Patent Law

Randi Black patent invalidated in ED Texas; nipple covers obvious

By Lawrence B. Ebert, Esq.

Judge John D. Love of the United States District Court for the Eastern District of Texas granted summary judgment dismissing a lawsuit by Randi Black, owner of a patent that teaches a method to cover a nipple. Judge Love found the patent to be invalid because it was an obvious combination of teachings from prior patents.

IPBiz notes that there are apparently some patents that ED Texas does not like.

The winning defendants were Victoria's Secret Stores, LLC; Nordstrom, Inc.; The Neiman Marcus Group, Inc.; Gap, Inc.; Federated Department Stores, Inc.; Dillard's, Inc.; Bragel International, Inc.; and Ce Soir Lingerie Co., Inc., who were marketing NuBra(R).

***US 7,152,606

A method of covering a nipple on a human breast, the nipple cover having a center and including a flexible material for conforming to a human breast, the method including the method steps of placing the nipple cover directly on a human breast so as to cover at least about one half and less then all of the breast, with the center of the cover proximate the nipple; the nipple cover having a first thickness proximate the center and a second thickness proximate a periphery thereof, the thickness of the nipple cover gradually tapering from the first thickness to the second thickness, wherein the method further includes the step of being the nipple cover on the breast such that the periphery of the cover blends smoothly with a curved portion of the breast while concealing a nipple shape.

***Merely fyi:

US 6,350,175 [not cited on front page of '606 patent]

A flexible material having adhesive coated over a major portion of one side, which may then be adhered to a nipple or protrusion in a manner that allows the adhesive to directly contact the nipple (or protrusion) as well as the immediately surrounding areola and skin surface. The adhesion between the fabric and the skin, from the areas surrounding the nipple to the center of the nipple itself, creates a continuous, substantially flat (or, more particularly, a continuous curve that follows the natural curve of the surrounding tissue) profile. A preferred configuration for the device of the present invention is also provided, which reduces folding and buckling of the device as applied.

The Patent Hawk blog had written on 13 Dec. 2007:

Randi Black's 7,152,606 covers a nipple cover, one that got good coverage from Eastern District of Texas Judge John Love's Markman hearing, adopting most of the language the plaintiff preferred on the crucial term "nipple cover." The defendants had argued for an unreasonably narrow construction.

Black maintained that a nipple cover should be construed as "an article for covering the nipple on a human breast, that is not supported by attached straps around the body or by a brassiere, that is smaller than a brassiere, and that does not substantially enhance the apparent size of a woman's breast."

In a case ultimately won by the defendants, Patent Hawk argued for settlement:

The case has not gone well for the defense: losing a motion to limit discovery, so as to hide profits; as well as losing a summary judgment motion attempting to invalidate the patent because of an unintentional abandonment.

If no prior art invalidation position can be developed to cover the nipple of infringement, the smart move would be to settle, but smart is rare.

Full post as published by IPBiz on August 21, 2008 (boomark / email).