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

The Patent has an unchallenged priority date of 9 September 2019. It acknowledges at the start of the specification that garments, including bras, which incorporate sensors to measure the biosignals of the wearer were known. Also known were sports bras which have an underband at the base of the bra, typically of an elastic material, to provide the wearer with additional support while exercising. Smart sports bras with underbands were known.

The idea of the invention is to place the apparatus which measures the biosignals at the side of the wearer. The background section of the Patent says that prior art smart bras positioned the apparatus in a prominent position, such as on the chest or between the shoulder blades. This allowed ready access to the device but could be both uncomfortable for the wearer and unsightly. The invention overcomes these disadvantages by locating the measuring apparatus in the side region of the bra, a position which allows accessibility, while being both unobtrusive and comfortable.

These are claims 1 and 2:

The first part of claim 1 divides the bra into front, rear and side regions. No sharp distinction between the regions is given in the specification but this did not seem to create a difficulty. It was not said that ‘side region’ is a term of art among bra specialists. This part of the claim also requires the presence of an underband positioned below and across the front, rear and side regions of the bra.

There is a measuring apparatus which includes a sensor assembly with one or more sensors. This is paragraph [0006] of the description:

Paragraph [0006] specifies that the electronics module is located in one of the side regions of the bra, which is the arrangement envisaged throughout the description. It appears that during the prosecution of the Patent this notion of the invention was abandoned. What can be taken to be the characterising portion of claim 1, after ‘wherein’, shows that the invention as now claimed instead places the sensor assembly in one of the side regions.

The claim also requires that the sensor assembly is not in the underband, i.e. the part of the underband located at the side of the bra is not a location of the sensor assembly within the claims.

Paragraph [0006] assists in the understanding of the ‘measuring apparatus’ of claim 1. It includes an electronics module and a sensor assembly which has one or more sensors. Paragraph [0013] says that a part or all of the sensor assembly may be located in the side region, along with the electronics module.

Claim 1 does not exclude the possibility that both the sensor assembly and the electronics module are located in one of the side regions. The electronics module could be anywhere on the bra.

Dr Skinner’s written evidence indicated that he thought that the ‘sensor assembly’ meant not just the sensors but also the electronics module, the battery, the processor and the Bluetooth communications system mentioned in the description. Accordingly, and as confirmed in cross-examination, he assumed that claim 1 requires both the sensor assembly and electronics module to be in one of the side regions. I disagree. Only the sensor assembly must be in a side region, away from the underband.

Whoop submitted that there could be more than one sensor assembly, although their expert, Professor Schraefel, said that she was unclear about that.

Save that it consists of one or more sensors, it is not clear from the description of the Patent what a sensor assembly is. There is nothing in the description to which my attention was drawn which either states or implies that there is more than one sensor assembly.

Paragraphs [0012] and [0013] provide the basis for what in the end became the invention as claimed in claim 1. Paragraph [0012] has this:

Paragraph [0013] says:

I think that reading these together the skilled team would have understood that all the sensors can be in the side region, in which case all the sensor assembly is in the side region. It follows that there is only one sensor assembly. The sensor assembly just means the entirety of the sensors used.

Paragraph [0013] implies that some sensors may be outside the side region. But the words of claim 1 are strong: all of the sensor assembly is provided in one of the side regions and not in the underband. I find that all of the sensor assembly and thus all of the one or more sensors must be in one of the side portions of the bra and not in the underband.

Whoop submitted that the requirement that there is a sensor assembly entirely located in a side portion and not in the underband does not exclude the possibility of another sensor assembly elsewhere. Since I have found that ‘sensor assembly’ means the entirety of the sensors used, I reject that submission.

Claim 2 provides for a pocket in one of the side regions ‘where the sensor assembly is provided’. On a first reading of the claim ‘where’ could mean that both the pocket and sensor assembly must be placed at one of the side regions. Alternatively, ‘where’ could mean ‘in exactly the same location where’, so that the sensor assembly must be located in the pocket. The description does not help because it speaks of the electronics module, not the sensor assembly, being located in the pocket.

Claim 3, dependent on claim 2, requires that the pocket must be accessible to provide access to the electronics module of the measuring apparatus. It was part of the CGK that there was an advantage in being able to remove the electronics module when washing the bra, although sensors could remain in place. In use the electronics module would be releasably connected to the sensor or sensors.

This supports the idea that the pocket is for the module rather than the sensors. The sensors and the module will be advantageously close to each other in the claim 2 arrangement, both being in the side region of the bra. I think on a more straightforward reading of claim 2 the sensor assembly need not be in the pocket.