Utility Patents in Fashion Design? Nike and Huzu break new ground | Knobbe Martens


What is a utility patent?

Utility patents cover a new and useful process, machine, manufacture or composition of matter. Design patents are much more common in the fashion industry because design patents protect the aesthetic characteristics of a useful invention. Utility patents protect the functional aspects of a useful invention and provide 20 years of exclusivity, while design patents protect aesthetic features and provide only 15 years of exclusivity.

When would a fashion designer want a utility patent?

A fashion designer would want a utility patent if they’ve invented something new and useful, think of a collapsible shoe, wrinkle-resistant garment, or handbag with an interchangeable liner.

Utility patents are not widely used in the fashion industry for the main reason that most of the functional aspects of clothing designs are (a) not new or (b) obvious. For example, although Diane Von Fürstenberg is often credited with inventing the “wrap dress” in the 1970s, several utility patents were issued decades earlier for a wrap dress, including U.S. Patent No. 2,091,084. :[1]

Even the type of fabric used by designers rarely adds novelty to the garment. Although utility patents in the fashion industry are not as common as in other industries, inventions do occur and inventors file utility patents. Some of the recently issued utility patents in the fashion industry relate to footwear, such as Nike’s “automatic lacing system” found in U.S. Patent No. 8,769,844:

Utility patents also relate to new types of fabrics or coating processes which increase softness or reduce flammability. For example, US Patent No. 7,713,891 relates to a method of treating a fabric to render it flame retardant or US Patent No. 7,695,812 relates to flexible elastic fibers based on polyolefin.

Any useful invention which is not already known and which is not obvious is eligible for a utility patent. While a utility patent can be obtained, it confers many benefits on the owner. Utility patents offer exclusivity for 20 years from the date of filing, which can give a designer a competitive advantage. Utility patents also convey a company’s sophistication and can increase a company’s valuation and licensing potential. In addition, a utility patent can discourage other companies from producing a product covered by the patent or deter other patent holders from suing your company, and thus result in mutually beneficial cross-licensing agreements.

Another example of a utility patent for the fashion industry is the subject of a recent case filed by Huzu, LLC against Nine Line Apparel. Huzu has a registered patent for “Clothes with a pocket”. U.S. Patent No. 9,445,637. The Huzu patent relates to “an article of clothing having a front panel, a pocket and a pocket in a certain arrangement” where “the pocket may be adapted to receive a beverage container”.

The Huzu patent includes among others the following image:

Huzu alleges that the Nine Line Apparel “Tailgate Hoodie” pictured below infringes at least two claims of its 29-claim patent.

To win, Huzu must prove that the Nine Line hoodie infringes at least one of its patent claims by “a preponderance of evidence.” Nine Line Apparel will likely respond to Huzu’s complaint by alleging that it does not infringe Huzu’s patent and / or that Huzu’s patent is invalid. Since patents are presumed valid, proving that a patent is invalid requires a higher legal standard of “clear and convincing evidence”. So, Nine Line Apparel has a difficult burden if it tries to prove that Huzu’s patent is invalid.

Although utility patents are not as common in the fashion industry as in other industries, all inventions begin with an idea. Fashion designers have no shortage of creative ideas, so keep inventing!

[1] Note that in a utility patent, the claims of the patent are important in defining the scope of the patent. Although the photographs are provided for illustrative purposes, one should consult the full text of the patent to understand the background and scope of the patent.

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