[00:00:00] Speaker 00:
This is number 18-2152.

[00:00:28] Speaker 01:
May it please the court, Sanford Weisburs for the appellant liquid.

[00:00:32] Speaker 01:
Bleaching is a chemical treatment that is performed on hair.

[00:00:35] Speaker 00:
You reserve five minutes of your time for me.

[00:00:37] Speaker 01:
I'd like to reserve four minutes, please, Drina.

[00:00:39] Speaker 01:
Thank you.

[00:00:40] Speaker 01:
Bleaching uses a high pH formulation to open up the hair's outside layers so that hydrogen peroxide can enter and remove the natural pigment from the hair.

[00:00:50] Speaker 01:
It is conducted at a very high pH.

[00:00:53] Speaker 01:
This was because it opens the hair and removes the pigment, it has a side effect of causing damage to the hair because the hair has been swelled, opened up, it becomes somewhat rough.

[00:01:03] Speaker 01:
In the prior art, the processes that were used to deal with that problem were after the bleaching treatment to apply a acidic or low pH solution to smooth the hair.

[00:01:15] Speaker 01:
Now, this was an imperfect solution because it was addressing damage after the fact.

[00:01:19] Speaker 00:
I think we understand the background of the...

[00:01:24] Speaker 00:
patent here.

[00:01:25] Speaker 00:
Can you get right to the copying issue?

[00:01:27] Speaker 01:
Yes, Your Honor.

[00:01:28] Speaker 01:
The copying issue here, as an initial matter, I think it's very important to recognize that the PTAB found, as a matter of fact, and this is at appendix page 45, that L'Oreal did copy Liquid's invention.

[00:01:42] Speaker 01:
Now, L'Oreal is the world's largest beauty company.

[00:01:44] Speaker 01:
Liquid is a small upstart.

[00:01:46] Speaker 00:
So it found that there was a factual finding on that.

[00:01:49] Speaker 00:
Yes.

[00:01:49] Speaker 00:
It shows that.

[00:01:51] Speaker 00:
But it found that the copying was of a confidential patent application, I believe.

[00:01:56] Speaker 01:
That's right.

[00:01:56] Speaker 01:
It was a confidential.

[00:01:57] Speaker 03:
Is that patent application?

[00:01:58] Speaker 03:
As I understand it, it's the parent application.

[00:02:01] Speaker 03:
Is that right?

[00:02:02] Speaker 01:
Yes, it is.

[00:02:03] Speaker 03:
Does it have an identical specification to the patent in suit?

[00:02:08] Speaker 01:
The specification is slightly different, but it's broad enough to encompass the actual specification of the patent and suit.

[00:02:16] Speaker 01:
Both are in the record, Your Honor.

[00:02:18] Speaker 01:
I'm right on both.

[00:02:19] Speaker 01:
Yes.

[00:02:19] Speaker 03:
To me, they look to be essentially identical.

[00:02:21] Speaker 01:
There might be some additional... Yes, we believe for all intents and purposes, they are sufficiently identical to support our arguments here.

[00:02:29] Speaker 01:
Now, why did the PTAB, after making this factual finding, reject copying?

[00:02:34] Speaker 01:
It was because, as Judge Rayna mentioned,

[00:02:36] Speaker 01:
The PTAB said, citing this court's decision in Iron Grip Barbell, you have to copy an actual product.

[00:02:42] Speaker 01:
It's not sufficient to copy a patent.

[00:02:45] Speaker 01:
Now, I think it's important to underscore this was not copying of a public patent.

[00:02:50] Speaker 01:
Iron Grip Barbell was concerned copying doctrine might get so broad if we extend it to every published patent because everyone in the world theoretically has access.

[00:02:57] Speaker 03:
I thought what Iron Grip was saying that

[00:02:59] Speaker 03:
You know, you can't prove copying just by showing that the accused device is identical to what's in the patent.

[00:03:08] Speaker 03:
There has to be something more than just infringement.

[00:03:12] Speaker 01:
Am I right about that?

[00:03:13] Speaker 01:
Yes, there has to be more than just a public patent and being within the scope of that patent, and then you just assume the rest.

[00:03:19] Speaker 01:
Absolutely, Iron Grip Barbell said that, but we do have more here.

[00:03:22] Speaker 01:
What we have is we have a meeting took place in May 2015.

