VF's The North Fave and Columbia Sportswear are being accused of using patented waterproof textile technology without permission.

Cocona Inc.’s patent infringement lawsuit against VF Corp.’s outdoor branch and Columbia Sportswear will live another day.

A federal Colorado court on Monday refused to dismiss Cocona’s claims that its patented technology for an enhanced textile membrane, essentially a breathable waterproof base material, is being used by Columbia and VF-owned The North Face in certain outdoor apparel, but the court did say that Columbia requires a separate complaint as it’s not affiliated with VF.

With that, the court demanded that Columbia be severed from the litigation against VF, and said if Cocona wishes to pursue claims against the company, a new complaint needs to be filed, which will be considered retroactive to early November, when the suit was launched.

Cocona’s chief executive officer Jeff Bowman said Wednesday that while the company is “first and foremost interested in creating mutually beneficial business relationships with partners” it’s left with “no choice but to take the matter to a court of law” when its technology is being used without a license.

A new complaint has yet to be filed against Columbia, but Bowman said one is imminent.

Representatives of Columbia and VF could not be reached for comment.

In Cocona’s initial complaint, the company accused Columbia of using the patented membrane in its “Omni-Wick” line of apparel only after Columbia met with Cocona “to discuss licensing” the patent. Those talks eventually led to the disclosure of the method behind the technology, but a deal was never reached.

Cocona’s relationship with The North Face also involved licensing negotiations that saw the eventual disclosure of the method behind the patent, but the parties eventually began working together to produce North Face’s “Flashdry” line of apparel.

However, Cocona claims that VF Corp. started to manufacture similar products for other of its brands. Cocona eventually asked that VF stop making any products with its technology and the company complied, but it then went on to use the technology in other apparel lines without approval, according to the complaint.

The company is seeking unspecified treble damages, along with a permanent injunction against VF and Columbia’s use of the patent.

In response to the complaint, Columbia in January filed its own suit against Cocona, alleging the tech company’s suit breached a 2009 nondisclosure agreement and arguing it has not infringed on the patent at issue, because the patent is invalid.

That case is currently stayed pending outcomes in the Colorado litigation, according to court records.

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