Trials@uspto.gov
`Tel: 571-272-7822
`
`PUBLIC VERSION
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`Paper 120
`Date: December 9, 2020
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`L’ORÉAL USA, INC.,
`Petitioner,
`v.
`OLAPLEX, INC.,1
`Patent Owner.
`
`PGR2017-00012
`Patent 9,498,419 B2
`
`
`
`
`
`
`
`
`
`Before CHRISTOPHER M. KAISER, MICHELLE N. ANKENBRAND,
`and DAVID COTTA, Administrative Patent Judges.
`KAISER, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision on Remand
`Determining All Challenged Claims Unpatentable
`35 U.S.C. §§ 144, 328(a)
`
`
`
`
`
`1 Previously, the Patent Owner was identified as Liqwd, Inc. See, e.g.,
`Paper 4, 1. The challenged patent is now owned by Olaplex, Inc.
`Paper 109, 1.
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`
`INTRODUCTION
`
`A. Background
`L’Oréal USA, Inc. (“Petitioner”) filed a Petition requesting post-grant
`review of claims 1–8 and 10 of U.S. Patent No. 9,498,419 B2 (Ex. 1001,
`“the ’419 patent”). Paper 2 (“Pet.”). Liqwd, Inc. (“Patent Owner”) filed a
`Preliminary Response. Paper 7 (“Prelim. Resp.”). We instituted trial on two
`of the grounds asserted in the Petition. Paper 17 (“Inst. Dec.”). After the
`Supreme Court’s decision in SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348
`(2018), we also instituted on the remaining ground presented in the Petition.
`Paper 97.
`After we instituted trial, Patent Owner filed a Response (Paper 44,
`“PO Resp.”), and Petitioner filed a Reply (Paper 55). Patent Owner filed
`Observations on Cross-Examination of Petitioner’s Reply Witnesses. Paper
`77 (“PO Obs.”). Patent Owner filed a Supplemental Response addressing
`the ground added to the trial after SAS, and Petitioner filed a Supplemental
`Reply. Paper 100 (“Supp. Resp.”); Paper 101 (“Supp. Reply”). In addition,
`both parties filed Motions to Exclude Evidence. Paper 72 (“PO Mot.”);
`Paper 73 (“Pet. Mot.”). On the request of both parties, we held an oral
`hearing, and the transcript of that hearing is in the record. Paper 98.
`After considering the arguments of both parties and the evidence of
`record, we concluded that each of claims 1–8 and 10 of the ’419 patent was
`unpatentable, and we issued a Final Written Decision explaining those
`conclusions. Paper 102 (“Dec.”). Patent Owner appealed, and the U.S.
`Court of Appeals for the Federal Circuit vacated our decision and remanded
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`the proceeding to us with instructions. Liqwd, Inc. v. L’Oreal USA, Inc., 941
`F.3d 1133, 1133–39 (Fed. Cir. 2019).
`On remand, each party submitted an opening brief setting forth the
`issues for us to decide and its arguments on those issues. Paper 111 (“PO
`Remand Br.”); Paper 112 (“Pet. Remand Br.”). Each party then filed a
`response to the other party’s remand brief. Paper 113 (“PO Remand
`Reply”); Paper 114 (“Pet. Remand Reply”).
`We have jurisdiction under 35 U.S.C. § 6, and we issue this Final
`Written Decision on Remand pursuant to 35 U.S.C. §§ 144 and 328(a). For
`the reasons discussed below, we conclude that Petitioner has established by
`a preponderance of the evidence that each of claims 1–8 and 10 of the ’419
`patent is unpatentable.
`
`B. The Issues on Remand
`In our original Final Written Decision, we found that Ogawa2 did not
`anticipate claims 1–6, 8, and 10 of the ’419 patent. Dec. 11. We also
`concluded that claims 1–8 and 10 would have been obvious over the
`combination of Ogawa, Berkemer, 3 and KR ’564. 4 Id. at 32. Finally, we
`
`
`2 Ogawa et al., U.S. Patent No. 7,044,986 B2, issued May 16, 2006
`(Ex. 1002, “Ogawa”).