[00:03:25] Speaker 01:
It's described around appendix 3011 by Mr. Crystal, who's the head of liquid.

[00:03:31] Speaker 01:
And then we also have Mr. Crystal saying, and this is unrefuted, that L'Oreal reviewed that unpublished application at this May 2015 meeting.

[00:03:40] Speaker 01:
And then we have L'Oreal launching its own product containing maleic acid within the scope of the patent about a year later in August 2016.

[00:03:48] Speaker 03:
So as you said, the board has found that there was copying here.

[00:03:51] Speaker 03:
And the board, that has not been contested on appeal, right?

[00:03:55] Speaker 01:
As a factual matter, well, L'Oreal does contest the board's factual finding here.

[00:04:00] Speaker 01:
We think that it's supported.

[00:04:01] Speaker 01:
There is a contest on that.

[00:04:03] Speaker 01:
But in terms of the PTAB decision itself, it, in our view, rested entirely on a legal analysis of what Iron Grip barbell.

[00:04:10] Speaker 01:
And I think it's important to mention this court has held in other cases, and I would mention Dupuis Spine, as well as the specialty composites case,

[00:04:17] Speaker 01:
that copying of a patent can provide evidence of copying.

[00:04:22] Speaker 01:
So this court has gone that far in those cases, but this case we think is a fortiori from those cases because this is not just copying a public patent.

[00:04:30] Speaker 01:
The only people in the world who had access to this application in May 2015 were L'Oreal, Liquid, and the PTO.

[00:04:37] Speaker 01:
The world did not.

[00:04:38] Speaker 03:
Do you understand what the policy could be behind the idea that

[00:04:41] Speaker 03:
Copying for purposes of obviousness is only relevant if it's copying of a device that's out there, an actual product or an actual method that's being used.

[00:04:51] Speaker 03:
So I'm having a hard time understanding what the policy would be behind that.

[00:04:56] Speaker 03:
Why it is that you would distinguish copying

[00:04:58] Speaker 03:
of a commercial product or method versus copying of a patent.

[00:05:03] Speaker 03:
If there's copying, aren't they all relevant?

[00:05:06] Speaker 03:
Do you understand what the board's rationale was or what anybody's rationale was?

[00:05:10] Speaker 01:
I don't exactly understand it.

[00:05:12] Speaker 01:
I think what the board may have been getting at is that there's easier access to a public patent.

[00:05:16] Speaker 01:
Go on a website, look at the patent, than there might be to a product where you have to actually acquire the product.

[00:05:23] Speaker 01:
Frankly, if it's a publicly available product, anyone could acquire that as well.

[00:05:26] Speaker 01:
And I believe this court has actually mentioned something along those lines in a few of its cases.

[00:05:31] Speaker 00:
But I think the board was specific in saying that the patent application was confidential, right?

[00:05:39] Speaker 01:
I think the board did understand that, but as a legal matter, what the board failed to do is understand the relevant legal distinction between an unpublished application and a public patent, which this court, again, in Dupuy-Spine and in specialty composites, involved a public patent.

[00:05:55] Speaker 01:
And we think our case is even stronger in the case of an unpublished, because there's a stronger inference of access and copying

[00:06:01] Speaker 01:
that doesn't make copying such a broad doctrine as to apply to every public patent.

[00:06:06] Speaker 01:
And I think that that is a legitimate concern.

[00:06:09] Speaker 01:
So if it were easy to have access to any public patent by going on a website and looking at the patent, or any public product by just going and looking at buying the product and reverse engineering, you should have to show something more.

[00:06:23] Speaker 01:
But again, we have done that, both because it's unpublished, because it was handed across the table at this May 2015 meeting, and because L'Oreal launched its products,

[00:06:31] Speaker 01:
after some eight years from the prior art that it says makes this invention so obvious.

[00:06:36] Speaker 01:
And if your honor will permit me, I'd like to just turn briefly.

[00:06:40] Speaker 03:
Can I ask you another question about copying?

[00:06:42] Speaker 03:
Looking at the board's opinion at JA 46, there's one sentence, and it says, the evidence of record shows that the information Petitioner obtained from Patent Owner related to Patent Owner's technology generally not to any product that embodied the claims.

[00:06:59] Speaker 03:
Is it possible that the board is talking about nexus here and saying that you didn't satisfy your duty to show nexus?

