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When a win is not a win

Kickstarter-funded “pocket bra” prevails over a patent infringement case, but fails to garner attorney fees

It’s not quite as intense as the dispute between the terms “bro” and “manssiere” that almost brought characters on “Seinfeld” to blows, but it’s still a big dispute in the highly competitive arena of specialized and functional lingerie. It’s the debate over precisely who invented the bra with pockets in the wings.

Two entrepreneurs from the University of Washington created a business selling the “JoeyBra,” a brassiere with a pocket in the wing, designed for women who are “constantly on the go and struggling to find a place to put their ID, keys or phones.” It seemed like a pretty good product for a specific target audience, but as they developed their business, they ran into a common stumbling block that many new business encounter: litigation.

The inventors of the JoeyBra were slapped with a lawsuit from Charles Robinson, an inventor who had patented a similar product in 2001. He brought the infringement suit but, since he had never bothered to manufacture and sell products based on his design, the judge denied Robinson’s request for an injunction. Ultimately, the lawsuit was dismissed for failure to prosecute.

This would seem to be a victory for JoeyBra. But, since the fledgling entrepreneurs were forced to pay legal fees to fight the initial suit, they decided to seek an award fo for said fees, hoping to recoup some of the valuable money they had sunk into this case.  

This is where JoeyBra ran into a wall. The judge decided that they had not prevailed in the case and were therefore ineligible to receive attorney fees. Even though the Octane case has made it easier for losers in patent litigation to receive these fees, the court has determined that one must actually win a suit in order to be considered for fee shifting. It’s a loss for JoeyBra, but an important clarification for entrepreneurs and patent trolls across the country.


Further reading:

Patent indefiniteness tightened by Supreme Court in Nautilus v. Biosig

Patent troll ordered to pay FindtheBest’s attorney’s fees after failed patent litigation case

Patents, trademarks top of mind for IP counsel in medical technology space

Medtronic settles heart valve patent war with Edwards LifeSciences



Senior Editor and Community Manager

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Rich Steeves

Richard P. Steeves is Senior Editor and Community Manager of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A....

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