`3 Berkemer, German Patent Application Publication No. 1,220,969,
`published July 14, 1966 (Ex. 1003) (certified translation provided as
`Ex. 1004, “Berkemer”).
`4 Korean Patent Application Publication No. 10-2006-0059564, published
`2006 (Ex. 1006) (certified partial translation provided as Ex. 1018,
`“KR ’564”).
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`concluded that claims 1–8 and 10 would have been obvious over the
`combination of Kitabata, 5 Berkemer, and KR ’564. Id. at 40. On appeal,
`Patent Owner argued that we erred in our original Final Written Decision in
`holding that its evidence of copying was not relevant as evidence of
`nonobviousness on the basis that Patent Owner had not shown that Petitioner
`copied a specific patented product. See, e.g., Dec. 31 (relying on Iron Grip
`Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004)).
`The Federal Circuit affirmed our finding that “L’Oréal copied Liqwd’s
`patented method of using maleic acid.” Liqwd, 941 F.3d at 1139. But the
`Court held that we erred by holding this copying immaterial absent evidence
`that Petitioner had coped a specific patented product. Id. at 1136–38.
`Because of this error, the Federal Circuit vacated our “obviousness
`determination[s]” and remanded the case with instructions to “consider th[e]
`finding [of copying] and weigh it appropriately in [our] obviousness
`analysis.” Id. at 1139. The Federal Circuit otherwise agreed with our
`findings and conclusions. Id. (“we agree with the other appealed aspects of
`the Board’s final written decision”). We have considered and weighed the
`evidence of copying. And, having considered our obviousness
`determinations and conclusions anew in light of the copying evidence, as
`explained below, we conclude that, based on a preponderance of the
`evidence of record, the claims are unpatentable based on the obviousness
`grounds advanced in the Petition. Except to the extent that they are further
`
`
`5 Kitabata et al., US 2002/0189034 A1, published Dec. 19, 2002 (Ex. 1005,
`“Kitabata”).
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`explained below or contradicted by any statement herein, we maintain the
`analysis, findings, and conclusions reached in the earlier Final Written
`Decision, which we incorporate by reference. See Paper 102.
`
`C. The ’419 Patent
`The ’419 patent “generally relates to formulations and methods for
`treating keratin in hair, skin, or nails, and in particular for strengthening
`and/or repairing hair during or after a coloring or permanent wave
`treatment.” Ex. 1001, 1:16–19. Certain treatments of hair, including dyeing
`and bleaching, can result in the disulfide bonds of the hair’s keratin being
`broken, and the ’419 patent expresses “a need for hair formulations and
`treatments that repair and/or strengthen keratin in hair damaged [by these
`treatments].” Id. at 1:31–2:44. The ’419 patent “provide[s] improved
`formulations and methods for repairing and/or strengthening damaged hair.”
`Id. at 2:49–51. The formulations of the ’419 patent “may be applied
`simultaneously with the hair coloring formulation or subsequently to the
`application of the hair coloring formulation.” Id. at 17:32–34. These
`formulations are described as containing “an active agent” that may be any
`of a large number of compounds, including maleic acid or salts thereof. Id.
`at 7:42–11:18.
`
`D. Illustrative Claim
`Of the challenged claims of the ’419 patent, claim 1 is independent
`and illustrative. It recites:
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`1. A method for bleaching hair comprising:
`(a) mixing a formulation comprising an active agent with a
`bleaching formulation, wherein the active agent has the
`formula:
`
`
`
`or salts thereof;
`and
`(b) applying the mixture to the hair;
`wherein the active agent in the mixture is at a concentration
`ranging from about 0.1% by weight to about 50% by weight;
`and
`wherein the mixture does not contain a hair coloring agent.
`Ex. 1001, 25:42–26:5. The compound shown in the formula in claim 1 is
`maleic acid. Ex. 1008 ¶ 59.