[00:07:07] Speaker 01:
I don't think so, Judge Stoll.

[00:07:09] Speaker 01:
I think what the board was getting at there was, as a factually correct matter, there is no product produced by liquid or its licensee Olaplex that uses maleic acid.

[00:07:19] Speaker 01:
So there was no product existed to be copied.

[00:07:22] Speaker 01:
So the only thing that could have been copied was the technology as described in the patent application.

[00:07:28] Speaker 01:
But to the extent I'm wrong about that, and the board was referring to Nexus, and the word Nexus doesn't really even appear in the board's decision.

[00:07:35] Speaker 01:
So I'm reluctant to make that inference.

[00:07:37] Speaker 01:
But I do want to point out some strong evidence of record for Nexus.

[00:07:41] Speaker 01:
And I think, don't take it from me.

[00:07:42] Speaker 01:
Take it from L'Oreal itself at appendix 2908, where in connection with its own product, it talks about maleic acid having hair repair effects.

[00:07:52] Speaker 01:
And so L'Oreal itself has made this link between maleic acid being used at the same time as a bleaching formulation and having this beneficial effect.

[00:08:01] Speaker 01:
That's the nexus.

[00:08:03] Speaker 03:
Can I say something?

[00:08:04] Speaker 03:
If there isn't nexus, just assuming for a minute, that would create a written description problem, wouldn't it?

[00:08:10] Speaker 03:
Because whether there's a nexus between this parent application and the claims would be the same question as whether your current patent application has written description support for the claims, right?

[00:08:23] Speaker 03:
Since the specifications are virtually identical.

[00:08:29] Speaker 03:
I'm not suggesting there isn't a nexus.

[00:08:31] Speaker 03:
I'm just saying, isn't it so that that's what you'd have to conclude?

[00:08:34] Speaker 03:
I mean, this is not a situation.

[00:08:35] Speaker 03:
This is a situation where you've got a patent specification that's identical to the specification from which the claims came.

[00:08:44] Speaker 03:
So why wouldn't there be a nexus?

[00:08:45] Speaker 03:
That's what I'm suggesting.

[00:08:46] Speaker 01:
I agree.

[00:08:48] Speaker 01:
I think that there absolutely would be a nexus, and there is a nexus based on both that application from May 2015, which talks about using maleic acid in a bleaching formulation at the same time as the bleaching treatment, and the specification in the 419 patent, and L'Oreal's advertisement, and to mention one other record site.

[00:09:05] Speaker 03:
Is that example four in your specification?

[00:09:08] Speaker 01:
Yes, yes, yes.

[00:09:09] Speaker 01:
As well as the claims.

[00:09:11] Speaker 01:
quite clearly, claim one is all about a method for bleaching hair.

[00:09:14] Speaker 01:
That's the very first words.

[00:09:16] Speaker 01:
Now, I think it's important.

[00:09:18] Speaker 01:
We obviously do focus on copying.

[00:09:20] Speaker 01:
We think that's legal error.

[00:09:21] Speaker 01:
It's not even implicating the substantial evidence standard, because it's a legal error here.

[00:09:25] Speaker 01:
And we don't even need to go back to the board, either, for a factual finding, because we already have the factual finding.

[00:09:30] Speaker 00:
Is it legal error?

[00:09:32] Speaker 00:
Do you think that the board articulated a new standard with respect to copying?

[00:09:37] Speaker 01:
I think that the board misunderstood iron grip barbell.

[00:09:41] Speaker 01:
And so I would respectfully suggest, yes, the board gave an incorrect reading to iron grip barbell, which, if it were correct, would bring the standard in conflict with Dupuis spine and specialty composites, as well as cases involving process patents.

[00:09:55] Speaker 01:
And we've cited Institute Pasteur and the Litton case on that point, because our case is not even a product patent.

[00:10:02] Speaker 01:
It's a process patent, so you couldn't

[00:10:04] Speaker 00:
Look at page 45 of the record.

[00:10:14] Speaker 00:
And the last paragraph, I don't know if this is what Judge Stoll was reading before, but if it is, I'm sorry for the repetition.

[00:10:22] Speaker 00:
It says, we are not persuaded, however, that Petitioner's development of its product due to access of non-public information about the patent owner's patent application, as opposed to about the patent owner's products, amounts to copying of the kind that is evidence of non-obviousness.

