Nike v Adidas - knitted footwear war runs on
20 October 2016
The Rio Olympics may now be a memory, but over the past few years two sportswear manufacturers have been battling it out in court, with patents being the field of play.
Nike and Adidas both released their first knitted running shoe in 2012. Nike released their product, Flyknit, in February 2012 claiming that the production of the shoe's upper was the result of 10 years development. In July 2012, just before the London Olympics, Adidas released their product, the Primeknit, hailing this as "a first-of-its-kind running shoe".
Soon after release of the Primeknit, Nike filed a patent infringement lawsuit in Germany to try and stop Adidas from making and selling the Primeknit in Germany (where of course Adidas is headquartered). In August 2012, the German Court granted Nike's injunction ordering Adidas to halt the sale and production of its knitted footwear. Adidas successfully challenged the validity of the patent and Nike's patent was revoked for not being novel over a technique for knitting uppers developed in the 1940s.
The battle then moved to the US where both parties started selling their respective footwear. In a seemingly pre-emptive move, Adidas challenged the validity of Nike's patent in late 2012 by filing a petition at the US Patent Trial and Appeal Board (PTAB) alleging that one of Nike's patents for the flyknit design was invalid over a technique described in a 1991 patent application. This patent was ultimately held invalid as being obvious over the technique. The PTAB did not allow Nike to amend the claims to overcome this art.
Nike filed an Appeal against this decision to the US Court of Appeals for the Federal Circuit in 2014 to challenge this decision. The US Court of Appeal remitted the case back to the PTAB after finding that the PTAB did not consider Nike's non-obviousness evidence and should have allowed the motion to amend.
The battles between these two companies continue. In April this year, Adidas filed three additional petitions at the PTAB to try and invalidate three utility patents held by Nike. These three patents protect various aspects of footwear that has a textile upper and methods of manufacturing the textile upper.
With such innovative techniques used in the design and manufacture of footwear, it seems that patents may be a useful tool. Last year, Nike was awarded around 500 US patents last year bringing their total to around 5,010 US patents. This is more patents than some larger traditionally technology companies such as Lockheed Martin and even the Ford Motor Company.
Given this number of patents held by Nike, and the length of time for which this dispute has raged, it seems the PTAB may be kept busy for years to come.