`
`ANALYSIS
`A. Asserted Obviousness over Ogawa, Berkemer, and KR ’564
`We begin by considering the obviousness of the challenged claims
`over the combination of Ogawa, Berkemer, and KR ’564 in light of the facts
`we found in our earlier Final Written Decision.
`
`1. Claim 1
`a. Facts Supporting a Conclusion of Obviousness
`In our earlier Final Written Decision, we found several facts that tend
`to support a conclusion that claim 1 would have been obvious over Ogawa,
`Berkemer, and KR ’564.
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`First, we found that “Ogawa teaches or suggests all of the limitations
`recited in claim 1 when maleic acid is used as the chelating agent in the
`mixture of Ogawa’s Example 3.” Dec. 13 (citing Ex. 1002, 5:40–46, 6:20–
`25, 7:1–31). We also found that “Ogawa teaches that the chelating agent . . .
`may be maleic acid or any of seven other compounds, rather than the salt of
`ethylenediaminetetraacetic acid or the ascorbic acid that is disclosed in
`Example 3.” Id. (citing Ex. 1002, 2:61–3:3). We found that Ogawa
`“teaches using maleic acid in its method.” Id. at 20 (citing Ex. 1002, 2:61–
`3:1, 8:34–39). In addition, we found that “the teachings of Berkemer and
`KR ’564 would have led a person of ordinary skill in the art to make th[e]
`choice” to select “maleic acid from among the ten acids Ogawa lists as
`illustrative chelating agents.” Id. at 20–24 (citing Ex. 1002, 1:44–53, 7:44–
`8:16, 8:34–39; Ex. 1004, 1:34–2:5, 2:12–17, 2:19–37, 3:23–24; Ex. 1018, 3;
`Ex. 1026, 44:16–46:3, 83:10–18; Ex. 2025 ¶ 161; Ex. 2034, 1, 5, 6). Finally,
`we found that Ogawa teaches the concentration limitation of claim 1. Id. at
`14 (citing Ex. 1002, 2:61–3:5, 7:1–31). We reiterate those findings here.
`
`b. Facts Opposing a Conclusion of Obviousness
`In our earlier Final Written Decision, we addressed Patent Owner’s
`argument that “Petitioner’s products embody the claims of the ’419 patent
`and were based on non-public information about the technology whose
`invention led to the ’419 patent, suggesting that Petitioner copied the
`technology of the ’419 patent.” Dec. 28 (citing PO Resp. 47–98). With
`respect to the issue of Petitioner’s products embodying the claims of the
`’419 patent, Petitioner argued that its products fell outside the scope of the
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`claims due to the presence in those products of certain dyes, but we found
`this argument unpersuasive on the evidence of record. Id. at 28–29 (citing
`Reply 25; Ex. 1001, 25:42–26:53; Ex. 2038, 3; Ex. 2039, 3; Ex. 2040,
`44:22–45:19, 46:5–25). In addition, we found that “the preponderance of
`the evidence suggest[ed] that Petitioner used maleic acid [in its products]
`because of its access to Patent Owner’s non-public information, rather than
`because of Petitioner’s own independent development.” Id. at 29–30 (citing
`PO Resp. 96; Reply 25–26; Ex. 1036, 173, 176–77; Ex. 1014 ¶¶ 11–12;
`Ex. 2012; Ex. 2022 ¶¶ 10–17; Ex. 2023 ¶¶ 8–20). According to the Federal
`Circuit, these findings amount to a finding that “L’Oreal USA, Inc., used
`Liqwd’s confidential information and copied Liqwd’s patented method.”