[00:10:38] Speaker 00:
My concern is that that appears to be a statement

[00:10:43] Speaker 00:
a reached statement of the standard of copying, and that you can never, this type of evidence can never be copying that is evidence of non-obviousness.

[00:10:55] Speaker 00:
In other words, that if you copy a non-public information taken from a patent owner's application, it can never by itself be evidence of non-obviousness.

[00:11:07] Speaker 01:
Right, and our position is that to the extent that

[00:11:10] Speaker 01:
is the standard.

[00:11:25] Speaker 01:
and you did some sort of reverse engineering.

[00:11:27] Speaker 01:
If that's not your argument, then you're out of luck.

[00:11:30] Speaker 01:
You can never present copying.

[00:11:32] Speaker 01:
Now, very briefly, I would like to reserve some rebuttal time, but I'll go into it for just a minute.

[00:11:38] Speaker 01:
Prior art, our central point is that you're talking about high pH processes on the one hand and low pH on the other.

[00:11:44] Speaker 01:
We think that the copying certainly informs that, but we think that the board also lacked substantial evidence, and we've made other objective indicia arguments as well.

[00:11:55] Speaker 01:
One is that the long-felt need, and I think that that's very factually powerful on this case.

[00:12:00] Speaker 01:
The most recent prior art was in 2008.

[00:12:03] Speaker 01:
This is a long-felt need that was felt for decades because of the damage caused by bleaching, and yet we don't have the liquid invention until 2014.

[00:12:12] Speaker 01:
There's a long passage of time

[00:12:14] Speaker 01:
There was a dispute over the exact priority date.

[00:12:17] Speaker 01:
Our position is that the board did not follow its precedent in Polaris Wireless in terms of what the petitioner has to do in its petition.

[00:12:24] Speaker 01:
And with that, unless the court has any other questions for now, I'll reserve.

[00:12:28] Speaker 01:
Okay, thank you.

[00:12:37] Speaker 00:
Councilman Brown.

[00:12:39] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:12:42] Speaker 04:
Michelle O'Brien for Appellee L'Oreal USA.

[00:12:44] Speaker 04:
I want to address the issue that you raised with regard to copying, and Judge Stoll in particular, your question as well about

[00:12:58] Speaker 04:
that you can't prove copying just by showing infringement.

[00:13:03] Speaker 04:
And Iron Grip Barbell does, in fact, say that there needs to be some evidence in other cases as well.

[00:13:09] Speaker 04:
The Applebee-Samsung case has the same thing.

[00:13:12] Speaker 04:
Access plus subsequent alleged access, because L'Oreal does dispute that there was access to any alleged patent application in this case.

[00:13:22] Speaker 04:
This is an issue that's highly disputed in the related district court case.

[00:13:26] Speaker 04:
But in this case,

[00:13:29] Speaker 04:
liquid is alleging nothing more than allegedly access and then also alleging infringement.

[00:13:37] Speaker 04:
One point in in regard to your point Judge Stoll about nexus is the board at appendix 44 did not find that the L'Oreal products are within the scope of the claim and therefore as a matter of law there can be no nexus.

[00:13:53] Speaker 04:
And I think that the board's finding with regard to... Where is that on page 44 that you're pointing to?

[00:14:03] Speaker 03:
It's right in the middle.

[00:14:05] Speaker 04:
The end of that first paragraph.

[00:14:07] Speaker 04:
We do not conclude that those products necessarily fall within the scope of the claims.

[00:14:13] Speaker 04:
Okay.

[00:14:14] Speaker 04:
So the other point with regard to the board's finding on copying and its reliance on iron grit barbell, we believe the board's argument or position here was that liquid failed in meeting its burden of production on

[00:14:32] Speaker 04:
identifying with any specificity whatsoever what was copied there is just a and this goes to the the board's comments that it was the quote patent invention or quote technology generally that was copied.

[00:14:47] Speaker 04:
It is under the Galderma case it is liquids burden or the patent owners burden to identify with specificity what the allegations of secondary indicia are and

[00:15:02] Speaker 04:
that does not then transfer back to the petitioner or L'Oreal in this case to respond to unless they've met their burden.

