Issues of enablement, science in spray-on cosmetics case

Classified Cosmetics sued Del Laboratories, Inc. in 2003 for patent infringement of Classified’s U.S. Patent No. 6,589,541 entitled “Sprayable Beautifying Composition.” In its infringement lawsuit, Classified asserted that Del intentionally copied Classified’s aerosol makeup products. A Los Angeles Federal District Court judge ruled that Classified’s patent was not “enabled” [35 USC 112] based on the opinion of an expert Del hired for the lawsuit and based on tests designed by Del’s lawyers.

Classified appealed, requesting that the CAFC reverse the District Court’s ruling because it was a clear error of law. In its oral argument on Nov. 6 before a three judge panel, Classified argued that the opinion of Del’s expert was not scientific, and that the District Court failed to consider properly Classified’s evidence that showed the opinion of Del’s expert was fatally flawed.

[information from a press release]