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On January 28, 2021, the Federal Circuit affirmed the general principle that the mere fact of copying by an accused infringer is insufficient to rebut a charge of obviousness (
The appeal related to a post-grant review (PGR) challenge brought by L’Oreal against U.S. Patent No. 9,668,954, relating to methods for bleaching hair using maleic acid. We previously reported the Federal Circuit’s decision on appeal of the PGR of a parent patent (
Liqwd, Inc., v. L’Oreal USA, Inc., appeal from PGR2017-00012) here. In
Liqwd, the Federal Circuit concluded that L’Oreal, the accused infringer, would not have developed products using maleic acid without having had access to the confidential information of Liqwd, Inc., the patent owner. Because the Patent Trial and Appeal Board (PTAB) in