[00:15:12] Speaker 03:
Earlier Judge Reena read a portion of the board's opinion at page A45 about how we are not persuaded that petitioner's development of its products due to access to non-public information about patent owners' patent application

[00:15:27] Speaker 03:
as opposed to about patent owner's products, amounts to copying of the kind that is evidence of non-obviousness.

[00:15:34] Speaker 03:
Do you agree with that distinction that the board is making there between the copying of a patent owner's products versus a patent owner's patent application?

[00:15:44] Speaker 04:
Well, as an initial matter, we don't agree with the board's finding that the products were developed as a result of access.

[00:15:51] Speaker 03:
I know that, but setting that aside, do you agree with this statement of the law?

[00:15:57] Speaker 04:
So I think that here the board is following the precedential cases that it cites in its case and that are in the record.

[00:16:08] Speaker 04:
I think that the cases hold that there has to be, for there to be copying, there has to be some actual specific product or something identified

[00:16:25] Speaker 04:
in order to satisfy the copying requirement.

[00:16:30] Speaker 02:
I think that it could be.

[00:16:42] Speaker 02:
It seems like that the board made findings that kind of support that here, but got rid of, but still didn't find copying because it believed there had to be a product.

[00:16:52] Speaker 02:
It said L'Oreal had access to this private patent application that describes the process.

[00:17:01] Speaker 02:
And maybe it didn't make the next finding that it could have or should have that they L'Oreal copied that process.

[00:17:10] Speaker 02:
But hypothetically, if that's what happened, you got access to a private application that described a specific process, and there's evidence showing that you copied that process.

[00:17:24] Speaker 02:
Why isn't that a secondary indicia of copying?

[00:17:29] Speaker 02:
Well, I have two... Don't dispute the facts.

[00:17:32] Speaker 02:
No, I won't, of course.

[00:17:34] Speaker 04:
I have two points.

[00:17:35] Speaker 04:
Hypothetically, if your situation was the fact here, then I think that I go back to the failure of evidence

[00:17:47] Speaker 04:
by the patent owner, the party alleging that it was copied in identifying anything that was copied.

[00:17:55] Speaker 04:
So as far as what was copied.

[00:17:57] Speaker 02:
Wait, but you're kind of disputing the facts.

[00:17:59] Speaker 02:
I mean, the facts of the hypothetical were you actually did copy a process from the patent application.

[00:18:06] Speaker 02:
You're saying in this case, the patent owner hasn't shown anything specific that you copied, just that generally they had that you had access

[00:18:17] Speaker 02:
to the patent application and what you came up with ultimately might infringe that but that's different than hypothetical which is you had application or you had access to the application and you did actually copy a process therein.

[00:18:34] Speaker 02:
In that case wouldn't that be evidence of copying?

[00:18:40] Speaker 04:
I don't know if that would be evidence of copying that would support a case of

[00:18:44] Speaker 04:
facial obviousness, or non-obviousness I should say.

[00:18:47] Speaker 04:
But why?

[00:18:51] Speaker 04:
Because I think that the cases that are currently being followed are suggesting that there has to be something specific.

[00:19:02] Speaker 02:
What more specific could you have than a fact-finding

[00:19:06] Speaker 02:
Again, hypothetically, that you copied a specific process from a PAT application that nobody else had access to.

[00:19:14] Speaker 04:
OK.

[00:19:15] Speaker 04:
And I think maybe what I'm missing here in the hypothetical, and I apologize.

[00:19:20] Speaker 04:
I'm not trying to not answer your question, is are we also assuming that there is actual evidence?

[00:19:25] Speaker 04:
Or is this, again, just an access plus copying situation?

[00:19:31] Speaker 02:
No, I mean, that's the point of that.

[00:19:33] Speaker 02:
I think you're right.

[00:19:34] Speaker 02:
Access plus potential infringement seems to me to be a pretty slim read for copying.

[00:19:39] Speaker 02:
Right.

[00:19:40] Speaker 02:
Access plus maybe internal documentation from Morial that says, look at this process here.

[00:19:47] Speaker 02:
This is pretty good.

[00:19:48] Speaker 02:
Let's copy it.

[00:19:51] Speaker 02:
Isn't that copying?

[00:19:52] Speaker 04:
Well, in that hypothetical situation, I think that

[00:19:57] Speaker 04:
and assuming this is some third party, then yes, I think that you could make a case for copying with those facts.

[00:20:04] Speaker 02:
As something to be considered, even though I think we've said that copying alone is usually not good enough to overcome a very strong criminal case.

