IP-2022-000067 - [2025] EWHC 399 (IPEC)

Whoop separately supplies two relevant products. The first is a sports bra which has a pocket for a bio-sensor device (‘the Whoop Bra’). The pocket is designed to receive a wearable sensor module. There are alternative suppliers of modules that would fit and work in the Whoop Bra. One of the alternatives is Whoop’s second relevant product, the Whoop 4.0 sensor module. The Whoop 4.0 need not be used with a bra; in fact, most usually it is worn on a wrist strap.

Whoop accepted that the Whoop Bra with a Whoop 4.0 installed in the pocket together constitute a product within claims 1 and 2 of the Patent.

The Whoop Bra is sold in the UK. The Whoop 4.0 is supplied free to customers in the UK who subscribe to a membership scheme which allows the subscriber to have access to the Whoop app. The app provides coaching information, weekly and monthly performance reports and what were described as personalised insights.

Whoop did not dispute that the supply of the Whoop Bra was an act of infringement. Whoop accepted that the Whoop Bra is both a means relating to an essential element of the invention of the Patent and is suitable for putting the invention into effect. By contrast, according to Whoop the Whoop 4.0 is neither.

Whoop suggested that if this were not so, it would give rise to a nonsense: if 100 Whoop Bras were sold and 1000 Whoop 4.0s supplied, there would be 1000 infringements even though the invention of the Patent was implemented only 100 times.

Prevayl argued that the Whoop 4.0 was both a means relating to an essential element of the invention and was suitable for putting the invention into effect. Prevayl was concerned that absent a finding that supplies of Whoop 4.0 modules were acts of infringement, Prevayl would only get damages arising from sales of Whoop Bras.

Possibly the concerns of both parties are of no practical substance. In an inquiry for damages it may be that Prevayl would be entitled to seek parasitic damages in respect of loss flowing from the supply of Whoop 4.0 modules that had been fitted to the bras sold. Going to Whoop’s nonsense example, even though 1000 bras were sold, Prevayl would be entitled to claim damages only for loss caused by Whoop’s working of the invention, which may well be taken to mean the loss caused by customers buying the 100 Whoop Bras into which Whoop 4.0 modules have been installed. However, this was not explored by the parties from the perspective of the law on damages and accounts.

The issue regarding infringement by supplies of Whoop 4.0 modules was before the court and I must decide the point.