monitoring the market to protect your intellectual property.