[00:20:13] Speaker 04:
That is correct.

[00:20:14] Speaker 04:
That is correct.

[00:20:15] Speaker 04:
That is correct.

[00:20:16] Speaker 02:
The other thing that we believe with... But isn't the error here by the board that it didn't apply that right legal standard for copying and that it should have looked and seen whether the evidence here supported copying by L'Oreal as opposed to just an inference of copying because of access.

[00:20:36] Speaker 02:
It didn't make any of those conclusions.

[00:20:38] Speaker 02:
It said, I think applying a wrong standard, you only have copying if it's copying of a product.

[00:20:45] Speaker 04:
I don't think that we would even need to get to that question in this case for several reasons, one of which is, as I said before, I believe that the board's reference or discussion of copying the technology generally

[00:21:01] Speaker 04:
shows that the that liquid failed to meet its burden of production on the secondary indicia prong with regard to copying and then the second point there is because the board found did not find that the

[00:21:19] Speaker 04:
products were in the scope of the claim, I don't think that Nexus can be established.

[00:21:23] Speaker 00:
Isn't this the problem here that the board just tossed out the question of copying because a specific product was not copied?

[00:21:34] Speaker 00:
So the board said it's irrelevant.

[00:21:36] Speaker 00:
For the issue of non-augusness, copying in this case is irrelevant because it wasn't a specific product.

[00:21:44] Speaker 00:
It was something else.

[00:21:44] Speaker 00:
It was the application.

[00:21:47] Speaker 00:
And if that's wrong, and it seems to me that you agree, you're saying that if that was interpretation, there was a wrong interpretation by the board.

[00:21:57] Speaker 04:
I don't think so, Your Honor, because there is no additional evidence that there was actual copying in this case.

[00:22:06] Speaker 00:
And in fact, the evidence is a finding.

[00:22:09] Speaker 00:
There's a finding of actual copy.

[00:22:11] Speaker 00:
So we believe that the board said we're not going to consider it.

[00:22:16] Speaker 00:
It's irrelevant.

[00:22:17] Speaker 04:
And we believe that the board's refusal to give evidentiary weight to the laboratory notebook was a legal error.

[00:22:24] Speaker 04:
The reason that they said they weren't giving weight to the notebook, which showed that L'Oreal was in possession of a bleaching process using maleic acid a month before this alleged access, was because the purpose for which the maleic acid was being used in the bleaching process wasn't clear.

[00:22:45] Speaker 04:
to them, but the purpose is irrelevant because it's not in the claim.

[00:22:48] Speaker 04:
The claim is simply a method of bleaching hair with malic acid in it.

[00:22:53] Speaker 04:
So it doesn't matter why L'Oreal did it, they were doing it a month ahead of time.

[00:22:58] Speaker 04:
You can't copy what they already have.

[00:23:00] Speaker 03:
Your point, as I understand it, is that we shouldn't have to address this legal error by the board.

[00:23:06] Speaker 03:
Correct.

[00:23:07] Speaker 03:
You think that there's sufficient evidence and record for us to conclude that the board erred in finding that you didn't copy.

[00:23:14] Speaker 03:
But if we disagree with you, just hypothetically, if we disagreed with you, you would agree that at a minimum there needs to be a vacate and remand, right?

[00:23:22] Speaker 04:
No, I don't.

[00:23:23] Speaker 03:
Why not?

[00:23:23] Speaker 04:
So I think there are several reasons why this does not need to be remanded besides the fact that

[00:23:29] Speaker 04:
the board, or the board, I apologize, that liquid did not satisfy its burden of production, and the burden never shifted to L'Oreal to refute that on any of the, either of the two secondary indicia positions that it took long felt need, which the board- Well, we're just talking about copying right now.

[00:23:49] Speaker 04:
Right, and copying.

[00:23:50] Speaker 04:
So on either of those, they never met their burden of production.

[00:23:55] Speaker 04:
the the secondary in this war has always the board concluded that there was copying by lori up so why didn't they meet their burden of production because they they didn't identify with any specificity what was copied and as a result they could not get the method of using the lake asking they never identified that the first time in this record that they have said what was copied is in the reply brief in this appeal that the board did not have any

[00:24:24] Speaker 04:
information in front of it.

