Judge Cote Strikes Switched-up Infringement Contentions


Times Three Clothier, LLC v. Spanx, Inc.

Case Number: 1:13-cv-02157-DLC (Dkt.60)

Times Three Clothier accused Spanx of patent infringement for the sale of women’s clothing, specifically shapeware. The patent at issue, U.S. Patent No. 8,568,195 (“Multi-fabric garment”) claims shapeware having three sections, the upper and lower sections having lower compressibility than the middle section. Unfortunately for plaintiff, its infringement contentions misidentified the three sections, and so the contentions argued that the lowest section, rather than the middle section, had the highest compressibility of the three sections. The contentions identified the compositions of the sections’ fabrics as support. Upon defendant’s notice to patentee, the patentee filed amended infringement contentions, but now declined to provide support for the new contentions. Instead, patentee said only that “the compositions and properties of [these sections] are subject to further discovery.”

The court was not satisfied. New York’s local patent rules, which the court analogized to the local patent rules of the Northern District of California, must “raise a reasonable inference that all accused products infringe.” As the amended contentions lacked infringement support, and the accused products are publically available at low cost, the court struck the amended contentions and issued a scheduling order for amended infringement contentions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robins Kaplan LLP | Attorney Advertising

Written by:


Robins Kaplan LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.