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Patent

Innovations in the Hydration Sector

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Innovations in the Hydration Sector

According to a recent report from The NPD Group, hydration is a surging category in the outdoor industry.  Sales of hydration-related products have increased 16% in the 12 months ending in May 2017; dollar sales have grown by 37% in the last two years.  Of all hydration categories, bottles represent the largest area of growth, with a 23% increase in sales, but all categories are experiencing growth. This trend may be due in part to the move away from one-time use plastic water bottles to high-tech, eco-friendly insulated cups and bottles.

While it may seem that the market is saturated with hydration-related products, a quick glance at the USPTO’s patent application database reveals that much innovation is taking place in the hydration sector.  Of the hundreds of patents and patent applications that have been published in 2017 related to water bottles, many applications are directed to integration of water bottles into sports or recreation equipment (such as US9682738, which discloses a combination water bottle and phone holder for placement on bicycle handlebars).  Other applications are directed to combined drinking and purification vessels (such as US9636613, which discloses a portable water bottle with a replaceable filter cartridge).  Still other applications are directed to specialized water bottles, such as those designed for pets (see US20170181400, which discloses a portable water vessel for pets). Thus, as hydration-related products are a hot area with room for innovation, it would be a wise move to dive in or even to dip your toe in the pool.

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Design Patents for Apparel

Design Patents for Apparel

It is a well-appreciated fact that protecting apparel intellectual property is a challenge, and many clothing designers and manufacturers are all too familiar with seeing knock-offs of their designs.  While there is no magic bullet for protecting apparel designs, a multi-pronged approach that includes trademark, copyright, and patent protection may provide clothing designers with an arsenal of tools with which to protect their designs.  One such avenue of apparel design protection is a design patent.  Design patents protect the way an article looks, and thus include the visual ornamental characteristics of an article of manufacture.  Design patents may be used to secure protection for a variety of ornamental designs, including stitching, fabric patterns, silhouettes, and more.

Apparel Manufacturing Inventions

Apparel Manufacturing Inventions

Sometimes an inventive aspect in the apparel arts relates to the process of forming the fabric. Since much of the manufacturing is foreign, patent rights to the resulting product can be more beneficial for domestic enforcement. However, a catch to this approach is that the resulting fabric structure needs to be novel and inventive.

To see how this plays out in the real world, a recent appeal by Nextec Applications, Inc. illustrates some of the issue. The application relates to a multi-layer structure to reduce hypothermia using a semi-permeable membrane and very low-absorption fabric. The low-absorption fabric is an encapsulated fabric having fibers and interstices, where the fibers are encapsulated by a polymer using a system having two coating blades. Nextec argued on appeal that a key to their invention was that the encapsulating system applies a force model to the blades based on initial properties of the fabric.

The issue here was that the features cited by Nextec were related to the manufacturing process, not the resulting structure of the fabric. The Patent Office was able to find prior art that showed the same resulting structure. That left Nextec arguing that they were able to achieve improved fabric performance because of their specific process. Whether true or not, this type of approach makes success difficult on appeal.

The reason is that the Patent Office shifts the burden to the Applicant when the argument about a new product degrades to one of differences in process. At this point, the Applicant needs to prove their point, which requires evidence. Many patent prosecution attorneys attempt to rely purely on attorney arguments; however the Board gives little weight to arguments without evidence when the applicant has the burden. This case is no different. The Board affirmed the rejection, as follows:

We agree with the Examiner that the polyester fabric enveloped with a silicon polymer disclosed in Caldwell appears to be the same or substantially the same as the polyester fabric encapsulated with a polymer recited in claim 1, and the burden therefore shifts to Appellants to establish an unobvious difference between the encapsulated fabric recited in claim 1 and Caldwell’s enveloped fabric. In re Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983) (“[where a product-by-process claim is rejected over a prior art product that appears to be identical, although produced by a different process, the burden is upon the applicants to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product.”)

So, if your invention is in a new process, work hard to find a different resulting structure. And if you cannot find something of significance in the structure, make sure you provide evidence of the difference in process and how that different process produces different results than the prior art process. The evidence could take the form of testing, expert analysis, etc.