`Liqwd, 941 F.3d at 1134–35. The finding that Petitioner copied Patent
`Owner’s patented method tends to oppose a conclusion that claim 1 would
`have been obvious over Ogawa, Berkemer, and KR ’564. 6
`
`
`6 Petitioner notes that, in PGR2018-00025, “the Board found the evidence to
`‘reveal[] Petitioner had developed its own maleic-acid additive for a
`bleaching composition before receiving Patent Owner’s confidential patent
`application.’” Pet. Remand Br. 5 n.2 (quoting L’Oréal USA, Inc. v. Liqwd,
`Inc., PGR2018-00025, Paper 78 at 43 (PTAB July 30, 2019)) (alteration and
`emphasis in original). Not all of the evidence relied upon in PGR2018-
`00025 was made of record in the present proceeding. For at least this
`reason, we did not reach the same result here. Moreover, PGR2018-00025
`involved a different (albeit related) patent, different claims, and different
`prior art combinations. See generally, IPR2018-00025, Paper 80. The
`Board’s Final Written Decision in PGR2018-00025 has been appealed and is
`awaiting a decision from the Federal Circuit. IPR2018-00025, Paper 88
`(Notice of Appeal); Liqwd, Inc. v. L’Oréal USA, Inc., No. 2020-1014 (Fed.
`Cir.).
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`c. Weighing the Factual Findings
`As discussed above, there are facts that tend to support a conclusion
`of the obviousness of claim 1 and facts that tend to oppose such a
`conclusion. Thus, we must determine how to weigh the facts that point in
`opposite directions.
`We start by looking at the strength of the objective evidence of
`nonobviousness. Patent Owner argues that Petitioner’s copying is not
`merely strong, but “compelling,” evidence of nonobviousness. PO Remand
`Br. 7–8 (citing Adv. Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272,
`1285–86 (Fed. Cir. 2000); Minn. Mining & Mfg. Co. v. Johnson & Johnson
`Orthopaedics, Inc., 976 F.2d 1559, 1574–75 (Fed. Cir. 1992)). We disagree.
`Patent Owner is correct that “copying evidence merits even greater weight in
`view of [the copying party’s] failure to develop independently the claimed
`invention.” Advanced Display, 212 F.3d at 1285–86. But “failure to
`develop independently the claimed invention” in this context does not mean
`merely copying in lieu of independent development. Instead, it refers to
`failed attempts at independent development followed by copying. See Dow
`Chem. Co. v. American Cyanamid Co., 816 F.2d 617, 622 (Fed. Cir. 1987)
`(“Cyanamid tried but failed to develop the claimed invention and copied it
`instead.”); Vandenberg v. Dairy Equip. Co., 740 F.2d 1560, 1567 (Fed. Cir.
`1984) (“The copying of an invention may constitute evidence that the
`invention is not an obvious one. . . . This would be particularly true where
`the copyist had itself attempted for a substantial length of time to design a
`similar device, and had failed.”). Here, there is evidence that Petitioner had
`access to Patent Owner’s non-public information regarding the method of
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`the ’419 patent and that Petitioner began marketing and selling its own
`products practicing the claimed method at some point following receipt of
`that information, but there is no evidence of Petitioner’s failed attempts at
`independent development. Thus, we are not persuaded by Patent Owner’s
`argument that Petitioner’s copying is compelling evidence of
`nonobviousness.
`We also are not persuaded by Petitioner’s argument that evidence of
`copying alone is always “only equivocal evidence of non-obviousness.” Pet.
`Remand Br. 7–8 (quoting Ecolochem, Inc. v. S. Cal. Edison Co., 227 F.3d
`1361, 1380 (Fed. Cir. 2000)) (emphasis removed). Petitioner correctly
`quotes Ecolochem as saying clearly that “[a] showing of copying is only
`equivocal evidence of non-obviousness in the absence of more compelling
`objective indicia of other secondary considerations.” Id. In the context of
`the Federal Circuit’s other decisions regarding copying, however, we
`interpret Ecolochem as standing for the same holding the Federal Circuit
`attributed to Iron Grip Barbell on appeal here: for copying to be evidence of
`nonobviousness, “more is needed than merely showing that similarity exists
`between the patent and the competitior’s accused product.” Liqwd, 941 F.3d
`at 1137. The something more may be access to non-public information, as it
`is here, or it may be the presence in the record of additional objective indicia
`of nonobviousness, as Ecolochem itself suggests. In addition, it may be the
`motivation of the party who engaged in copying the patented product, as is
`made clear in Cable Electric, the case on which Ecolochem relies. Cable
`Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1028 (Fed. Cir. 1985)
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`(holding that a copyist’s reason for copying the patented invention is
`important in deciding whether the copying in question was evidence of
`nonobviousness).
