In a recent case, Liqwd, Inc. v. L’Oreal USA, Inc., the Federal Circuit held that evidence of copying efforts is always relevant. Here are the facts of the case:
The patent litigated in this case was directed to methods for bleaching hair with a formulation comprising maleic acid and a bleaching formulation.
The validity of the patent was challenged in a post-grant review proceeding. In response to the challenge for obviousness, the patent owner presented evidence that the opposing parties had copied its invention, as objective indicia of non-obviousness. The evidence included declarations and supporting records disclosed under a non-disclosure agreement.
However, the Patent Trial and Appeal Board (PTAB) determined the evidence of copying was irrelevant and that the claims were obvious.
The Federal Circuit disagreed.
The Federal Circuit stated that “although copying requires the replication of a specific product, in any case, the question of legal relevancy was determined by whether there was actual evidence of copying efforts and not whether the copying efforts involved a ‘specific product’.”
I can never stress enough the risks associated with the disclosure of an invention to a potential competitor regardless of the presence of a non-disclosure agreement.
Please contact me at firstname.lastname@example.org with questions or comments.
Silvia Salvadori, PhD