Mixed result at CAFC in OLAPLEX case

The outcome:

Liqwd, Inc. (“Liqwd”) and Olaplex LLC filed suit in the United States District Court for the District of Delaware, alleging that L’Oréal USA, Inc., L’Oréal USA Products, Inc., L’Oréal USA S/D, Inc., and Redken 5th Avenue NYC, L.L.C. (together “L’Oréal”) infringed claims 1 and 10 of U.S. Patent No. 9,498,419 (the “’419 patent”) and claims 1, 4, 11–16, 19, 20, and 30 of U.S. Patent No. 9,668,954 (the “’954 patent”). The district court granted Liqwd and Olaplex LLC summary judgment of direct and indirect infringement on all claims and issued a permanent injunction. L’Oréal appealed. Following post-grant review proceedings before the Patent Trial and Appeal Board (“Board”), only claims 14–16 of the ’954 patent survive. As to these claims, we affirm the district court’s claim construction. But because there are genuine questions of material fact relating to infringement of these claims under that claim construction, we vacate and remand for trial.1 Additionally, we grant Liqwd and Olaplex LLC’s motion to substitute Olaplex, Inc



A PTAB decision was involved:

During the pendency of the district court proceeding at issue here, L’Oréal filed petitions for post-grant review of the ’419 and ’954 patents. The Board held claims 1–8 and 10 of the ’419 patent unpatentable as obvious. The Board also found that L’Oréal copied an unpublished patent application owned by Olaplex, Inc.’s predecessors in interest, but that this evidence of copying was not relevant to obviousness because there was no evidence L’Oréal copied a patented product. On appeal, we concluded that this evidence of copying was relevant to the obviousness determination and had to be considered by the Board. On remand, the Board again concluded that claims 1–8 and 10 of the ’419 patent were unpatentable as obvious. Although Olaplex, Inc. initially appealed the Board’s remand decision, it later voluntarily dismissed its appeal.

The CAFC noted:

First, L’Oréal’s construction would render the claim term “maleic acid” meaningless because both parties agree that maleic acid is neutralized and transformed into maleate (a salt) once added to an alkaline bleaching solution. Consequently, there would be no maleic acid in the final bleaching solution under L’Oréal’s construction, and the claim limitation would never be satisfied. See Wasica Fin. GmbH v. Cont’l Automotive Systems, Inc., 853 F.3d 1272, 1288 n.10 (Fed. Cir. 2017) (“It is highly disfavored to construe terms in a way that renders them void, meaningless, or superfluous.”); Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950– 51 (Fed. Cir. 2006) (rejecting a construction of a term that would render another limitation superfluous).6

Chef America is cited in footnote 6

Our opinion in Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371 (Fed. Cir. 2004), does not require a different result. In Chef America, the claims were only susceptible to one meaning and the patent owner was essentially asking this court to “redraft” the claim to make it operable. 358 F.3d at 1374 (“[W]e construe the claim as written, not as the patentees wish they had written it.”). Here, the claim language supports either proposed construction and Olaplex has presented intrinsic and extrinsic evidence, including expert testimony, supporting its construction.