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Thursday, 26 November 2015

Down the Tubes: H&M Breached Settlement Agreement by Infringing Patent

Cats are not known for their adherence to agreements, especially when their pet humans neglect their basic needs, such a belly rubs and the distribution of dry foodstuffs. Clearly, this bubble of contractual disregard only extends so far, and plays a big part in the expedient and less expensive rectification of any legal disputes between parties. When you agree to something, you should stick to it, but there are some grey areas and possible (unintentional) overlap post-settlement of any disputes. H&M were faced with such a scenario after an earlier settlement of a legal kerfuffle, decided by the High Court only last week.

The case of Stretchline Intellectual Properties Ltd v H&M Hennes & Mauritz UK Ltd [2015] EWHC 3298 (Pat) dealt with a UK patent concerning the tubular fabric in underwired garments such as brassieres [patent no. GB2309038], owned by the claimant Stretchline. They had brought a claim against H&M in 2010 for infringement of the patent, and after some judicial give-and-take the matter was settled in late 2011. Nearly two years later Stretchline initiated these proceedings, alleging that H&M were, yet again, selling infringing brassieres, including a claim for breach of contract in relation to the aforementioned settlement agreement. H&M alleged that the garments sold were not infringing, and that the patent was invalid. This defence was quickly struck out on the basis that the settlement agreement precluded them from pursuing such a claim, which lead to Stretchline only continuing with a claim for breach of contract.

Some penetration barriers cannot
prevent creatures with claws...

The focus of the patent was its first claim: "a method for making a tubular fabric comprising providing a support yarn and an elastomeric yarn; characterised in that a fusible yarn is also provided and in that the yarns are formed into a tubular fabric whereby the fusible yarn is arranged within the fabric tube so that it is capable of forming a penetration barrier." (emphasis added)


As highlighted, Stretchline alleged that the garments sold by H&M (bras called Devsel, Rimteks and Takefast) incorporated this feature, while H&M contended they did not, and what a 'penetration barrier' actually meant under claim construction. 
Per the precedent set in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46 (and other cases since), the question is "...what the person skilled in the art would have understood the Patentee to be using the language of the claim to mean"


Justice Carr, handing down the High Court's judgment, quickly set out that, as there was no contention between the parties as to who the 'skilled person' in the art would be, that it would encompass an individual who has undergone technical education and training in the field of textile technology, additionally understanding the subject matter dealt with in the patent in question.


H&M argued that, in the light of common general knowledge at the priority, the patent would be held invalid. Two expert witnesses were brought forth to discuss what was common general knowledge at the time, and although they both disagreed as to opinion, their differences were seen as minor. Justice Carr finally settled that "...[the] skilled person would have known at the priority date that it would not be practical to form a discrete layer from fusible yarn in a woven fabric", especially since it was 10 times more expensive than the patented counterpart used by Stretchline.



...although they can add some desired comfort

Ultimately, this argument was reject by the judge, as "...the Settlement Agreement precluded H&M from raising the issue of invalidity. It is clear from the judgment of Kitchin LJ... that H&M is precluded from raising, in its defence, a squeeze between non-infringement and invalidity"

After his contemplation on the common general knowledge of the material subject matter, H&M's alleged reliance on that knowledge, and the process and product descriptions (PPDs) provided by both parties, Justice Carr moved onto the question of infringement. In his mind, on the balance of probabilities, H&M's garments would infringe the patent. Their inclusion of fusible yarn to bond fabric together, which, if subsequently heated and cooled, would bond the filaments and yarn to form a resistive fabric layer against penetration within the meaning of claim 1. Images of H&M's garments confirmed this, although not for 100% of the included fabric. He
 saw therefore that H&M had infringed the patent, and subsequently breached the settlement agreement. 


One can have sympathy for H&M, as from a more positive stand-point, the inclusion of the fabric layer could have been a matter of omission or carelessness, but this only highlights the need to keep any agreements in mind in the production of future products incorporating or needing similar functionality. Nevertheless, the case is an interesting one, and for many of us male Kats, at least shows some insight into the world of women's garments in more depth.

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