[00:24:26] Speaker 00:
If the board says in its final written determination that we cannot consider evidence of copying if what was copied was information or information taken from a patent application and not a specific product.

[00:24:44] Speaker 00:
Is that error?

[00:24:46] Speaker 04:
I'm sorry, can you repeat that please?

[00:24:48] Speaker 00:
Okay, if the board has said that

[00:24:52] Speaker 00:
Any evidence of copying is irrelevant if it's not copied from a specific product.

[00:25:01] Speaker 00:
Is that an erroneous statement of our law?

[00:25:05] Speaker 04:
I don't believe that it is.

[00:25:06] Speaker 04:
I think that there are more variables that need to be considered.

[00:25:13] Speaker 00:
So if you copy a method,

[00:25:15] Speaker 00:
which is not a specific product.

[00:25:17] Speaker 00:
If you copy a method, that can never be considered as... No, no.

[00:25:22] Speaker 04:
I didn't say that.

[00:25:23] Speaker 04:
I think what I meant was... Well, I'm asking now.

[00:25:25] Speaker 04:
Right.

[00:25:25] Speaker 00:
What I meant was copying a specific process... Can copying of a method qualify as objective indicia of non-augustness?

[00:25:35] Speaker 04:
If all of the other requirements are met, which they aren't here.

[00:25:42] Speaker 04:
for example, be the failure to show any actual evidence of copying.

[00:25:47] Speaker 04:
And as I say, L'Oreal already had them.

[00:25:52] Speaker 02:
Are you essentially arguing that the board, even though it might have aired in the way it legally described the secondary consideration, it still can be affirmed because there is insufficient evidence of copying to provide a secondary consideration because all we have is

[00:26:13] Speaker 02:
a finding of access, and a finding of something else, I guess.

[00:26:18] Speaker 04:
And no finding of the products being within the scope of the claim.

[00:26:22] Speaker 04:
So really all they found was.

[00:26:24] Speaker 02:
So access alone shouldn't be considered copying.

[00:26:27] Speaker 02:
It has to be more direct evidence that you actually had access to something, and you actually copied something specific there.

[00:26:36] Speaker 04:
Yes.

[00:26:38] Speaker 03:
Can I ask one other thing?

[00:26:39] Speaker 03:
You said earlier that there was

[00:26:43] Speaker 03:
that liquid hadn't shown exactly what it was that was copied.

[00:26:47] Speaker 03:
But how do I read the sentence on page 30 of the board's opinion where it says, the preponderance of the evidence suggests that the petitioner used maleic acid because of its access to patent owners' non-public information rather than because of petitioners' own independent development.

[00:27:03] Speaker 03:
Isn't that identifying a specific thing that at least the board thinks

[00:27:09] Speaker 03:
was copied.

[00:27:09] Speaker 03:
And I understand your other arguments.

[00:27:11] Speaker 03:
I just want to make sure I understand the specific point you're making about not knowing exactly what was copied.

[00:27:19] Speaker 04:
So to that point, Your Honor, if that is what the board bases the finding of copying on, the board also found that the use of maleic acid in a bleaching process was already in the prior art.

[00:27:33] Speaker 04:
Ogawa, Kitabata, and KR 564

[00:27:36] Speaker 04:
already used amylaic acid in a bleaching process and for the nexus to be established they have to connect it to some novel aspect of the prior art.

[00:27:55] Speaker 00:
Thank you.

[00:27:59] Speaker 01:
I'd like to start with what the evidence was.

[00:28:01] Speaker 01:
I think it's pretty clear that the board understood that this technology generally was a synonym for the application.

[00:28:07] Speaker 01:
the unpublished patent application.

[00:28:09] Speaker 01:
And beyond that, though, absolutely liquid made this showing, satisfied its burden of production in the PTAB.

[00:28:16] Speaker 01:
And I'd refer the Court to Appendix 3012, and briefly I'll read it.

[00:28:20] Speaker 01:
This is Mr. Kristol's declaration concerning the meeting in May 2015.

[00:28:23] Speaker 01:
This declaration was not refuted by L'Oreal.

[00:28:26] Speaker 01:
I told petitioners' representatives that cheaper alternatives to Olaplex's active agent were contained in the patent application that I had earlier given to Ms.

[00:28:34] Speaker 01:
Allard.

[00:28:35] Speaker 01:
Petitioners' representatives spoke with Dr. Presley and asked him questions.

