Liqwd, Inc. et al v. L'Oreal USA, Inc. et al

Filing 135

MEMORANDUM ORDER denying 14 MOTION for Preliminary Injunction. Signed by Judge Sue L. Robinson on 7/6/2017. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

LIQWD, INC. and OLAPLEX LLC,
Plaintiffs,
v.

L'OREAL USA, INC., L'OREAL USA
PRODUCTS, INC, L'OREAL USA S/D,
'
INC., L'OREAL, S.A., and REDKEN 5TH
AVENUE NYC, L.L.C.,
Defendants.

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) Civ. No. 17-14-SLR
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MEMORANDUM ORDER
At Wilmington this

ft».

day of July, 2017, having reviewed the papers submitted

in connection with plaintiffs' motion for a preliminary injunction (D.I. 14), the court issues
its decision as follows:
1. Introduction. On January 5, 2017, plaintiffs Liqwd, Inc. ("Liqwd") and
Olaplex, LLC ("Olaplex") (collectively "plaintiffs") filed a complaint against defendants
L'Oreal USA, Inc. ("L'Oreal"), L'Oreal USA Products, Inc, L'Oreal USA S/D, Inc., and
Redken 5th Avenue NYC L.L.C. (collectively "defendants"), alleging infringement of U.S.
Patent No. 9,498,419 ("the '419 patent"), misappropriation of trade secrets under
18 U.S.C. § 1836 and Delaware law, breach of contract, unjust enrichment, and breach
of the implied covenant of good faith and fair dealing. (D.I. 2) Plaintiffs amended their
complaint on March 20, 2017 to include L'Oreal S.A. as a defendant. (D.I. 53)
Presently before the court is plaintiffs' motion for a preliminary injunction, 1 which was

1

Defendants have moved to dismiss and have briefed the motion. (D.I. 66, 67) In their
brief on plaintiffs' motion for preliminary injunction, defendants have presented

argued on June 8, 2017. (D.I. 14) This court has jurisdiction under 28 U.S.C. §§ 1331
and 1338.
2. Background. Liqwd is the assignee of the '419 patent. (D.I. 53at1127; '419
patent, cover page) Olaplex is the "exclusive licensee of the '419 patent with full rights
of enforcement and recovery, including the right to pursue recovery of royalties and
damages for infringement of the '419 patent." (D.I. 53at1127) The '419 patent, entitled
"Keratin treatment formulations and methods," was filed on March 31, 2016 and was
issued on November 22, 2016. 2 ('419 patent, cover page) The '419 patent claims "a
method for bleaching hair" employing specific concentrations of maleic acid "or salts
thereof" in a "mixture [that] does not contain a hair coloring agent." ('419 patent, 25:4126:5 (claim 1))
3. In 2014, Olaplex successfully launched hair styling products in the newlycreated "bond builder" market category. (D.I. 53at111130, 33) Olaplex revenues quickly
grew to the tens of millions of dollars. (D.I. 60 at 4) Beginning in January 2015, various
L'Oreal representatives and Olaplex CEO Dean Christal ("Christal") discussed the
potential for L'Oreal to purchase Olaplex. (Id. at 111141-45) In March 2015, a L'Oreal
representative attempted to recruit Craig J. Hawker, PhD ("Dr. Hawker") and Eric D.
Pressly, PhD ("Dr. Pressly"), the inventors of the '419 patent. (Id. at 1140) In May 2015,
Olaplex and L'Oreal executed a non-disclosure agreement ("NOA"). (Id. at 1147) In
May and June 2015, pursuant to the NOA with L'Oreal, Christal and Dr. Pressly
disclosed Olaplex's financial information, pending but unpublished patent applications
licensed to Olaplex, and detailed technical information about Olaplex's products. (Id. at

redundant arguments related to their motion to dismiss. (D.I. 60 at 7-8) The court will
address the motion to dismiss separately.
2 The '419 patent is a continuation of application No. 14/713,885 (now U.S. Pat. No.
9,326,926) and was filed under the U.S. Patent & Trademark Office's "Track One"
expedited examination program.

