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

The only integer of claim 1 of the Patent identified by Prevayl as missing from US 845 was the characterising portion of the claim: ‘wherein all of the sensor assembly is provided in one or more of the side regions and is not provided in the underband’.

Figure 5 of US 845 shows sensors in a variety of places, outside and within the side regions of the bra, in and outside the underband. Although Figure 5 does not label the underband, it was common ground that there is one, being the portion of the broadly rectangular section lower than the base of the cups. This is Figure 5:

It was not in dispute that the sensor marked V7 is in the side region and not in the underband. V6 is probably another.

Prevayl argued that although claim 1 of US 845 referred to the use of ‘at least one sensor’, this was not a disclosure that the device could be made with only one sensor. I reject that. The claims are part of the disclosure and anyway the abstract of US 845 tells the reader that ‘at least one sensor’ is to be used.

US 845 does not say where the one sensor could be. The parties’ pleaded cases focussed on Figure 5. Using that as a guide, the sensor could be in any of the places shown, which include locations in a side region and not in an underband. Whoop submitted that accordingly this was a disclosure which anticipates claim 1.

I do not agree. For claim 1 to be anticipated in this way it would be necessary for US 845 to give clear and unmistakable directions to use a single sensor located in a side region of the bra and not in an underband. US 845 discloses this as one among many possibilities without it being singled out. Claim 1 does not lack novelty over US 845 and therefore neither does claim 2.