Decision Date: May 8, 2013 -

Court: W.D. Virginia -

Patents: D448,541 -

Holding: Plaintiff’s motion for reconsideration of order denying preliminary injunction DENIED -

Opinion: Plaintiff Charles Robinson sued JoeyBra LLC in May 2012 for infringement of U.S. Design Patent No. D448,541 entitled “Brassiere.” Robinson obtained a patent for his pocketed bra design in 2001. JoeyBra’s product, the JoeyBra, is also a pocketed bra intended to hold phones, IDs, keys, and other small items. This opinion addresses Robinson’s motion for reconsideration following the court’s denial of a motion for preliminary injunction on the basis that Robinson was not likely to succeed on the merits. Robinson claimed the court erred in its likelihood of success determination in two respects: (1) it relied on a 2010 patent of a pocketed bra design to determine that his patent was likely not novel, and thus invalid; and (2) it determined that the JoeyBra design was substantially different than the patented design.

To invalidate a patent based on novelty, a court must rely only on prior art references which were available before the patent’s filing date. Thus, Robinson would have been correct if the court truly relied on a 2010 patent to find Robinson’s 2001 patent to not be novel. The judge dismissed the first argument by stating that the court had not considered the 2010 patent in the context of the validity of Robinson’s patent, but had merely mentioned the 2010 patent to indicate that Robinson’s patent had “not been a bar on other [later] pocketed bra design patents.” Therefore, not all pocketed bra designs would necessarily infringe on Robinson’s patent.