Outlast Technologies, Inc., a Boulder, Colorado-based company that
makes temperature regulation materials for foams and fabrics, filed
patent infringement lawsuit in the Federal District Court of Colorado
against Salem, N.C.-based Frisby Technologies, Inc., a thermal
management company more commonly known for its ComforTemp brand.
In the suit, Outlast alleges Frisby's ComforTemp non-wovens violates
the Outlast U.S. patent No. 5,366,801 for encapsulated phase-change
materials in non-woven fabrics. Both companies develop such
technologies for a wide range of products, including home furnishings,
footwear, and apparel.
As you will recall from years of SNEWSÂ® coverage, Outlast and Frisby
(Nasdaq: FRIZ) inked a deal licensing specific elements of Outlast's
foam technologies for use with ComforTemp in 1998. Outlast got miffed
when Frisby's manufacturing partners began violating that license
agreement, according to Outlast, and Outlast subsequently filed suit.
Earlier this year, the companies settled that lawsuit and reworked the
licensing agreement to be more specific regarding manufacturing
procedures and foam thickness allowances.
What is at issue now has nothing to do with foam, and everything to do
with non-woven materials and Frisby's July introduction of a joint
project between its company and the German-based company Freudenberg.
The new product takes a traditional non-woven polyester batting and
adds ComforTemp to it in, what Frisby calls, "a unique manner."
And therein lies the foundation for a legal tiff. According to Duncan
Edwards, corporate counsel for Outlast, "In terms of splitting and
understanding intellectual property, essentially Outlast has everything
in fibers and fabrics, and Frisby has foam. Their (Frisby's) new
non-woven product has been in development for two years, during the
very time we were negotiating the initial patent infringement.
"We feel that, in addition to the clear violation of our patent, we
were not being dealt with in good faith."
Duncan Russell, president and COO of Frisby disagrees:
"We have spent the better part of two years working jointly with the
world's largest and most respected non-woven manufacturer, Freudenberg,
to create a new intellectual property," he told SNEWSÂ®. "We own the
material jointly, the pending worldwide patent jointly, and we will
defend it jointly and do not intend to deviate from that course.
"Obviously we would never bring to market something that we feel would
violate someone else's patent. At the same time, we do not believe that
they own the only existing technology using PCMs (phase-change
materials) and that there is certainly always a new way to do things.
And, perhaps that captures the very essence regarding the nature of
While there are those in the outdoor and fitness world rolling their
eyes wondering if these two will ever really kiss and make up, it is
important to realize that this kind of behavior is nothing new in
technology realms. The more our industries begin to push the scientific
and technological boundaries, the more it is likely we will see a
representative increase in these kinds of legal skirmishes and, of
course, a corresponding increase in very happy lawyer fees.