Intellectual Property Enterprise Court

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

Fecha: 27-Feb-2025

PCT 853

PCT 853

53.

PCT 853 claims an invention entitled ‘A bra for measuring a physiological signal’. The background section identifies the disadvantages of the prior art. It is probably translated from Finnish which may account for the odd phrasing:

‘In the sports bra there is often an elastic underband which has space for sensors and measuring electronics. However, this approach cannot be used in the daily worn bra, because daily worn bra should typically be skin-tight and comfortable for worn whole day so in other words there is no space for additional sensor package or the like under the cups.’

54.

As that passage implies, the invention is about fitting sensors to a conventional bra not a sports bra. The idea disclosed is to have a measuring device or electrode in a removable module which forms a side wing of the bra. This is the characterising portion of claim 1:

‘… the bra comprises a measuring device and/or at least two electrodes, where said measuring device or at least one electrode is arranged to a module, and wherein the module forms at least a basis of the first side wing of the bra.’

55.

It was agreed that an ‘electrode’ in PCT 853 is the same as a ‘sensor’ in claim 1 of the Patent. The biosignals measured by the electrodes are typically those used in electrocardiograms for detecting the wearer’s heart rate but other signals could be measured.

56.

Prevayl submitted that there are two points of distinction between the invention of claim 1 and that of PCT 853:

(1)

There is no underband in PCT 853, and

(2)

The sensors of PCT 853 are not only in the side region of the bra, but extend to the rear region.

57.

Prevayl said that the whole teaching of PCT 853 is not to have an underband – it is all about a bra that is not a sports bra.

58.

I agree that PCT 853 is not dealing with a sports bra, but it does not follow that it would not be obvious to use the PCT 853 idea in a sports bra, just by adding an underband.

59.

Dr Skinner agreed that from the perspective of the biosensors skilled person who was considering making a sports bra, it would be obvious from reading PCT 853 that a sensor could go on the side of the bra, either in the underband or not. This would be the case whether the sensor was combined with the electronics module or not.

60.

Mr Thomas, from the bra designer’s perspective said that it would not be normal to add an underband to a daily bra because of the different physical requirements and component make up of a daily bra compared to a sports bra.

61.

Professor Schraefel considered the skilled team starting with a sports bra and whether they would think of amending the sports bra having read PCT 853. She said that the skilled team would not have incorporated a removeable module of the type disclosed in PCT 853 into a sports bra because a sports bra is made of stretchy material that does not have fastenings like a regular bra. However, the skilled team would have considered incorporating the module as a fixed non-detachable portion in a sports bra.

62.

Dr Skinner and Mr Thomas were approaching PCT 853 from different starting points: Mr Thomas was thinking about adding an underband to the regular bra of PCT 853. Dr Skinner was considering a modification to a sports bra. Their evidence is not inconsistent. Taken in combination, Dr Skinner’s evidence holds good: it would have been obvious having read PCT 853 to make a sports bra with sensors in the side region and not in the underband. Professor Schraefel’s evidence was consistent with this.

63.

Mr Thomas’s evidence about pockets discussed above in relation to US 845 showed that the pocket of claim 2 of the Patent was on obvious option known to the skilled team at the priority date.

64.

Both claims 1 and 2 of the Patent lack inventive step over PCT 853.