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

The only arguments raised by Whoop were that the Whoop 4.0 module is neither a means relating to an essential element of the invention of the Patent nor a means suitable for putting the invention into effect.

As to the first, Whoop said that the technical teaching of the invention is the location of a sensor in a part of the bra that minimises discomfort for the wearer; that is achieved by the design of the bra, not any feature of the module.

Prevayl argued that implementation of the invention requires a sensor assembly of an appropriate size and shape to be located in the side portion and not in the underband. It also requires the sensors to be in a position to make the necessary contact with the wearer.

I think that Whoop’s argument focuses too much on the core of the invention – locating the measuring apparatus in a position where it will work and can be accessed, and which will overcome the disadvantages of the prior art, namely that the presence of the apparatus was uncomfortable and unsightly. The invention as claimed is a bra which includes, among other things, a measuring apparatus with a sensor assembly. The measuring apparatus is not a completely subordinate part of that invention. On the contrary, it is a central feature of the advantage promised by the invention: a comfortable and sightly bra which will measure biosignals produced by the wearer.

With regard to the module being a means suitable for putting the invention into effect, it was not in dispute that when used with a Whoop Bra it would put the invention into effect. (Nor was it in dispute that it was foreseeable on the part of Whoop that some users of the Whoop 4.0 module would intend to do exactly that.)

I see no objection in principle to the supply of more than one type of means constituting indirect infringement of the same patent. For the reasons I have explained, this is unlikely to lead to an excessive award of damages or sums in an account of profits.

I find that the supply of Whoop 4.0 modules constituted acts of infringement of the Patent.