Adidas has been fighting since 2012 to overturn a Nike patent on its Flyknit technology, which is purportedly unique in that it creates a double-layered knit upper for athletic shoes in a cylindrical shape without the usual seams that then attaches to a sole. In October, the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office sided with Nike in upholding its patent.
But Adidas isn’t taking that as the final word on the matter and in late November filed an appeal of the decision with the U.S. Court of Appeals for the Federal Circuit, which handles all appeals of PTAB decisions and issues, regardless of court jurisdiction.
In a standard docketing statement made on Wednesday to get the appeal under way, Adidas urged the appellate court to reverse the underlying rejection of its claim that Nike’s Flyknit technology is simply unpatentable.
The appeal has not yet been fully briefed, but in its arguments at the PTAB, Adidas relied mainly on the idea that a majority of the Nike’s patent claims have been described in earlier patents — one from 1994 and another from 1974 — making it “obvious” and essentially not novel enough to secure a patent.
The German company also argued that any person with “a few years” in the footwear manufacturing industry would be able to make such knit shoes, according to court records. This “person of ordinary skill” angle is a standard argument in patent disputes.
The Federal Appeals Court is Adidas last chance to undermine the Flyknit patent.
Representatives of Nike and Adidas could not be reached for comment on the appeal.
Nike received the patent in 2004 and continued to develop what’s come to be known as Flyknit before releasing in 2012 in an initial line of shoes under the brand, after launching at that year’s Olympic Games in London. The company has consistently churned out new shoes, making use of the purported innovation since, and earlier this year, it brought the knit style to apparel for the first time with a new sports bra.
When Nike released the first Flyknit Racer shoe, it touted the technology’s many benefits, like being very lightweight while “creating the feeling of a second skin,” and reducing waste with the novelty of a “one-piece upper” that doesn’t need multiple materials or cuts.
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