A brassiere brouhaha: British man in patent fight with Seattle startup JoeyBra

The JoeyBra is designed to carry a smartphone, among other things.

JoeyBra founders Mariah Gentry and Kyle Bartlow — who met at the University of Washington’s Foster School of Business — are getting a crash course in the harsh realities of business and patent law.

The UW students have been sued by a British man who claims that he patented the concept behind a pocketed bra, one designed to carry everything from car keys to credit cards to cell phones. Charles Robinson filed a design patent application for his bra in November 1999, with the U.S. Patent and Trademark Office issuing the patent two years later.

Robinson filed suit and asked a court for a preliminary injunction against JoeyBra in May in an effort to stop the young entrepreneurs from selling their bra. The injunction has been delayed, as a federal judge decides on the proper venue for the case, which is now being argued in the Western District of Virginia.

Charles Robinson’s bra concept. Source: USPTO

Gentry and Bartlow unveiled the JoeyBra in April at the UW’s Business Plan Competition where they were one of four finalists, later telling their story on the GeekWire podcast. The entrepreneurs said they were inspired by the university’s Greek system, hoping to design a product for “women who are constantly on the go and struggle find a place to put their ID, keys, or phones.”

We’ve reached out to Gentry and Bartlow, and we’ll update this post as we hear more.

Meanwhile, the JoeyBra founders lost a critical decision this week when U.S. District Court Judge Norman K. Moon denied their effort to dismiss the case. He is still weighing whether to move the case the U.S. District Court in Western Washington.

One critical piece of that debate revolves around the popular crowdfunding platform Kickstarter and the fact that JoeyBra has shipped their product to residents in Virginia. The company has received 27 orders from Virginia residents, with eight of the JoeyBras shipped to customers.

Kyle Bartlow and Mariah Gentry with the JoeyBra

According to the court documents, all of the Virginia residents who received the JoeyBras have been refunded, and just last month the company disabled the option to ship products to the commonwealth.

Three residents in the state placed orders as part of a Kickstarter campaign that the company ran, with those orders unable to be refunded or recalled.

“These transactions with Virginia residents and shipments into the Commonwealth indicate that JoeyBra LLC purposefully availed itself of the privilege of conducting business in Virginia,” legal documents say.

UPDATE: JoeyBra founders Bartlow and Gentry responded to GeekWire, telling us that the patent issue is adding stress to the company but it won’t be a debilitating blow. The students, who plan to graduate from the UW next March, said they’ve been getting help from legal professionals in the Seattle area.

The entrepreneurs filed for a utility patent on its bra on April 25, 2012, and they said the JoeyBra has a different design and purpose than the creation patented by Charles Robinson a decade ago. They provided this statement to GeekWire:

“As you can see from Robinson’s patent filing, the pocket is located on the inside of the bra near the cup. It is very small, most likely the size of a key. In 1999, it was not designed to store a phone, as our design is today. Being that our pocket covers the whole side of the bra, is on the outside, and is large enough to hold a phone, credit card, ID, etc. the claim of infringement is a stretch at best.

Robinson created this design patent over 13 years ago and has, to our knowledge, yet to create an actual product. Sometimes when innovation, business knowledge, and drive come together in the as in the instance of JoeyBra, individuals are always tempted to capture some of that success for themselves. It is unfortunate, that these types of cases can arise and create issues for products that fill a market need.

We feel confident in the remarkably different designs presented. We created our product with our own unique ideas for a very specific purpose, took them to market, and have been meeting consumer’s needs in a real and tangible way. This lawsuit is a bump in the road. However, we are letting our legal team handle this case while we focus on what is important, growing our company and providing the consumers with the product they want. We hope the patent system succeeds in protecting those who need protection, without inhibiting truly innovative products.

Previously on GeekWireStartup innovation: A bra for stashing your phone

Here’s a copy of the latest legal action in the suit:

  • http://twitter.com/joelgrus Joel Grus

    Another victory for innovation! Thanks, patents!

    • guest

      Um, the apparent point would be that it didn’t represent an innovation because someone else came up with it first. Which would be sorta like why patents exists: to protect the original inventor.

  • MrBill

    Just as you’d expect with the broken patent system – tit for tat.

    • andycleary

      icuwdt

  • seattle gal

    who would want to wear a cell phone there..seems cancer producing to me

    • Seattleite
      • Healthy as a Horse

        Yeah, (*cough* Merck *cough*) the FDA is always (*cough* Avandia) looking out for us. They would never (*gasp* Rezulin *wheeze*) be shill for politically-connected corporations at the expense (*retch* Vioxx) of our health!

        • Cynic

          If you are as Healthy as a Horse – how come you cough so much?

    • LAWalkow

      Cancer hype only applies while transmitting. I don’t see anyone talking on the phone while in the holder. If they do, definite multitasking talent.

      No more hazard than sleeping with your head near your clock radio.

      • TgrHwke

        Where do you keep your phone while talking on it using a wireless headset?

  • http://www.facebook.com/lindsay.hersh.96 Lindsay Hersh

    Can’t we all just get along!? Love reading about the local business developers in Seattle! Hope they don’t get in too much trouble! Happy Friday John! :)

  • http://www.christopherbudd.com Christopher Budd

    I could use some help understanding something here. What’s the importance of Virginia and refunding to Virginia? Is that material somehow to the court venue? Presumably it’s going to be more onerous to fight this in VA than WA.

    I have to say I think that IP laws have gotten out of hand. Part of the problem is they’re focused just on the idea and not what you do with it. It’s not just having a good idea but actually doing something with it. This guy in the UK, as far as I know, may have had the idea first but didn’t do anything with it. Which argues that these folks didn’t copy his idea, they came up with it independently.

    Shakespeare borrowed a lot of plot ideas from others (other playwrights and legends). But what makes his work great wasn’t the originality of the material: it’s what he used with it.

    The same basic rule should apply here in my opinion. That leads to the greatest good ultimately. Otherwise, someone can have a good idea, do nothing with it, and keep it locked up unused by the rest of us.

  • http://twitter.com/Vroo Vroo (Bruce Leban)

    The Robinson patent is a *design* patent, not a utility patent. Design patents protect “the visual ornamental characteristics embodied in, or applied to, an article of manufacture”. http://www.uspto.gov/patents/resources/types/designapp.jsp#def It’s more like a copyright than a utility patent and it doesn’t protect functionality.

    It’s possible that this might bar Joeybra from getting a utility patent if the PTO believes their version is obvious given the previous design but that would not give Robinson any rights.

    Too bad Joeybra won’t be able to recover damages for their legal costs.

    • Rjflorida

      Exactly Vroo, this is a nuisance lawsuit at best. What is even worse is Robinson is claiming(Ok implying) a utility patent when in fact a cursory inspection says otherwise. He is hoping two kids will be intimidated by the legal challenge and fold before they talk to a lawyer.

  • http://twitter.com/SeattleEntrep SeattleEntrepreneurs

    Seems like they should just cut a licensing/royalty deal with the supposed patent owner so he receives a portion of the sales for every product sold. Have they tried to work together instead of battling it out in court?

  • Nick Fellows

    way to invite breast cancer

  • yesenia cazares

    hmm strangely i already store my phone in my bra from time to time.. dont really need a pocket though.

  • heather_lane

    their legal team will enjoy the cancer suits even more than the patent one soon enough.