`Given that we are not persuaded either by Patent Owner’s argument
`that Petitioner’s copying here is compelling evidence of nonobviousness or
`by Petitioner’s argument that copying can never be strong evidence of
`nonobviousness, what can we say about the copying in this case? There is
`more than mere similarity between Petitioner’s product and the ’419 patent
`claims, because Petitioner had access to Patent Owner’s non-public
`information. That said, Patent Owner has not presented persuasive evidence
`on this record establishing Petitioner’s motivation for copying the patented
`invention, and we did not find that any other objective indicia of
`nonobviousness were present. Thus, the copying is more than weak
`evidence of nonobviousness, but it does not rise to the level of strong
`evidence.
`The facts supporting a conclusion that claim 1 would have been
`obvious, on the other hand, are quite strong. Ogawa’s Example 3 would
`anticipate claim 1 if it used maleic acid as its chelator instead of tetrasodium
`ethylenediaminetetraacetate (“tetrasodium EDTA”) and ascorbic acid.
`Ex. 1002, 7:1–32. Further, Ogawa lists and claims 10 examples of chelators
`that can be used, making maleic acid interchangeable with the chelators that
`actually appear in Example 3. Id. at 2:61–3:1, 8:34–39.
`Patent Owner argues that the disclosure of possible chelators in
`Ogawa is too broad to teach or suggest replacing the chelators of Example 3
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`with maleic acid. PO Remand Br. 5–6. We are not persuaded. It is true, as
`Patent Owner argues, that the mere “disclosure of a chemical genus [does
`not necessarily] render[] obvious any species that happens to fall within it.”
`In re Jones, 958 F.2d 347, 350 (Fed. Cir. 1992). But the prior-art disclosure
`in Jones did not name the claimed species, only a “potentially infinite
`genus” that happened to include that species. Id. at 350–51. Ogawa’s
`chelator disclosure is not limited, as Patent Owner suggests, merely to the
`broad class of all compounds that “ha[ve] the ability to chelate metal
`ions . . . and [are] commonly used in cosmetic preparations.” Ex. 1002,
`2:61–64; PO Remand Br. 5. Instead, and unlike the prior art in Jones,
`Ogawa expressly names maleic acid among a short list of only ten
`interchangeable chelators. Ex. 1002, 2:64–3:1, 8:34–39. To the extent that
`Ogawa’s inclusion of the salts of its named chelators broadens the genus of
`its disclosed compounds, we note that claim 1 of the ’419 patent is
`broadened in precisely the same way. Ex. 1001, 25:42–26:5 (“wherein the
`active agent has the formula [of maleic acid] or salts thereof”). Ogawa’s
`disclosure of a list of only ten interchangeable compounds, one of which is
`the specific compound recited in claim 1 of the ’419 patent, makes it more
`similar to the disclosure in Merck than to that in Jones. Merck & Co. Inc. v.
`Biocraft Labs. Inc., 874 F.2d 804, 806–09 (Fed. Cir. 1989) (because the fact
`“[t]hat the [reference] discloses a multitude of effective combinations does
`not render any particular formulation less obvious,” express disclosure of the
`claimed combination among a list of 1200 named combinations was
`sufficient to teach the claimed combination).
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`Patent Owner also argues that the disclosure of the prior art is weak
`evidence of obviousness because, despite “[m]ore than a decade pass[ing]
`between Ogawa’s . . . publication[] and the ’419 ancestral application
`filing,” no one in the intervening time “thought to add maleic acid into a
`high-pH bleaching method to address bleach damage.” PO Remand Br. 4.