2

,m 48-59) A L'Oreal representative met with Christal in September 2015 and informed
him that "L'Oreal was no longer interested in acquiring Olaplex." (Id.

at~

60)

4. Subsequently, L'Oreal USA introduced three products that compete directly
with Olaplex in the U.S. market. These products include: Matrix Bond Ultim8 Step 1
Amplifier, Redken pH-Bonder #1 Bond Protecting Additive, and L'Oreal Professionnel
Smartbond Step 1 Additive (the "accused products"). (D.I. 60 at 5) Plaintiffs contend
that defendants' use of the accused products directly infringes claims 1 and 10 of the
'419 patent. (D.I. 53

at~

109) Moreover, plaintiffs assert that defendants, through

product literature, instructions, in-person training sessions, and training videos, induce
others to infringe claims 1 and 10 of the '419 patent. (D. I. 53 at ~ 110)
5. Motion for preliminary injunction - standard of review. As explained by
the United States Court of Appeals for the Third Circuit,
[p]reliminary injunctive relief is an "extraordinary remedy, which should be
granted only in limited circumstances." ... "A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest." ... The "failure to establish any
element ... renders a preliminary injunction inappropriate." ... The
movant bears the burden of showing that these four factors weigh in favor
of granting the injunction.
Ferring Pharms., Inc. v. Watson Pharmaceuticals, Inc., 765 F.3d 205, 210 (3d Cir. 2014)

(citations omitted). "[T]he decision whether to grant or deny injunctive relief rests within
the equitable discretion of the district courts, and ... such discretion must be exercised
consistent with traditional principles of equity." eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 394 (2006).
6. Likelihood of success on the merits. Plaintiffs argue that a preliminary
injunction is appropriate, because plaintiffs are likely to succeed in their claim of
infringement of claim 1 of the '419 patent. (D.I. 15 at 8) Moreover, plaintiffs aver that

3

defendants are "unlikely to prove" invalidity. (Id.) Plaintiffs contend that defendants
directly infringe claim 1 of the '419 patent and induce their customers to infringe. (D.I.
53

at~

109-110) The parties' infringement dispute centers on the "hair coloring agent"

term found in claim 1. ('419 patent, 26:4-5) Defendants argue that plaintiffs have not
shown direct infringement or inducement. (D.I. 60 at 20, 24)
7. Direct infringement - "hair coloring agent." Claim 1 of the '419 patent
recites:
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.

('419 patent, 25:42-26:5 (emphasis added)) Claim 10 is dependent on claim 1.
Plaintiffs have proposed that the term "hair coloring agent" be construed to mean "a
colorant or pigment that is customarily used in hair care products, which changes the
color or tone of the hair it is applied to based on visual inspection."3 (D.I. 15 at 10) The
parties submitted letter briefs to address the question of whether applicant's statements
during prosecution were sufficient, as plaintiffs contend, for applicant to act as its own

3

Defendants argue that plaintiffs' construction is indefinite. (D.I. 60 at 9) Defendants
proposed "a substance that alters or changes, or is capable of altering or changing, the
color of hair." (D.I. 62 at~ 63)

4

lexicographer. 4 (D.I. 112; D.I. 123; D.I. 125) However, plaintiffs have proposed
constructions based upon the intrinsic record according to two theories: plain and
ordinary meaning, and applicant as lexicographer. (D.I. 15 at 10-11; D.I. 96 at 1) As a
result, the court addresses infringement according to each of plaintiffs' constructions. 5
8. Plain and ordinary meaning. Plaintiffs' expert, Edward T. Berish, PhD ("Dr.
Berish"), performed a limitation-by-limitation comparison between claim 1 and the
accused products. With respect to the "hair coloring agent" limitation, he opined that:
I have been told and understand that L'Oreal may claim that dyes present
in the Accused Products allegedly constitute hair coloring agents. In
particular, each contains three chemicals identified as Cl 19140/Yellow 5,
Cl 14700/Red 4, Cl 42090/Blue 1. These are common dyes for coloring
products, but I am not aware of any hair dye product which uses these
chemicals to actually impart color to hair in the low concentrations that I
believe these chemical are used in the Accused Products. Moreover, all
three of these dyes are used in various L'Oreal shampoo and conditioner
products which are neither intended to color hair, nor labeled as coloring
hair, as demonstrated below.
(D.I. 16at1J 94 (emphasis added)) Dr. Berish acknowledges that these dyes are
present in the accused products, and he appears to suggest that, in higher
concentrations, these dyes could impart color to hair. 6 Defendants' expert, Robert J. W.
Hefford, PhD ("Dr. Hefford"), explains that a person having ordinary skill in the art
"would know and recognize that the Yellow 5, Red 4, and Blue 1 dyes in the accused
products are direct action dyes and are known to be used for coloring hair, and are each

