A judge at the English Court of Appeal has dismissed a patent appeal by retailer H&M against an elastic manufacturer.

Stretchline had accused H&M of patent infringement and a settlement agreement was entered into in 2011.

The patent, UK number 2,309,038, covers a tubular fabric for use in underwired garments such as bras.

In 2013, Stretchline alleged that H&M was again selling bras which fell within the claims of the patent.

Stretchline asserted that H&M was in breach of the settlement agreement or that it had infringed the patent.

H&M argued that the patent was invalid and counterclaimed for its revocation, but in October 2014 Mr Justice Sales struck out the retailer’s claims because the settlement agreement precluded H&M from raising the issue of validity.

In October 2015, Mr Justice Henry Carr confirmed this decision on appeal, and although Stretchline’s infringement claim was not struck out, the elastic manufacturer discontinued the claim and relied only on its settlement breach claim.

H&M then appealed, raising claim construction questions over claim 1 of the patent.

At issue were the last few words of claim, “the yarns are formed into a tubular fabric whereby the fusible yarn is arranged within the fabric tube so that it is capable of forming a penetration barrier”.

Stretchline argued that the patent claimed a structure which, by bonding of the fibres, is better able to resist penetration.

The fusible yarn “simply spreads itself over surrounding fibres to form points of adhesion or bonding between those fibres”, according to Stretchline.

But H&M argued that points of adhesion are not sufficient and that the fusible yarn must create an “identifiable, substantially continuous layer-like barrier or lining”.

In the judgment, the court agreed with the earlier ruling to dismiss H&M’s argument.

“The judge made no finding that it was obvious to use fusible yarn to increase the penetration resistance of tubular fabric.”

The court concluded that the indicators relied on by Stretchline for the correctness of its construction are of “far greater persuasiveness” than the suggestion that its construction would result in obviousness over the common general knowledge.

Norman Collier, the managing director of Stretchline UK, said: “We are obviously pleased with the outcome. Stretchline invests heavily in innovation and we work closely with our customers to provide high-quality, differentiated products.”

Nick McDonald, partner at law firm Potter Clarkson, and Stretchline’s representative, said: “It’s the right outcome. We’re pleased for our client Stretchline, who throughout this dispute have wanted no more than to protect their IP rights, as any innovation company is entitled to do.”

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