`We disagree. “The mere age of the references is not persuasive of the
`unobviousness of the combination of their teachings, absent evidence that,
`notwithstanding knowledge of the references, the art tried and failed to solve
`the problem.” In re Wright, 569 F.2d 1124, 1127 (CCPA 1977) (relying on
`a combination of references including a 100-year-old patent). Patent Owner
`does not present persuasive evidence on this record establishing failed
`attempts to solve the problem of bleach damage. Thus, the fact that eight
`years passed between Ogawa’s publication in 2006 and the earliest priority
`date to which the ’419 patent might be entitled does not weaken the evidence
`that the prior art teaches or suggests the subject matter of claim 1.
`Next, Patent Owner argues that the evidence that a person of ordinary
`skill in the art would have selected maleic acid as the chelator in Example 3
`is equivocal because Ogawa itself discourages such use. PO Remand Br. 6
`(citing Ex. 1002, 5:47–6:17; Ex. 1026, 158:12–160:10; Ex. 2046, 76:19–
`77:21). We are not persuaded. First, as discussed above, Ogawa’s short list
`of exemplary chelators is described and claimed as interchangeable.
`Ex. 1002, 2:61–3:1, 8:34–39. Second, although Patent Owner is correct that
`Ogawa’s comparative example 1 does not use the tetrasodium EDTA of
`Ogawa’s example 1 and does not work as well as example 1, that difference
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`may be just as likely due to the lower overall concentration of chelator in
`comparative example 1 as to the identity of that chelator. Id. at 5:47–6:17
`(showing elimination of tetrasodium EDTA in comparative example 1 and
`no increase in ascorbic acid or substitution of third chelator to compensate).
`It is true that Patent Owner’s declarant, Dr. Borish, testified that the failure
`of comparative example 1 would have led him to avoid using any chelator
`but tetrasodium EDTA in carrying out Ogawa’s method. Ex. 1026, 158:12–
`160:10. But the record also contains testimony that a person of ordinary
`skill in the art would have interpreted Ogawa as teaching that maleic acid
`was interchangeable with the other named chelators in its method. Ex. 1008
`¶¶ 93, 177. In addition, even if Dr. Borish’s testimony were not contradicted
`on this record, “just because better alternatives exist in the prior art does not
`mean that an inferior combination is inapt for obviousness purposes.” In re
`Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012). Accordingly, we are not
`persuaded that the evidence for choosing maleic acid to use in Ogawa’s
`method is only weak evidence of obviousness.
`Moreover, even if Ogawa alone were merely weak evidence of
`obviousness, Berkemer and KR ’564 provide their own reasons for a person
`of ordinary skill in the art to have chosen maleic acid from among the
`chelators listed in Ogawa for use in the method of Ogawa’s example 3. Dec.
`21–24; Liqwd, 941 F.3d at 1135–36 (“The Board determined that Ogawa,
`Berkemer, and KR ’564 provided a person of ordinary skill a reason to
`choose maleic acid as the ‘chelating agent’ over Ogawa’s other options in its
`bleaching treatment.”), 1139 (“[W]e agree with the . . . aspects of the
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`Board’s final written decision” other than its “disregarding its finding that
`L’Oreal copied Liqwd’s patent method.”). As for Patent Owner’s arguments
`that Berkemer is limited to a low-pH process and that a person of ordinary
`skill in the art would not have expected the benefits of Berkemer’s process
`to apply in a high-pH hair bleaching process, PO Remand Br. 6–7, we
`previously found these arguments unpersuasive, Dec. 21–22, and they
`remain unpersuasive on the record now before us. Finally, although Patent
`Owner is correct that KR ’564 does not itself teach any benefit specific to
`maleic acid rather than to mild organic acids generally, PO Remand Br. 7,
`no such benefit is necessary to support the case of obviousness over the
`combination of Ogawa, Berkemer, and KR ’564. Ogawa teaches that maleic
`acid is interchangeable with the other listed chelators, Berkemer provides a
`reason to use maleic acid over other options in repairing damage from hair
`treatments, and KR ’564 teaches that maleic acid may be mixed into hair
`treatments rather than solely applied after the fact, as Berkemer arguably
`suggests. These teachings, taken together, provide quite strong evidence of
`the obviousness of claim 1.
