A recently filed court case demonstrates the ever-increasing competiveness of the fashion industry. Skechers U.S.A., Inc., alleged in its complaint that Perry Ellis International, Inc., and Shoe Confession LLC are selling a copied version of Skechers’ patented Skechers Go Run shoe. Skechers has filed suit against Perry Ellis and Shoe Confession, claiming patent infringement, trade dress infringement, and unfair competition, and is seeking to force Perry Ellis and Shoe Confession to stop making and selling the allegedly infringing merchandise. According to the complaint, Skechers’ shoe design is well-known: the company has spent more than $10 million in the last year promoting, marketing, and advertising the shoe, and it has sold hundreds of thousands of pairs.
On June 7–8, 2013, patent-licensing entity Smart Search Concepts LLC filed nine similar patent-infringement lawsuits targeting fashion retailers Gap, JC Penney, Kohl’s, Macy’s, Neiman Marcus, and Nordstrom, among other defendants. According to the complaints, the fashion retailers infringe some or all of three patents directed to “on-the-fly” website searches. The accused websites allegedly infringe when their search tools combine keywords with menus to help users narrow product selections.
What Is Derivation?
Derivation occurs when one obtains an invention from another. As the US moves from a first-to-invent to a first-to-file system under the American Invents Act (AIA) on March 16, 2013, derivation is an issue in two contexts: (1) as an exception to novelty defeating acts; and (2) in derivation proceedings that replace interferences.
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