Copying May Show Nonobviousness Even If No Specific Product Is Copied

| Jeremy Anapol


Before Reyna, Hughes, and Stoll. Appeal from the Patent Trial and Appeal Board.

Summary: Evidence of copying was relevant to nonobviousness even though the copied feature came from an unpublished patent application rather than a product.

L’Oreal filed a petition with the Patent Trial and Appeal Board for post grant review of a Liqwd patent, asserting obviousness. The patent covered a method for bleaching hair. Liqwd presented evidence that L’Oreal copied parts of Liqwd’s method from an unpublished patent application that Liqwd disclosed to L’Oreal under a nondisclosure agreement. The Board found that L’Oreal engaged in such copying, but held that it was irrelevant to obviousness. To make the copying relevant, the Board believed Liqwd would need to show that L’Oreal copied a “specific product” that embodied the claimed invention. In the end, the Board concluded the patent was obvious. Liqwd appealed.

The Federal Circuit held that the Board’s decision to disregard the copying evidence was error. The Federal Circuit explained that the relevance of copying evidence does not turn on whether a specific product was copied. To prove copying, the evidence must show that a party duplicated features of the patentee’s work based on access to the work. The Board found such copying, but failed to weigh that copying in its obviousness analysis. Accordingly, the Federal Circuit vacated the Board’s decision and remanded with instructions for the Board to weigh the copying appropriately.

Editor: Paul Stewart