`Thus, the evidence in favor of obviousness is quite strong, and the
`evidence in favor of nonobviousness is not as strong. Upon weighing the
`entirety of the evidence for and against obviousness, we conclude that the
`preponderance of the evidence favors a conclusion that claim 1 would have
`been obvious over the combination of Ogawa, Berkemer, and KR ’564.
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`2. Claims 2–6 and 10
`As we noted in the earlier Final Written Decision, Petitioner argued
`that Ogawa teaches or suggests the limitations that dependent claims 2–6
`add to independent claim 1, and Patent Owner did not dispute those
`arguments. Pet. 56–63, 66–67 (citing Ex. 1002, 2:64–3:7, 4:32–39, 4:43–57,
`6:20–26, 7:1–31, 7:44–8:16, 8:28–30; Ex. 1008 ¶¶ 164–171, 174–181, 186–
`192, 195–202, 204, 211; Ex. 1012, 17); PO Resp. 98–99. We found that the
`combination of Ogawa, Berkemer, and KR ’564 teaches or suggests all the
`limitations of claims 2–6 and 10, and that finding was not disturbed on
`appeal. Dec. 15, 18; Liqwd, 941 F.3d at 1135 (“According to the Board,
`Ogawa disclosed all the limitations of the challenged claims of the ’419
`patent . . . .”), 1139 (“[W]e agree with the . . . aspects of the Board’s final
`written decision” other than its “disregarding its finding that L’Oreal copied
`Liqwd’s patent method.”). Thus, the arguments for the obviousness of
`claims 2–6 and 10 are the same as those for the obviousness of claim 1.
`Accordingly, for the reasons discussed above with respect to claim 1, we
`conclude that claims 2–6 and 10 would have been obvious over the
`combination of Ogawa, Berkemer, and KR ’564.
`
`3. Claim 7
`We found that the additional limitation of claim 7 was known to a
`person of ordinary skill in the art, and that finding was not disturbed on
`appeal. Dec. 15–16; Liqwd, 941 F.3d at 1139 (“[W]e agree with the . . .
`aspects of the Board’s final written decision” other than its “disregarding its
`finding that L’Oreal copied Liqwd’s patent method.”). Neither party
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`presents arguments with respect to claim 7 on remand that differ from the
`general arguments discussed above. Accordingly, for the reasons discussed
`above with respect to claim 1, we conclude that claim 7 would have been
`obvious over the combination of Ogawa, Berkemer, and KR ’564.
`
`4. Claim 8
`We found that Ogawa taught the additional limitation of claim 8, and
`that finding was not disturbed on appeal. Dec. 17–18; Liqwd, 941 F.3d at
`1139 (“[W]e agree with the . . . aspects of the Board’s final written decision”
`other than its “disregarding its finding that L’Oreal copied Liqwd’s patent
`method.”). Neither party presents arguments with respect to claim 8 on
`remand that differ from the general arguments discussed above.
`Accordingly, for the reasons discussed above with respect to claim 1, we
`conclude that claim 8 would have been obvious over the combination of
`Ogawa, Berkemer, and KR ’564.
`
`B. Asserted Obviousness over Kitabata, Berkemer, and KR ’564
`We next consider the obviousness of the challenged claims over the
`combination of Kitabata, Berkemer, and KR ’564 in light of the facts we
`found in our earlier Final Written Decision.
`
`1. Claim 1
`a. Facts Supporting a Conclusion of Obviousness
`In our earlier Final Written Decision, we found several facts that tend
`to support a conclusion that claim 1 would have been obvious over Kitabata,
`Berkemer, and KR ’564.
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`First, we found that “Kitabata teaches or suggests all of the limitations
`recited in claim 1 when maleic acid is used as the pH adjustor in the mixture
`of Kitabata’s primary and secondary agents.” Dec. 33–34 (citing Ex. 1005,
`code (57), ¶¶ 5, 13–16, 40, 43, 61, 71). We also found that “Kitabata itself
`provides a reason to use maleic acid in its bleaching treatment.” Id. at 34.
