December 13, 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."
The defendants had argued for "a small, thin, flexible flesh-colored device that covers the nipple and extends a short distance beyond the nipple and areola and that is not intended to replace or enhance a woman's breast and is not intended to provide support to the breast."
The judge found Black's language more to the point, adopting: "an article for covering the nipple that extends beyond the nipple and areola; is unsupported by attached straps around the neck, back, shoulders or arms; and does not replace or substantially enhance the apparent size of a woman's breast."
Bragel International makes "NuBra," sold by six retailer defendants: Victoria's Secret, Nordstrom, the Gap, Neiman Marcus, Dillard's, Federated Department Stores, and Ce Soir Lingerie.
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.
Posted by Patent Hawk at December 13, 2007 12:48 AM | Claim Construction
Plaintiff's changed counsel recently in this case - they lost a pretty good attorney, one who was very convincing at the Markman hearing. We'll see how that changes things in the case.
Posted by: Anonymous at December 13, 2007 5:54 PM