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Lululemon's latest legal battle could be decided by just a few words buried in Nike patent filings

Business Insider logo Business Insider 06/01/2022 mkish@insider.com (Matthew Kish)
Courtesy of Mirror © Provided by Business Insider Courtesy of Mirror
  • Nike sued Lululemon on Wednesday, alleging Lululemon's Mirror infringes on six Nike patents.
  • Legal experts said each side believes it has a strong case in what could be a costly legal battle.
  • The dispute could come down to a technical analysis of the precise wording of Nike's patents.

Nike filed a patent infringement lawsuit against Lululemon on Wednesday that could be decided by the exact wording used by Nike nearly a decade ago. 

Nike claims Lululemon's Mirror home fitness product infringes on six Nike patents, including some of the company's technology for adaptive watches, interactive athletic equipment and fitness monitoring on mobile devices.

Lululemon acquired Mirror in June 2020 for $500 million, during the height of the at-home fitness movement sparked by the coronavirus pandemic. It's considered a competitor to other at-home fitness brands like Peloton and Tonal. Lululemon and Peloton are currently involved in their own patent infringement dispute

Legal experts told Insider Nike and Lululemon seemingly believe they each have a strong case and that the dispute could come down to a lengthy technical analysis of the double-digit claims listed in each of Nike's patents.

In a statement, a Lululemon spokesperson said, "The patents in question are overly broad and invalid. We are confident in our position and look forward to defending it in court."

Nike did not respond to Insider's request for comment. 

One thing is certain: The case could get expensive, given the complexity of patent litigation and the size of the companies, according to Zak Kurtz, founder of the boutique Sneaker Law Firm. 

"This is definitely a battle of the heavyweights," he said.

A pre-court exchange of letters

The dispute between Nike and Lululemon surfaced on November 3 when Nike lawyer Brian Fogarty wrote a 50-page letter to Lululemon lawyer Shannon Higginson and informed her that Nike believed Lululemon's Mirror infringed on six Nike patents. 

Nike filed the letter with the court as part of the lawsuit.

Outside counsel for Lululemon, Diek Van Nort of Morrison & Foerster, responded on December 10.

In his six-page letter, Van Nort said Lululemon respects intellectual property rights, then he outlined how Mirror does not infringe on any of the patents. The letter contains Lululemon's initial analysis of each patent in question.

In order for a patent lawsuit to succeed, a plaintiff must show how a competitor's product infringes on the individual "claims," or technical aspects of the invention, described in a patent.

"You're not entitled to protection beyond what you enable or describe in the patent," said Craig Nard, Galen J. Roush professor of law at Case Western Reserve University School of Law.

In Lululemon's view, Nike's arguments extend beyond what's in the patents.

"Based on our analysis and as described below, we do not believe that the Mirror and Mirror app practice the patents' claims," Van Nort wrote to Nike.

To take one example, Nike claims Mirror is infringing on a January 2019 patent for a "combinatory score having a fitness sub-score and an athleticism sub-score."

In his letter to Nike's counsel, Van Nort notes the Mirror measures calories burned and heart rate, but it does not combine them, therefore it doesn't infringe on the patent. 

Each of the six patents Nike mentions is related to activity monitoring technology. The oldest was awarded in December 2013. The most recent was awarded to Nike in February 2021. 

Most of the patents in question make 20 specific claims, including the sub-score described above, meaning the judge and potential jury have a thicket of technical language to untangle. Nard said it will take "hours of study" to decide the case that could span up to two years. 

Nike's counsel must be "of the good faith legal opinion that Lululemon's Mirror system contains each and every one of these claims or an equivalent," he said.

But at a glance, the Sneaker Law Firm's Kurtz said some of Nike's claims appear to be too expansive.

He said "It's a broad view of what their patents cover."  

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