4

During patent prosecution, applicant made numerous additional statements about prior
art that may factor into a claim construction.
5 For the purposes of this proceeding, the court does not independently construe the
"hair coloring agent" term.
6 Plaintiffs argue that "the accused products would not cause a visually perceptible
change in hair color unless the amount of colorant in the product formulations was
increased at least 5,000 fold." (D.I. 96 at 5)

5

capable of changing the color [of] hair." 7 (D.I. 62 at~ 106, ~~ 107-114) The parties
acknowledge that the dyes can be used to color hair and are present in the accused
products. Factoring in plaintiffs' construction and the plain and ordinary meaning, the
claim limitation, "wherein the mixture does not contain a hair coloring agent," can be
read as "wherein the mixture does not contain a colorant or pigment that is customarily
used in hair care products, which changes the color or tone of the hair it is applied to
based on visual inspection." Under this construction, the accused products contain a
"hair coloring agent" and do not likely infringe.
9. Applicant as lexicographer. In response, plaintiffs argue that applicant
acted at its own lexicographer and "hair coloring agent" is defined by its function,
namely that it must result in a visually perceptible change to "the color or tone of the
hair." 8 For example, plaintiffs assert that "a 'hair coloring agent' is not capable of
visually 'coloring' the hair, ... if its concentration is so diluted that it does not actually
color the hair." 9 (D.I. 96 at 3-4) Plaintiffs contend that applicant's "lexicography is
consistent with the patent specification, which .... teaches that the invention is
assessed through visual inspection of the treated hair." (D.I. 96 at 1-2 (citing examples
2 and 7 in the '419 patent)) With reference to example 2, the specification states "[t]he
hair sample treated with the active agent formulation displayed a color closer in intensity

7

Defendants contend that the bleach in the accused products is a "hair coloring agent;"
therefore, the accused products do not infringe. (D.I. 60 at 20) This argument is not
based upon plaintiffs' proposed construction, and the court declines to consider it.
8 Defendants argue that plaintiffs' "contention that 'hair coloring agents' should not be
defined in terms of underlying properties is inconsistent with a tenet of patent law-'a
compound and all of its properties are inseparable."' (D.I. 103 at 2, citing In re Papesch,
315 F.2d 381, 391 (C.C.P.A. 1963)) Papesch is inapposite, because the specification
does not identify a "hair coloring agent" as a specific chemical compound; therefore,
there is no single set of properties to associate with the "hair coloring agent."
9 This appears to be an attempt to parse the meaning of "capable" to exclude
infringement under defendants' construction.

6

to the hair sample prior to the first washing, compared to the hair treated with hydrogen
peroxide." ('419 patent, 22:15-18) Similarly, with reference to example 7, the
specification recites that "[u]pon visual inspection[], the second hair sample treated with
the active agent formulation showed little or no signs of breakage." (Id., 25:4-6)
Examples 2 and 7 relate to permanent wave treatments and not methods of bleaching
or coloring. With respect to color, example 2 addresses "color retention" for hair in
general but does not discuss hair treated with a "hair coloring agent." The cited
passages in the specification do not limit "hair coloring agent" to results that may be
assessed through visual inspection after performance of a method. Therefore,
applicant's lexicography is not consistent with the specification.
10. Moreover, applicant's lexicography directly contradicts other "agent" terms in
the specification. For example, the specification describes an "active agent" in terms of
specific formulations ('419 patent, 7:42-11: 18) and acceptable concentration ranges (id.,
7:26-34; 15:29-38; 15:40-51; 15:62-16:4; 16:21-25; 16:30-36). Claim 1 recites "wherein
the active agent in the mixture is at a concentration ranging from about 0.1 % by weight
to about 50% by weight." (Id., 26:1-3) The specification also identifies a "bleaching
agent" and states that "[t]he bleaching formulation typically contains a bleaching agent
to lighten the hair and produce free thiol groups." (Id., 16:54-55) The "bleaching agent"
is identified as "bleach powder" (id., 16:57), "powder bleach" (id., 22:39; 22:52), and
"powder lightener" (id., 23: 15; 23:49). In claim 1, the method recites "mixing a
formulation comprising an active agent with a bleaching formulation." (Id., 25:43-44)
The specification explains that in "hair color treatments ... a bleaching formulation [is
used] to bleach the hair's natural pigment and/or other artificial pigments present in the
hair." (Id., 16:47-49) While the intrinsic record identifies the purposes for using these
substances, neither the specification nor the claims define "bleaching agent" or

