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Patents also play a role in fashion law, e.g. in smart textiles. When does a patent application make sense and why do Nike/Adidas argue about them?

Patents, trade marks, designs … many IP terms that also affect fashion law are thrown around or even used synonymously. Our previous articles on fashion law have mainly dealt with trademarks – which also reflects well the rather subordinate relevance of patent protection for fashion products. This may come as a surprise, since a patent right ensures protection against unwanted product imitations and can prove to be very valuable.

What is a patent?

The main focus of patent protection is technical development. A patent protects achievements in the field of technology, whereby design does not play a role here at first. However, this does not exclude the field of clothing per se. Think of the fastenings on items of clothing, such as the zip or Velcro fastener, or also multifunctional clothing, where it started in the 1970s/80s that outdoor clothing is, for example, water- and wind-repellent and/or breathable.

There is no end to such innovations: the keyword is “intelligent clothing”. For example, there are survival jackets for people in avalanche areas whose built-in sensors record the heartbeat and temperature so that a person buried in the snow can reach rescue in time with the help of the additional built-in GPS. Functional clothing is particularly present in the sports and workwear sector.

But the field of application of such products goes much further. An electronic poop “ICD+” developed by Levi’s and Philips in 2000 integrated electronic devices such as a telephone and MP3 player into the garment. All the wiring was hidden in the jacket, with a power line also possible partly through the textile. Here, the patented product serves mainly entertainment purposes and therefore also finds favour in “normal” fashion.

The medical sector also profits: Clothing is developed and patented through which muscles are stimulated when worn or, for example, creams and pharmaceuticals can be delivered to the skin. Special technologies also make it possible to determine the vital functions of the body of sick people and to pass them on to doctors.

When is my product patentable?

A patent is only granted for technical inventions. The law does not define what is considered a technical invention, but what would not be patentable in any case. This includes discoveries, because they involve finding something that already exists, and, for example, aesthetic creations of form, for which design protection is already provided. The latter does not apply, however, if the garment combines aesthetic effect and inventive step in one. In that case, the aesthetic effect is protected by design law and the invention as a patent.

§ Section 1 (1) Patent Act then sets out three requirements for patentability: novelty, being based on an inventive step and industrial applicability.

An invention is new if it does not belong to the state of the art. The state of the art comprises all knowledge that was available to the public worldwide in any conceivable way before the application for the invention in question was filed. It is already prejudicial to novelty if a single person could have gained knowledge of the invention without the obligation to maintain secrecy. Making the invention available to the public can occur, for example, through written or oral description, use or exhibition. Inventors must be aware that information they themselves have put into the world can also count as “prior art”. Before filing a patent application, it is therefore advisable to keep the invention secret.

In addition, the invention must be based on an inventive step. It should not be obvious to a person skilled in the art from the prior art, but should stand out from the prior art to a sufficient degree. For example, if the patent concerns swimwear composed of a garment part and a gemstone part, the person skilled in the art should be considered to be a fashion designer with experience in textile technology and knowledge of gemstones. It is then asked whether, from their point of view, the material composition or choice is obvious and known in the relevant field.

The third criterion for patentability is industrial applicability and is fulfilled if the invention is suitable by its nature to be manufactured in an industrial plant or to find technical use in a trade.

What effect does a patent have?

The main consequence of a granted patent is the right to monopolise the invention. However, because patents are of immense importance for technical progress in our society and fulfil an information function that should also be built upon, it is mandatory to publish the invention. This should create incentives for other inventors and, of course, also make life easier for consumers.

The exact scope of the patent is determined by the patent claims (Sec. 14 Patent Act). The patent claim describes the invention disclosed and claimed.

In contrast to trade mark law, the term of protection is 20 years. During this time, patent owners have the right to dispose of the invention – which means that others can be prohibited from using the patented invention. This ultimately enables inventors to make it more difficult for competitors to enter a market field. However, the possibility of licensing the patent is of great importance. Third parties then receive the right to exploit the patent, while the patent holder collects royalties.

Latest news on patents in the fashion world?

In a recently settled patent infringement lawsuit between Nike and Adidas, nine of Nike’s approximately 300 patents for its special “flyknit” knitting technology were infringed by those of Adidas’ so-called ‘primeknit’ shoes, according to the allegation. According to the lawsuit, Adidas announced its primeknit shoes just five months after Nike launched flyknit, after which the industry “immediately took note of the similarities between Nike’s patented flyknit technology and Adidas’ primeknit offerings”. Different knit patterns are combined in the Nike flyknit upper, which is made from strong yarn with a low weight as a single piece. In this, certain areas are more tightly woven for a sock-like support of the foot, while other areas are more elastic and breathable. Adidas also advertises that its “primeknit” upper is knitted in one piece, using fused yarns, and the shoe wraps around the foot like a sock. Both Nike and Adidas use yarns made from recycled materials, from which the upper of the shoe is knitted. It is just one of many legal disputes in patent matters between the two companies.

Although patents don’t seem to have much to do with fashion at first glance, they can still come into play – at least for the technical aspects. Not only entire garments, but also special types of fabrics can be legally protected by patents in terms of their functionality. However, the purely aesthetic design of the garments must always be separated from this.

Author: Olivia Wykretowicz