TROLLS IN COURT
Lululemon bra suit struggles to find support
High-priced lawyers squared off in a federal appeals court on Wednesday to argue over a $68 sports bra.
Lululemon, the popular yoga wear maker, stands accused by a Boston patent troll of stomping over its rights as it affixed a pocket to its in-demand Run: Stuff Your Bra sports top.
The patent troll, Blackbird Technologies, sued Lululemon in 2014, claiming its patent for a pocket laminated to the front of a sports bra covered the yoga maker’s product — even though the Stuff Your Bra pocket, big enough for a smartphone, is sewn into the front of the product.
Well, lawyers for Blackbird argued in court, laminated means “sewn or otherwise united.”
You have to be kidding, Lululemon’s legal eagle replied. If that’s the case, Blackbird’s patent would cover every type of method of attaching a pocket to a sports bra.
Lamination, the chain’s lawyers told Judge Richard Andrews last year, is a term of art and not to be confused with sewing.
The judge agreed, and he ruled that Blackbird’s definition of laminated was overly broad.
The judge dismissed Blackbird’s suit. The troll appealed, and the two sides squared off in a Delaware federal appeals court on Wednesday.
The appellate panel took the case under advisement.
Blackbird doesn’t make a competing bra — or any products, for that matter — but owns the patent to a “sports bra with an innovative storage compartment.”
Three years ago, Blackbird sued Lululemon along with Asics, Swoob and Zoot Sports over the same pocket design. All but Lululemon settled. And no wonder. The $3.5 billion US sports bra industry now accounts for 25 percent of the entire bra market, up from about 6 percent in 2012.
“The athletic apparel sector is very large and lucrative,” said Susan Scafidi, founder and academic director of the Fashion Law Institute at Ford- ham Law School. “It doesn’t surprise me that there would be a patent troll in the fashion industry now.”
Blackbird acquires patents from inventors, including Nancy-Jane Sweeney, who developed the sports bra pocket patent at the center of the litigation, and shares a portion of its settlements with the inventors.
The company did not return calls or an e-mail for comment. Sweeney could not be reached either.
Patent trolls are more common in the tech sector and rarely seen in the fashion industry, according to Richard Rochford, the head of the intellectual property litigation practice at Haynes and Boone.
Blackbird has sued its share of tech companies, including Amazon, Fitbit, Netflix and others.
Lululemon has also sued rivals over patents. It sued Under Armour last year, claiming four interlacing back straps of several sports bras sold by the athletic apparel chain were too similar to its $52 Energy Bra. That case was settled. “Lululemon has been a pioneer and poster child for patents in fashion,” said Scafidi. “It’s ironic for them to find themselves on the other side of a design lawsuit.”
Lululemon declined to comment for this story.