Hello, Everyone,

Lately there has been a spate of discussion about patents. The reason is a process known as “patent trolling.” You can learn more by searching the web.

But know this: The troll is looking for money. Not everyone can afford a lawyer to explain their level of infringement, and a nasty letter can make someone back down from a fight they don’t want to be bothered with.

This is a problem for the industry, as it hurts a lot of innocent people, and it slows the sharing of ideas in our normally carefree, inventive, and super-creative community.

One thing we can all do is learn the basics: We can use a legal knowledge-base to make sense of this.
You may want to pay a lawyer: I am not giving legal advice, because I am not one. (I have consulted my own.)

Are you even infringing?

Probably not.

Some of these letters seem to be going to non-infringing parties. If you’re a non-infringer, how do you know you’re innocent?

Let’s use the World Intellectual Property Organization as a legal reference, shall we?

https://www.wipo.int/edocs/pubdocs/en/wipo-pub-867-23-en-wipo-patent-drafting-manual.pdf
See page 41, describing the all-elements rule, section 1.3. The following is a quote from the guide:

“Example

A patent claim reads:
1. A writing apparatus, comprising:
– a pencil having an elongated structure including two ends and a center between the ends;
– an eraser attached to one end of the pencil; and
– a light attached to the center of the pencil.

According to the all-elements rule, a competitor infringes the claim if it produces a writing device that has all of:
(i) a pencil with an elongated structure, including two ends and a center between the ends;
(ii) an eraser attached to one end of the pencil; and
(iii) a light attached to the center of the pencil.

A competitor produces a writing device that has the elements of a pencil and an eraser
attached to one end of the pencil, but no light attached on the pencil.

Another competitor produces a pencil with an eraser attached to one end and a light also attached to one end
of the pencil (i.e., not to the center of the pencil).

In these cases, there is no patent infringement.”

So how does this help defend against this latest assault?

Read this word: “Applique.”

If you’re following the current news: This latest troll has a patent that requires a Claim element of applique. Read Claim 1 and scan for it. It doesn’t matter about anything else. Don’t look at the drawings. Don’t read the description. The Claim is what’s protected. If your design, practice, lesson, or whatever does not include an applique on top of the fabric of a garment, forget the whole matter.

That means almost all of you! You are teaching and selling embossing. No applique: no involvement.
Do not even bother to respond to the person sending nasty letters. They’ll waste your time and ruin your day.

If the patent being referenced specifically includes applique, and if that element is missing from your work, you have not infringed.

But, the email said they own “Sandwiching the foam under the fabric.” Is this true?

No. That is specifically NOT covered, because the claims contain the element of applique.

Is this new at all?

No. Okay you want more? Here, let’s follow a trail of history.

1. Trapunto

The Italians have a term called Trapunto, which basically means “Puffy”. You have a fabric, and under it, there’s something fluffy, say: poly-fill or foam, and under that something else, such as cloth or a stabilizing layer. Across this sandwich of layers is sewn stitches.

2. Quilting

Gee, Some of you might think of it as a QUILT! You are correct.

3. Upholstery

We’ve all seen stitching over foam: It’s on every sofa and cushion. By the way, that BUTTON holding the foam down in the pillow would be a problem if this patent were not so specific.

4. Embossing

This is the usual modern term for anything that flattens down a puffy underlay. In machine embroidery, there’s puffy foam or fill under the fabric, and stabilizer under that, then top-stitches are added. There have been numerous examples shown for this from the start of the internet, and in publications prior. No-one would think embossing could be patented.

Patents must disclose something new to those proficient in the art.

Well, repeatedly, there are embroidery teachers showing prior knowledge. And if you consider that there are industry terms for applique and embossing, and those have been around for centuries, I think we can all agree there’s no combination there which is original. Under. Over. You have the same pieces. Every embroiderer proficient at embroidery has done one, both or combinations of these. Quilters do applique all the time.

What about puffy?

Do you think the original use of high density foam in embroidery was restricted to use above the cloth? Can you imagine that someone would bring such a thing to market and not perceive the use of it in embossing? Ridiculous! For example, Puffy Foam is a trademark in the US by Sulky corporation, founded by Fred and Joyce Drexler, two very sweet people. They offer just one of many brands of craft foam to the embroidery industry. But their name, “puffy” has become synonymous with that stuff most embroiderers use. They have encouraged the use of their products in all ways creatively imaginable for decades. And then look at all the other suppliers to the industry of the stuff. Can you imagine that not one of them ever thought to show embossing? We know quite well they did. It’s no coincidence that it’s called Puffy — meaning under the fabric, meaning…  Trapunto!

Other limits to the claims

“Garment” is also an element of the claims.

Is this a new idea? What if you put some foam under a shirt and put some stabilizing aid under that and stitched down?
It’s been done all the time for centuries. Just look at the Japanese sashiko.

Ok, but, more recently? Hmmm. Are shoes considered “garments”? Maybe arguable, but I think close enough. Ever look at a running shoe?  Yeah, go check your closet and come back.
See, stitching on fabric, over some foam or puffy stuff, with obviously something behind it to hold the stitches.

I even have some New Balance that seem to fit this. So what are we doing here? I wonder what Nike, Converse, Vans, Coach, Luis Vitton, Yves St. Laurent, Tommy Hilfiger, Tommy Bahama, Ralph Lauren and the rest would think of this? They would LOL the idea.

What if you are super into applique+foam and this may actually pertain to you?

Hire a legal expert. Find prior examples of work that would have taught you how to do it. Work around the claims: Move the foam under the applique (like usual). Or if you really make a living out of it, fight the patent to get it invalidated. A request: Don’t license it. That only encourages trolling behavior.

Not everyone seeking a license is a troll

If you see something truly new, and want to license that, please do! We’re not against licensing. We license our own work.

Just be aware of this kind of bad behavior, trolling, because they slipped one over on an examiner.