7

"bleaching formulation" in terms of results that may be assessed through visual
inspection after performance of a process.
11. Defendants argue that plaintiffs' visual inspection "construction fails to inform
'those skilled in the art about the scope of [claim 1] with reasonable certainty' and
results in a claim that is indefinite." 10 (D.I. 123 at 2, citing Nautilus, Inc. v. Biosig
Instruments, Inc., 134 S.Ct. 2120, 2124 (2014)) Plaintiffs contend that "the invention is

assessed through visual inspection of the treated hair." (D. I. 96 at 2 (emphasis added)
(citing D.I. 98 at ~148)) As discussed above, nothing in the intrinsic record suggests
that "hair coloring agent" is "the invention" or that applicant intended for any substance
to be defined in functional terms. Claim 1 specifically excludes a "hair coloring agent"
from the claimed method, so the "hair coloring agent" is explicitly not "the invention."
Moreover, it is impossible to define a hair coloring agent in terms of its performance in a
method that excludes its use. Clearly, some other method may be necessary, but
applicant did not identify a method, standard, or any other objective measure for
identifying when a colorant or dye is a "hair coloring agent" and when it is not.
12. The patent statute states, in relevant part, that "[t]he specification shall
conclude with one or more claims particularly pointing out and distinctly claiming the
subject matter which the inventor or a joint inventor regards as the invention." 35
U.S.C. § 112(b) As asserted, applicant's lexicography requires a person of ordinary skill
in the art to guess about the meaning of the "hair coloring agent" term, which leaves that
person uncertain about the scope of claim 1. Were the court inclined to accept plaintiffs'
contention that applicant acted as its own lexicographer, the court would most likely
conclude that claim 1 is indefinite.

10

The court does not address the alternative chemistries for fixing colorants to hair
identified by both Ors. Barish and Hefford. (D.I. 16 at~ 39; D.I. 62 at~~ 39-42)

8

13. Inducement. Plaintiffs contend, in a footnote, that defendants "directly
infringe[] the '419 patent through [their] use and testing of the accused products, and
with knowledge of the patent, induce[] hair care professionals to infringe the '419 patent
through [their] explicit instructions for use of the accused products as described herein."
(D.I. 15 at 9 n.7) Defendants argue that plaintiffs fail to show that defendants "acted
with 'knowledge that the induced acts constitute patent infringement,' as required under

§ 271(b)." (D.I. 60 at 24, citing Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754,
766 (2011)) Plaintiffs respond that, according to AstraZeneca LP v. Apotex, Inc., 633
F.3d 1042, 1056-61 (Fed. Cir. 2010), defendants' knowledge of the patent, plaintiffs'
communications about infringement, and defendants' efforts to educate and train hair
professionals about how to use the accused products "is sufficient to show both
knowledge and intent to induce infringement." (D.I. 96 at 5) Plaintiffs aver that "there is
ample evidence that [defendants] w[ere] on actual notice of[] infringement." (Id.) In the
case at bar, plaintiffs have shown that defendants knew about the '419 patent and that
plaintiffs intended to sue them for infringement. (D.I. 96, ex. D at 56:5-24; see also id.,
exs. F, G, H) However, plaintiffs have not demonstrated that defendants knew that their
customers' acts constitute infringement.
14. Analysis - infringement. Plaintiffs bear the burden of demonstrating a
likelihood of success on the merits. In the case at bar, plaintiffs have proposed a
construction for the only limitation of claim 1 in dispute. Under the plain and ordinary
meaning, plaintiffs have not demonstrated likely infringement by the accused products.
Under applicant's lexicon, the specification does not support the meaning plaintiffs now
assert. Moreover, claim 1 may be indefinite under 35 U.S.C. § 112(b). Based upon
either approach to interpreting plaintiffs' proposed claim construction, plaintiffs have
failed to demonstrate a likelihood that they will prove direct infringement of claim 1. As
for inducement, plaintiffs have not satisfied the knowledge requirement. For these

