Complaint Alleges Malpractice in Claims Drafted for Push Up Bra Inserts

Runberg, Inc. dba Zephyrs v. McDermott, Will & Emery LLP, et al.

Case Number: 652543/2014

Runberg owns U.S. Patent No. 8,216,021 (“Engineered push up insert”), which claims a kidney-shaped push up insert “for enhancing cleavage and adding volume, thus, improving appearance and the fit of clothing.” Runberg’s complaint, filed in state court, alleges that several of the claims, which recite ratios of various lengths, got the ratios backwards. For example,

   The language of  Independent claim 1 and related dependent claims 2 and 3 were
   drafted in both  the specification and the claim language so that the Patent states
   that the ratio of  the thickness (T), i.e. from against the breast to against the bra, to
   the length (L),  i.e., from her sternum to near the armpit, is less than 9. Instead,
   this language  appears backwards in the patent’s claims. Presumably, [defendant]
   intended to say  L/T <9, but in words, he expressed T/L <9. This same type of
   drafting error  appears with respect to the notch/depth ratio, as well.

Runberg alleges that because of these drafting errors, it was forced to file a reissue application. Further, knock-off products have now burst into the marketplace, including products sold by Victoria’s Secret and by Amazon. Runberg alleges it likely lost royalty payments of more than $4.9M from Victoria’s Secret and more than $1M from Amazon.

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