[00:28:39] Speaker 01:
Ms.

[00:28:39] Speaker 01:
Allard asked how we determined which compounds, including maleic acid, were effective and which were not.

[00:28:44] Speaker 01:
This is important because it's not just access.

[00:28:47] Speaker 01:
Yes, they had access, but then they asked questions about it.

[00:28:50] Speaker 01:
They were very interested in this point.

[00:28:51] Speaker 01:
They asked questions at the meeting.

[00:28:54] Speaker 01:
This is an Access Plus case, absolutely.

[00:28:56] Speaker 01:
And we believe that the board looked at all of that, looked at this declaration, which was the key evidence of copying, and made its finding at page 45 that Judge Stoll referenced.

[00:29:05] Speaker 02:
Now, there was discussion about whether... If maleic acid was in the prior art, how is that evidence of secondary consideration when you're considering the same thing?

[00:29:19] Speaker 01:
maleic acid was not in the prior art in the way that it is in the 419 patent.

[00:29:24] Speaker 01:
Let me try to explain why.

[00:29:26] Speaker 01:
Maleic acid in, so there's two, basically there's four prior art references and there's two on the one hand and two on the other.

[00:29:33] Speaker 01:
Ogawa and Kitabata

[00:29:35] Speaker 01:
Both mention maleic acid, but they're not using it for hair repair.

[00:29:38] Speaker 01:
They're using it for pH adjustment, and they're using it for chelating of metals.

[00:29:43] Speaker 01:
The two patents that did use maleic acid for a process that's similar to repair, although it was after the fact, are KR-564 and Berkamer.

[00:29:52] Speaker 01:
Now, the key distinction in the prior art, why those never came together, is because you couldn't mix.

[00:29:58] Speaker 01:
The prior art did not teach mixing a high pH process, which is Ogawa and Kitabata, with a low pH process.

[00:30:05] Speaker 01:
But even if the court thinks that the evidence is somewhat in equipoise there.

[00:30:08] Speaker 02:
Yeah, I'm sorry.

[00:30:08] Speaker 02:
I didn't mean to open up the obviousness argument.

[00:30:11] Speaker 02:
I should have told you to assume I agree with the board that there's strong evidence of obviousness.

[00:30:17] Speaker 02:
If that strong evidence includes the very

[00:30:20] Speaker 02:
you know, thing you're talking about was copied, why is that a relevant secondary consideration?

[00:30:26] Speaker 01:
We would submit that cases from this Court, such as Millennium Pharmaceuticals cited in our brief, require the Court always to consider secondary considerations before reaching a determination of obviousness, but we also respectfully disagree that the Board had any evidence, much less substantial evidence, that you could combine.

[00:30:42] Speaker 02:
But again, can I just ask you, try asking it one more time?

[00:30:45] Speaker 02:
Yes.

[00:30:47] Speaker 02:
The prior art they relied on is correct and provides a strong pre-infection case of obviousness.

[00:30:53] Speaker 02:
And the one element, and I know this is all hypothetical, you don't agree with all this, the one element that you alleged them to have copied malleic acid is in the prior art.

[00:31:04] Speaker 02:
How can that ever be a strong enough secondary consideration to overcome a pre-infection case?

[00:31:12] Speaker 01:
Well, taking the hypothetical that there is a very strong prima facie case, it might be difficult to overcome it.

[00:31:18] Speaker 01:
However, we don't think the case is so strong.

[00:31:20] Speaker 01:
I'm hesitant to resist your honor's hypothetical, but I have to just make clear my position.

[00:31:24] Speaker 01:
We think that the prior art is far from clear on combining a high pH process and a low pH process.

[00:31:30] Speaker 01:
Given that, at best for L'Oreal, equipoise on that issue, copying had to be considered.

[00:31:35] Speaker 01:
It was considered, as a matter of fact, by the PCAB, they legally erred, and this Court should reverse.

[00:31:42] Speaker 01:
Thank you, Your Honor.

[00:31:43] Speaker 00:
Okay, we thank all the parties for their arguments.

[00:31:46] Speaker 00:
And just as a reminder, this Court's now going to go into brief recess, and we'll reconvene and we'll reconstitute as a different panel for purposes of the next argument, which will be Quake versus Low.

[00:32:02] Speaker 00:
This Court's down recess.