Infringement

Posted on 30 March 2021

No Hugz for you: shapewear jeans patent held to be valid and infringed

The Intellectual Property Enterprise Court (IPEC)'s judgment in Freddy v Hugz Clothing Ltd & Ors is a rare example of a case running the gamut of trade marks, designs, patent infringement, threats and contractual claims.

Freddy owns the brand WR.UP, a line of jeans it markets as "body enhancing". These jeans straddle the line between conventional outerwear and traditional shaping underwear. Freddy's patent for its WR.UP jeans disclosed an arrangement of novel silicone inserts around the rear pockets in order to shape the body of the wearer, rather than the wearer having to use more common shapewear undergarments. Freddy had previously entered into a settlement agreement with Hugz as a result of Hugz having copied the WR.UP jeans and sold them. However, Hugz subsequently launched a second, slightly changed, version of these jeans which resulted in the case being brought to trial.

Deputy Judge David Stone found for Freddy in respect of almost every single one of its claims. It should be noted that Hugz solicitors came off the record before the trial and Hugz did not attend trial but Freddy requested a reasoned judgment on infringement.

The Court rejected Hugz's patent invalidity claim on the basis the patent was not invalid for lack of novelty or obviousness over the prior art. The paucity of Hugz's evidence also did not help its defence to patent infringement, which was established both on a normal interpretation and under the doctrine of equivalents (as there was an argument as to whether, on the proper construction of the patent, the shapes of fabric did not have to be separate pieces but could be joined by a seam). Freddy's argument on the skilled team and common general knowledge was unchallenged and accepted by the Court. Similarly, whilst Hugz's Defence pleaded four pieces of prior art, all were fairly quickly disposed of.  

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Viiv v Gilead: Patents Court considers approach to infringement by equivalents

Viiv claimed infringement of its patent for an anti-HIV drug, dolutegravir (DTG) by Gilead's drug, bictegravir (BIC). Viiv sought certain declarations and financial compensation, but no injunction. Unusually, the infringement claim was not made on the basis of a normal construction of the patent, but focuses only on infringement via the doctrine of equivalents as set out by the Supreme Court in its 2017 decision in Actavis v Lilly.

Gilead applied unsuccessfully to strike out Viiv's claim which relied on a 2016 paper by Gilead's employees to demonstrate that the development of BIC started from and relied on knowledge of DTG, and that BIC was developed with the aim of maintaining the characteristics of DTG by the use of similar structural features. Gilead argued it was not legitimate in a patent infringement case to ask the Court to take into account a defendant's intention. 

The Court accepted Gilead's point that the test for infringement was an objective one and the Court did not need, when considering that question, to consider the defendant's/its employees' intentions. However, when assessing whether objectively BIC works in the same way as DTG, a factual scenario that BTG was found by looking for a compound which did operate in the same way as DTG was, on a reasonably arguable basis, relevant.

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