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.

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