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Liqwd, Inc. v. L'Oreal USA, Inc.

United States Court of Appeals, Federal Circuit

October 17, 2019

LIQWD, INC., Appellant
v.
L'OREAL USA, INC., Appellee

          Public Opinion Issued: October 30, 2019 [*]

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. PGR2017-00012.

          Sanford Ian Weisburst, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, argued for appellant. Also represented by Joseph M. Paunovich, Los Angeles, CA; Matthew Kemp Blackburn, Diamond McCarthy LLP, San Francisco, CA; Rivka D. Monheit, Pabst Patent Group, LLP, Atlanta, GA.

          Michelle E. O'Brien, The Marbury Law Group, PLLC, Reston, VA, argued for appellee. Also represented by Timothy James Murphy.

          Before Reyna, Hughes, and Stoll, Circuit Judges.

          Reyna, Circuit Judge.

         Liqwd, Inc., appeals from a decision by the Patent Trial and Appeal Board that certain claims in its patent on formulations and methods of keratin treatment are unpatent-able as obvious. In its obviousness analysis, based on evidence presented by Liqwd, the Board found that L'Oreal USA, Inc., used Liqwd's confidential information and copied Liqwd's patented method. But the Board disregarded its factual finding when concluding that the copying involved was legally irrelevant. Because that conclusion was error, we vacate the Board's obviousness determination and remand. We agree with the other appealed aspects of the Board's final written decision.

         Background

         I.

         Liqwd, Inc. owns U.S. Patent No. 9, 498, 419 ("the '419 patent"), titled "Keratin Treatment Formulations and Methods." The '419 patent relates to formulations and methods of treating hair, skin, or nails by mixing compounds with a coloring or bleaching formulation to achieve a repairing or strengthening effect. The described formulations contain polyfunctional compounds referred to as "active agents" that may be maleic acid, salts thereof, or other compounds. See '419 patent col. 7 l. 15-col. 11 l. 18, col. 21 l. 12-col. 25 l. 40.

         Claim 1 is the only independent claim subject to dispute in this case:

1. A method for bleaching hair comprising:
(a) mixing a formulation comprising an active agent with a bleaching formulation, wherein the active agent has the formula:

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