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Plew v. Limited Brands

August 4, 2010



Plaintiff Katerina Plew ("Plew" or "Plaintiff") brings this action against Limited Brands, Inc., Intimate Brands, Inc., Limited Brands Store Operations, Inc., Victoria's Secret Stores Brand Management, Inc., Victoria's Secret Direct Brand Management, LLC and Victoria's Secret Stores, LLC (collectively "VS" or "Defendants"). Plaintiff asserts that the Defendants' Very Sexy 100-Way Brassiere ("100-Way Bra") infringes Plaintiff's U.S. Patent no. 6,733,362 (the "'362 patent"), which describes an adjustable type of brassiere. Defendants counterclaim for a declaration of invalidity of the '362 patent. The Court has jurisdiction of the statutory claims pursuant to 28 U.S.C. § 1331.

Two summary judgment motions by Defendants are now before the Court. In the first, Defendants seek a determination pursuant to 35 U.S.C. § 103 that Plaintiff's '362 patent is invalid for obviousness. In the second, Defendants seek a determination that their accused garment does not infringe the '362 patent. The Court has reviewed thoroughly all of the parties' submissions and, for the reasons explained below, both of Defendants' motions are denied.


The following material facts are undisputed, except where noted. Plaintiff could not accommodate the straps of a dress she was wearing with the market's current brassieres, and conceived of an idea for a brassiere with multiple strap configurations. (Defs.' 56.1 St. ¶ 1.)*fn1

Plaintiff filed an Invention Disclosure with the United States Patent and Trademark Office ("USPTO") on May 1, 2000. (Defs.' 56.1 St. ¶ 3.) On June 18, 2002, Plaintiff filed an application with the USPTO that contained 12 claims. (Defs.' 56.1 St. ¶ 11.) The USPTO rejected claims numbered 1-6 and 10 under 35 U.S.C. § 102(b) on the ground that they were anticipated by another patent. (Defs.' 56.1 St. ¶ 13.) The USPTO allowed claims numbered 7-9 to be rewritten as independent claims because those claims were not found in the cited references. (Defs.' 56.1 St. ¶ 14.) Plaintiff complied and amended claim no. 1 of her patent application to include those allowable claims. (Defs.' 56.1 St. ¶ 16.)

Claim no. 1 of Plaintiff's patent as granted is directed to a brassiere with slits cut into a piece of fabric along the brassiere cups and torso bands which allow the hooks of shoulder straps to be attached at any point. (See Defs.' 56.1 St. ¶ 28.) Material hides the loops from sight and prevents the metal hooks from touching the skin of the wearer. (See Defs.' 56.1 St. ¶ 28.) The brassiere also includes two fabric loops in the space between the cups of the brassiere which the brassiere straps can be attached to create a V-neck silhouette. (See Defs.' 56.1 St. ¶ 28.) Claim 1 is the only independent claim of the patent. The parties have stipulated to the construction of claim 1 as a means-plus-function term under 35 U.S.C. § 112 ¶ 6. (See docket entry no. 33; Defs.' 56.1 St. ¶ 19; Von Simson Decl., Ex. O.)

Convertible bras of various styles have been on the market for decades. (See Defs.' 56.1 St. ¶ 10; Zinna Decl. A- J, Ex. H)*fn2 . However, the USPTO allowed Plaintiff's amended patent on October 27, 2003, stating that "[n]one of the cited references, alone or in combination, disclose a brassier[e] with a strip of fabric loops placed across and hidden by an upper edge of the brassier[e] including in between the cups and the further improvement of a means of an upper strip of material overlying the strip of fabric loops for preventing discomfort to the wearer as claim [sic] in claim 1." (Defs.' 56.1 St. ¶ 19.)

Plaintiff approached companies, including VS, to market her patented invention by having her cousin, Ms. Maria Zarkadas, mail DVD materials, send emails and make telephone calls. (Pl.'s 56.1 St. ¶¶ 10-17.) Ms. Zarakadas and Plew communicated with VS and scheduled a meeting with Mr. James Pappas, Senior Vice President for Production Sourcing at Victoria's Secret Stores. (Pl.'s 56.1 St. ¶¶ 10-17.) This meeting was later cancelled. (Pl.'s 56.1 St. ¶ 17.)

VS sells the 100-Way Bra, which has straps that can be configured 100 different ways. (Defs.' 56.1 St. ¶¶ 30, 39.) The 100-Way Bra was designed by DB Apparel UK, Ltd., a company with a commercialization relationship with v. (Pl.'s 56.1 St. ¶ 27.) The 100-Way Bra has a clear center bridge between the cups, which creates a space in between them. (Defs.' 56.1 St. ¶ 37.) The brassiere includes elastic tapes with loops along the edges of the brassiere cups and torso bands that enable the wearer to attach the shoulder straps in numerous locations. (Defs.' 56.1 St. ¶¶ 33, 34.) These loops extend up to the bridge. (Defs.' 56.1 St. ¶¶ 33, 38.) The hooks do not touch the wearer's skin because the elastic tapes prevent them from doing so. (Defs.' 56.1 St. ¶ 46.)

Plaintiff and Defendants proffer expert testimony that conflicts as to whether the techniques utilized in prior patents are the same as those used in Plew's invention and as to whether the prior art teaches away from Plew's patent. (See Chin Decl., Ex. J, ¶¶ 3, 5; Defs.' 56.1 St. ¶¶ 48-59; Zinna Decl. A-J, Ex. B). The parties also present conflicting expert evidence as to whether it would have been obvious to one of ordinary skill in the art to combine the elements claimed in Plew's patent. (See Chin Decl., Ex. B, 236-37; Chin Decl., Ex. J, ¶ 4).

In support of their non-infringement argument, Defendants assert that the 100-Way Bra has substantially different structures from the patented brassiere and thus does not infringe Plew's patent claims. (See Defs.' 56.1 St. ¶¶ 30-47.) Plaintiff's expert, Beverly Johnson, asserts that the 100-Way Bra accomplishes the same function as Plew's invention through identical or equivalent structures. (Von Simson Decl., Exs. M, N.)


Summary judgment is to be granted in favor of a moving party where the "pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The moving party bears the burden of establishing that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is considered material "if it 'might affect the outcome of the suit under the governing law,'" and an issue of fact is a genuine one where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). The Second Circuit has explained, however, that "[t]he party against whom summary judgment is sought . . . 'must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

Courts should approach motions for summary judgment for patent invalidity and infringement with great care because of the numerous fact issues involved. Andersen Corp. v. Pella Corp., 300 F. App'x 893, 899 (Fed. Cir. 2008) (invalidity), cert. denied, 129 S.Ct. 2739 (2009); Amhil Enters. Ltd. v. Wawa, Inc., 81 F.3d 1554, 1557-58 ...

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