Vibram v. Fila — Patent Infringement?

This is just hilarious. Vibram (with their Five-Fingers) is suing Fila (with their Skele-Toes) for patent infringement. Here is an article about it.

I have to admit that I am a totally impartial observer, since I think they are both stupid. To paraphrase Tuco Ramirez (“Ugly”, from “The Good, The Bad, and the Ugly”, “When you’re going barefoot, go barefoot. Don’t wear shoes.” And don’t pretend that they are not shoes.

But anyways, I have a hard time being sympathetic.

I have put a copy of the Complaint here.

It is based upon 3 different patents. Two of those patents are simply design patents (that is, more or less, the look and feel of the Five-Fingers). The main patent with the supposed technological advance (snort) is here.

A lot of that patent seems to extol the virtue of individual toes. So, ought Toe Socks sue Vibram for patent infringement? Or maybe my bare feet should sue them. Oh, and another major claim is that they manage to follow the contour of the foot. That’s patentable?

But the Vibram patent does go beyond that. They do have a neoprene sole that extends under each individual toe, and then curves to cap it over the top. Whoop-de-do. The rest is then a more flexible, breathable fabric.

Here’s how they put it in their complaint (Paragraph 17):

Prior to Vibrams’ invention, efforts to provide footwear having indiviual portions which separately encapsulate toes have not been successful in enabling free and independent toe articulation while at the same time providing enhanced comfort and increased haptic response along with a significant degree of foot and toe protection. A need therefore existed for footwear shaped to the natural contour of the feet and which allows independent intrinsic movement of the feet, and particularly the toes, in order to enhance performance of the foot, increase haptic response, and to bring increase comfort to the wearer and yet which still provides coverage and protection to the toes and to the remainder of the foot. Vibram has filled that need with its novel and inventive footwear.

And then paragraph 19 says:

In one embodiment, Vibram’s patented footwear comprises a sole and an upper; wherein the sole and the upper delimit individual toe portions configured to receive, retain, and allow independent articulation of corresponding individual toes of a foot inserted in the footwear; and wherein the sole includes an extension portion which extends upwardly around at least a portion the foot; wherein the extension portion of the sole comprises a sole toe extension which extends around a front of at least one of the individual toe portions and which extends over at least a portion of a toe nail area of the individual toe portions.

You can pretty much see it all here:

Vibram Five-Fingers

If you look at that sole, it thickens at the pad and heel, and then thickens further under the toes. For the life of me I don’t see how that enhances “haptic response” (Vibram’s term for feeling the ground!). (OK, it’s better than a regular shoe.)

As far as I can tell, a lot of the patent is still for individual toes, but some of it is for separating the sole and the upper so the toes work better individually (than, say, if the whole toe were neoprene).

So, compare that to the Skele-Toes. As far as I can tell, Skele-toes don’t do that extra thicknesses on the sole. But they do draw cool foot skeletons on the bottom:

Fila Skele-Toes

Oh, and they only have four toes. The fourth and fifth toes are forced to share one of the compartments. I also notice that the toe cap on the Skele-Toes don’t go over the toenail as they do for the Five-Fingers.

So, is it patent infringement? How the heck should I know? I can barely figure out how Vibram got the patent in the first place. Individual toes—what a concept!

But both of them are polishing a turd. There’s a lot of money involved here, and there is really no reason for there to be.

Just go barefoot.