`In addition, we found that the teachings of “Berkemer and KR ’564 provide
`an additional reason why a person of ordinary skill in the art would have
`chosen Kitabata’s maleic acid over Kitabata’s other pH adjustors.” Id. at 34,
`38–39. Finally, we found that Kitabata teaches the concentration limitation
`of claim 1. Id. at 34 (citing Ex. 1005 ¶¶ 39–40, 61, 76, Table 1; Ex. 1008
`¶¶ 237–241). We reiterate those findings here.
`
`b. Facts Opposing a Conclusion of Obviousness
`In our earlier Final Written Decision, we addressed Patent Owner’s
`argument that “Petitioner’s products embody the claims of the ’419 patent
`and were based on non-public information about the technology whose
`invention led to the ’419 patent, suggesting that Petitioner copied the
`technology of the ’419 patent.” Dec. 28, 39–40 (citing PO Resp. 47–98).
`With respect to the issue of Petitioner’s products embodying the claims of
`the ’419 patent, Petitioner argued that its products fell outside the scope of
`the claims due to the presence in those products of certain dyes, but we
`found this argument unpersuasive on the evidence of record. Id. at 28–29,
`39–40 (citing Reply 25; Ex. 1001, 25:42–26:53; Ex. 2038, 3; Ex. 2039, 3;
`Ex. 2040, 44:22–45:19, 46:5–25). In addition, we found that “the
`preponderance of the evidence suggest[ed] that Petitioner used maleic acid
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`[in its products] because of its access to Patent Owner’s non-public
`information, rather than because of Petitioner’s own independent
`development.” Id. at 29–30, 39–40 (citing PO Resp. 96; Reply 25–26;
`Ex. 1036, 173, 176–77; Ex. 1014 ¶¶ 11–12; Ex. 2012; Ex. 2022 ¶¶ 10–17;
`Ex. 2023 ¶¶ 8–20). As the Federal Circuit has explained, these findings
`amount to a finding that “L’Oreal USA, Inc., used Liqwd’s confidential
`information and copied Liqwd’s patented method.” Liqwd, 941 F.3d at
`1134–35. The finding that Petitioner copied Patent Owner’s patented
`method tends to oppose a conclusion that claim 1 would have been obvious
`over Kitabata, Berkemer, and KR ’564.
`
`c. Weighing the Factual Findings
`As discussed above, there are facts that tend to support a conclusion
`of the obviousness of claim 1 and facts that tend to oppose such a
`conclusion. Thus, we must determine how to weigh the facts that point in
`opposite directions.
`We start by looking at the strength of the objective evidence of
`nonobviousness. Because neither party raises different arguments in the
`context of the ground of obviousness over the combination of Kitabata,
`Berkemer, and KR ’564, the analysis for this evidence is the same as it was
`in the context of the ground of obviousness over the combination of Ogawa,
`Berkemer, and KR ’564, discussed above. As we did above, we find the
`evidence opposing a conclusion of obviousness is more than weak evidence
`but does not rise to the level of strong evidence.
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`The facts supporting a conclusion that claim 1 would have been
`obvious, on the other hand, are quite strong. Kitabata teaches mixing a
`primary agent and a secondary agent and applying the mixture to hair as a
`bleaching agent. Ex. 1005, code (57), ¶¶ 5, 43, 61, 71. The primary agent
`contains a pH adjustor, and the secondary agent contains hydrogen peroxide.
`Id. ¶¶ 5, 13–16. The pH adjustor is present in the primary agent in an
`amount between 0.1 and 10 weight percent. Id. ¶ 40. This disclosure would
`anticipate claim 1 if maleic acid were chosen as the pH adjustor in the
`primary agent, and Kitabata teaches that the pH adjustor is “selected from
`the group consisting of polycarboxylic acids and their salts,” with maleic
`acid as one of 14 expressly named choices. Id. ¶¶ 13–16, 39.
`Patent Owner argues that the disclosure of possible pH adjustors in
`Kitabata is too broad to teach or suggest choosing maleic acid in particular.
`PO Remand Br. 5–6. We are not persuaded. As we note above, it is t