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Liqwd, Inc. v. L’Oreal USA, Inc.

“Copying” Analysis in Obviousness Not Restricted to Copying Products

Liqwd, Inc. v. L’Oreal USA, Inc., __ F.3d __, 2019 WL 5587047 (Fed. Cir. Oct. 17, 2019) (REYNA, Hughes, Stoll) (PTAB) (2 of 5 stars)

Fed Cir vacates PGR decision that certain Liqwd claims are unpatentable as obvious. The claims relate to formulations for bleaching hair, skin, or nails that protect hair during the process. The Board erred in evaluating objective evidence of copying by not giving weight to its own prior determination that L’Oreal had only developed certain new products after reviewing Liqwd’s confidential patent application (provided under NDA). Because the copying analysis is not limited to copying of products, but can include copying derived from patent documents or published articles, per DePuy Spine, 567 F.3d 1314 (Fed. Cir. 2009), and Institut Pasteur, 738 F.3d 1337 (Fed. Cir. 2013), that determination is relevant to gauging copying. Iron Grip Barbell, 392 F.3d 1317 (Fed. Cir. 2004), relied on by the Board, is not contradictory. That case’s statement that “copying requires replication of a specific product,” 392 F.3d at 1325, derogated copying proofs that merely alleged similarities in design without showing copying. It did not bar evidence of copying non-product items.

KEYWORDS: POST-GRANT REVIEW; OBVIOUSNESS; OBJECTIVE INDICIA OF NONOBVIOUSNESS; COPYING