English court refuses to reopen L’Oréal patent case
The English High Court has rejected cosmetics brand L’Oréal’s attempt to reopen a patent case over a hair care product.
Mr Justice Birss dismissed L’Oréal’s application on Thursday, July 19.
In June, Birss handed down a judgment in the patent dispute, in which he found that Smartbond Step 1, a hair repair product sold by L’Oréal, infringes a patent licensed to California-based Olaplex.
At the centre of the dispute was UK patent GB 2,525,793, called “Keratin treatment formulations and methods”. Keratin is an important structural protein of hair, and keratin products can smooth and condition the hair, according to lifestyle magazine Elle.
The patent was registered in 2016 and belongs to California-based Liqwd, a developer and seller of hair products. Olaplex is the exclusive licensee of Liqwd’s keratin treatment.
The Olaplex No. 1 Bond Multiplier product features the patented keratin treatment, with a “diamine salt of maleic acid” being the key ingredient.
Olaplex said L’Oréal’s Smartbond Step 1 infringes the ‘793 patent and that L’Oréal had attempted to purchase the Olaplex business but then opted to use the patented ingredient in its own products instead.
L’Oréal’s product also contains maleic acid, but not in the same form.
In response to Olaplex’s allegations, L’Oréal said the ‘793 patent is invalid in light of prior art and asked the court for a declaration of non-infringement.
In the judgment handed down last month, Birss ruled that claims one to ten of the ‘793 patent are invalid. He agreed with L’Oréal that the skilled person would recognise the use of maleic acid as an active agent, so the first ten steps of the patent lack novelty.
However, Birss added that claim 11 of the patent is valid and had been infringed by L’Oréal.
L’Oréal applied to reopen the trial and admit new evidence which, the cosmetics company said, proves that the patent as a whole, including claim 11, is invalid.
L’Oréal alleged that the material was not available before the trial and, in light of its existence, the evidence should be admitted and the judgment reversed. In addition, L’Oréal asked for an order for disclosure against Olaplex.
Olaplex called the application “an abuse of process” which should be dismissed “without further ado”.
Last week, Birss concluded that the new evidence does not show why the outcome of the decision would have been any different.
He dismissed L’Oréal’s application and said the company “could and should” have raised the issues noted in the application during the hearing.
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