Third time’s a charm – infringement contentions not stricken

Times Three Clothier, LLC v. Spanx, Inc.

Case Number: 1:13-cv-02157

We had previously reported on Times Three’s two failures to produce satisfactory infringement contentions in its infringement case against Spanx. (Link) 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. The first contentions mistook the middle section of the accused product with the lower section. The second contentions fixed that problem, but the court found there that Times Three provided no support for the infringement contention: it was not enough for the patentee to say, “the compositions and properties of [these sections] are subject to further discovery.”

Now, however, Times Three seems to have gotten it just right. It retained an expert who tested the fabric. The tests allegedly showed that the middle section had the highest compressibility, so Judge Cote refused to strike the contentions. Concerning Spanx’s arguments that the lower section’s compressibility was “a close second” to the middle section’s compressibility, and further that Times Three’s expert had not explained the mechanism that created the different compressibilities, Judge Cote said, “The testing results support a reasonable inference of infringement of the ‘195 Patent at this early stage of the proceedings, even though Times Three has failed to identify the means by which the garment’s characteristics render the middle section most compressive.”

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