Fed Circ reverses USPTO finding over L'Oréal copying claims
A US federal appeals court has ruled that the US Patent and Trademark Office (USPTO) was wrong to disregard evidence that L'Oréal copied a competitor’s product during patent invalidation proceedings.
In a precedential opinion, issued October 17 and unsealed yesterday, the US Court of Appeals for the Federal Circuit criticised the USPTO’s Patent Trial and Appeal Board’s (PTAB) finding that the evidence was legally “irrelevant” when determining whether a rival’s patent was obvious.
According to the PTAB, the finding of copying was “irrelevant as a matter of law” because hair products company Liqwd hadn’t shown that L'Oréal copied a specific product.
In yesterday’s ruling, the Federal Circuit found that “substantial evidence” showed L'Oréal had copied Liqwd’s patented hair bleaching method, and the PTAB’s reasoning was based on a misreading of case law.
The appeals court remanded the PTAB’s obviousness determination, and instructed the board to review the case with the Federal Circuit’s decision taken into account.
Hair-strengthening method
According to Liqwd, L'Oréal copied its unpublished patent application (US number 14/713,885) covering a maleic-acid based bleaching method for strengthening hair.
These allegations came after L'Oréal filed a petition in 2017 for post-grant review of a Liqwd patent (US number (9,498,419), which was derived from the ‘885 application.
The PTAB concluded that “L'Oréal would not have developed products using maleic acid without having access to Liqwd’s confidential information”.
Yet for the finding to be material to an obviousness determination, Liwqd had to show that L'Oréal copied a specific product, the PTAB said.
The board ruled that the ‘419 patent was invalid, as a person of ordinary skill in the art would have been motivated to choose maleic acid as a key component over alternative compounds.
The Federal Circuit has now remanded the PTAB’s obviousness determination, concluding that this reasoning was in error.
The PTAB’s ruling was based on Federal Circuit precedent in Iron Grip Barbell v USA Sports, where the court held that “copying requires the replication of a specific product.
The intended effect of the Iron Grip decision, the Federal Circuit said, was to emphasise that “similarities between an issued patent and an accused product do not, on their own, establish copying”.
Subsequent cases based on Iron Grip held that the relevance of copying claims was based on “whether there was actual evidence of copying efforts as opposed to mere allegations regarding similarities between the accused product and a patent”, the court’s ruling stated.
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