Federal Circuit sets aside decision in L’Oréal patent case
The US Court of Appeals for the Federal Circuit has set aside a decision that rejected a patent injunction against L’Oréal USA.
Last year, hair treatment company Olaplex alleged that L’Oréal sold products that directly compete with Olaplex’s in the hair care market and sued L’Oréal for patent infringement before the US District Court for the District of Delaware.
Olaplex claimed that, in 2014, it introduced a new hair care product category called “bond builders”.
Olaplex licenses US patent number 9,498,419 from Liqwd. The ‘419 patent covers a method of bleaching hair by applying a combination of bleaching formula with a formulation containing an active agent that reduces or repairs damage to the keratin proteins of hair.
The claims of the patent are limited to maleic acid (or its salts) as the active ingredient and further require that “the mixture does not contain a hair colouring agent”, according to the Federal Circuit.
Olaplex said that three of L’Oréal’s products directly infringed and induced infringement of the ‘419 patent by their use and instructions for use.
A preliminary injunction requested by Olaplex was denied in July 2017. The court ruled that L’Oréal’s products do not infringe Olaplex’s and that Olaplex “failed to show a likelihood of success on the merits of its infringement claims”.
However, the US Court of Appeals for the Federal Circuit has concluded that the district court erred in its claim construction.
The focus of the dispute concerns the proper construction of the term “hair colouring agent”. L’Oréal argued that its mixture does not contain a hair colouring agent because the concentration is so diluted. However, Olaplex said that the term should mean “a colorant or pigment that is customarily used in hair care products, which changes the colour or tone of the hair it is applied to based on visual inspection”.
Olaplex highlighted that hair colouring agents may not actually colour hair, while hair dye must.
According to the Federal Circuit, the district court said the mixture did not contain a hair colouring agent and therefore the construction excluded L’Oréal’s products.
The Federal Circuit ruled it does not agree with the district court’s denial for a preliminary injunction and that further proceedings will be conducted.
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