- Alert: H&M loses appeal in bra fabric patent case (Stretchline v H&M Hennes)
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IP & IT analysis: This judgment concerned an appeal by H&M Hennes & Mauritz Ltd (H&M) against a decision that it had breached a settlement agreement with Stretchline Intellectual Properties Ltd (Stretchline) as a result of H&M continuing to sell bras which fell within Stretchline’s patent for tubular fabric, which addressed the problem of protruding underwire. The case concerned construction of the patent. Stretchline contended that the patent claimed a structure which, by reason of bonding of the fibres, was better able to resist penetration than would be the case if fusible yarn had not been used. H&M contended that the patent required the fusible yarn to create an identifiable, substantially continuous layer-like barrier or lining and that the layer had to form a substantially continuous liner which, as such, meant that it had not infringed the patent. The Court of Appeal held, among other things, that the specification did not bring to mind a continuous layer. The judge had made no finding that it was obvious to use fusible yarn to increase the penetration resistance of tubular fabric. Therefore, his finding that it was not common general knowledge to use fusible yarn to increase the penetration resistance of tubular fabric had not been inconsistent with his findings as to the known uses of fusible yarn. Whilst the claim of the patent was wider than underwired bras, there was no reason to suppose that the invention would be considered obvious when applied to any other type of tubular fabric. Accordingly, H&M’s appeal was dismissed.
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