Fed. Cir. Says Evidence of Copying is Relevant to Obviousness

Written November 1, 2019

The US Court of Appeals for the Federal Circuit on October 30, 2019, vacated and remanded a Patent Trial and Appeal Board (PTAB) decision which found Liqwd Inc.’s keratin treatment patent invalid for obviousness, because evidence that L’Oreal USA, Inc., used Liqwd’s confidential information and copied Liqwd’s patented method should have been considered in determining whether the patent was valid. Liqwd Inc. v. L’Oreal USA Inc., Fed. Cir., No. 2018-2152, unsealed 10/30/19.

Liqwd’s patent covers a keratin treatment for hair, skin, or nails using maleic acid. L’Oreal challenged the patent’s validity at the PTAB, which found the patent invalid as obvious based on a combination of prior art. The Board considered evidence L’Oreal copied from Liqwd’s unpublished patent application to create its own keratin treatment with maleic acid, but found it irrelevant. The Federal Circuit vacated the PTAB’s decision, finding that L’Oreal’s copying of Liqwd’s application should have been considered as evidence that the patent wasn’t obvious.