9

reasons, plaintiffs have not established a likelihood of success with respect to either
direct or induced infringement.
15. Invalidity. Defendants assert that claim 1 is invalid as obvious over Kim in
view of Ogawa and anticipated by Ogawa. 11 (D.I. 60 at 13-20) Plaintiffs argue that
"there is a strong likelihood of prevailing on validity," because the '419 patent is
presumed valid and because it issued after overcoming numerous prior art references,
including "four separate third-party prior art submissions," which plaintiffs contend is a
"competitor's likely best prior art." (D. I. 15 at 12)
16. Invalidity - standard. Because a patent is presumed valid under 35 U.S.C.

§ 282, a challenger must prove invalidity by clear and convincing evidence. Microsoft
Corp. v. i4i Ltd. P'ship, 131 S. Ct. 2238, 2245 (2011 ); Glaxo Group Ltd. v. Apotex, Inc.,
376 F.3d 1339, 1348 (Fed. Cir. 2004). Further, "[w]hen the prior art was before the
examiner during prosecution of the application, there is a particularly heavy burden in
establishing invalidity." lmpax Labs., Inc. v. Aventis Pharms. Inc., 468 F.3d 1366, 1378
(Fed. Cir. 2006) (citing Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464,
1467 (Fed. Cir. 1990)). If a reference was not before the examiner during prosecution
but is cumulative of others that were before the examiner, the heavy burden of proof still
applies. Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1368
(Fed. Cir. 2004).
17. Anticipation. Defendants' arguments with respect to anticipation are
duplicative of the third party's contention presented to the examiner in the third-party
submission. U.S. Pat. Appl. No. 15/087,415, Concise Description of Relevance at 3-4,
Aug. 29. 2016 (submitting U.S. Pat. No. 7,044,986 to Ogawa ("Ogawa") under 37
C.F.R. § 1.290). Defendants argue that Ogawa "was only reviewed in the context of an

11

Plaintiffs argue obviousness before anticipation.
10

obviousness analysis with another reference" and, therefore, the court should consider
their anticipation analysis. (D. I. 60 at 18) The prosecution history shows otherwise namely that the examiner considered Ogawa in terms of anticipation, "US Patent No.
7044986 while teaching maleic acid, also teaches it in a list which would be overcome
[by] the [Christal] declaration." U.S. Pat. Appl. No. 15/087,415, Applicant-Initiated

Interview Summary at 3, Sep. 7, 2016. Defendants aver that Ogawa anticipates under
a definition in which "hair dye compositions encompass hair bleach compositions." (D.I.
103 at 3) Claim 1 includes "a bleaching formulation" and excludes "hair coloring
agents." Defendants have not explained how Ogawa applies in light of either of
plaintiffs' claim constructions. Therefore, defendants have not adequately shown a
likelihood that they will demonstrate that claim 1 is anticipated by Ogawa.
18. Obviousness. As for obviousness, Korean Pat. Appl. No. 2003-0003970 to
Kim, et al. ("Kim") was considered extensively by the examiner during prosecution.
Defendants argue that "[i]n allowing the '419 patent, the examiner relied extensively on
Christal's [rule 132] declaration. Applied to Kim, Christal's explanation of hair dyeing
was wrong because Kim only teaches oxidative hair dyeing where no reducing agent is
applied." (D.I. 60 at 17) At this stage in the proceedings, the court is not inclined to
second guess the assessment of the examiner, who had the Ogawa and Kim
references before her, and who "we assume has some expertise in interpreting the
references and some familiarity with the level of skill in the art." Bausch & Lomb, Inc. v.

Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 447 (Fed. Cir. 1986). Defendants have
not shown that they could carry their burden to prove obviousness by clear and
convincing evidence. For these reasons, it is unlikely that defendants would be able to
show that claim 1 of the '419 patent is invalid as anticipated or obvious.
19. lnventorship. Similarly, the court is not persuaded that defendants will
succeed in their claim of improper inventorship. Defendants' evidence is a Facebook

11

post stating that Joe Santy ("Santy") is "THE original tester for Olaplex 12 and THE man
behind the discovery of adding it to color and lightener." (D.I. 61, ex. A at 44)
Defendants did not depose Santy, nor did they find any other evidence corroborating his
alleged inventorship. In addition, "[t]he error of omitting inventors or naming persons
who are not inventors shall not invalidate the patent in which such error occurred if it
can be corrected as provided in this section." 35 U.S.C. § 256(b). Defendants have not
demonstrated that plaintiffs could not correct inventorship if a trier of fact were to
determine that Santy is an inventor of claim 1 of the '419 patent. For these reasons,
defendants have not shown that the '419 patent is invalid for improper inventorship.
20. Likelihood of success on the merits - conclusion. While defendants
have failed to demonstrate that they are likely to show invalidity by anticipation,
obviousness, or improper inventorship, plaintiffs have not shown that they are likely to
prevail on their patent infringement claims. For these reasons, the court concludes that
plaintiffs have failed to show that they are likely to succeed on the merits.
21. Irreparable harm. Even if a movant demonstrates a likelihood of success
on the merits, there is no presumption of irreparable harm. See, e.g., eBay, 547 U.S. at
393. To establish irreparable harm, the movant must "clearly establish[] that monetary
damages could not suffice." Abbott Labs. v. Andrx Pharm., Inc., 452 F.3d 1331, 1348
(Fed. Cir. 2006) Moreover, Federal Circuit precedent requires a showing of some
causal nexus between the alleged infringement and the alleged harm. See Apple, Inc.
v. Samsung Elec. Co., Ltd., 735 F.3d 1252, 1359-60 (Fed.Cir.2013) ("Sales lost to an
infringing product cannot irreparably harm a patentee if consumers buy that product for
reasons other than the patented features.").

12

Plaintiffs contend that the "parties agree" that Olaplex "does not use the maleic acid
formulation claimed in the '419 Patent." (D.I. 96 at 9)
12

22. Based upon the record, the Olaplex product was a marketplace innovation
when it appeared on the market in 2014. (See, e.g., D.I. 17, ex. D at 1-4) Since then,
numerous competitors have appeared. (Id.; see also D.I. 63, ex. E-1 at 3-4) There is
no dispute that Olaplex sells its products as a family and is effectively a single-product
company. (D.I. 17at115) Olaplex created what is now a growing market category.
(See, e.g., D.I. 17, ex. D at 1-4) Plaintiffs contend that the market for Olaplex products
is the "bond builder product category." (D.I. 15 at 19; see also D.I. 17at115)
Defendants expand the category to be "the bond builder/additive market," which
appears to also encompass conditioners. (D.I. 63at1123) While part "No. 3" of the
Olaplex product is a conditioning product for home use, and defendants identify
numerous products that could fit into this broader category, the scope of claim 1 and the
relevant accused products are not conditioners and are, instead, focused treatments
applied alongside hair lightening products, often in a salon setting. 13 In light of the
expert declarations, the court concludes that defendants are Olaplex's direct competitor
in what is a two-player national market. (D.I. 17at111111-17) Given that defendants
have been Olaplex's primary distribution channel (D.I. 18at115), the record shows that
Olaplex will continue to face price pressures and declining revenues based upon
competition by the accused products. (See, e.g., D.I. 17at118) The price pressure is
significant, because "hair stylists, salons and clients are typically very loyal to particular
brands and often price conscious." (D.I. 18at1113) As the "bond builder" market
category is new and growing, it is likely that plaintiffs will be harmed by direct
competition in their primary market. Moreover, this direct competition will also effect

13

Given the volume of data presented, the court credits the testimony of plaintiffs'
expert, Nisha Mody, PhD ("Dr. Mody"), over defendants' expert W. Todd Schoettlekotte
("Schoettlekotte"), as to the market categories.
13

plaintiffs' opportunities for long-term success in the bond-builder market. (D.I. 18 at

im 6, 12-14; D.I. 17 at il 25)

Therefore, irreparable harm weighs in favor of plaintiffs.

23. Balance of the equities. In assessing the balance of the equities, the court
"must balance the harm that will occur to the moving party from the denial of the
preliminary injunction with the harm that the non-moving party will incur if the injunction
is granted." Hybritech Inc. v. Abbott Labs., 849 F.2d 1446, 1457 (Fed. Cir. 1988).
Olaplex is a one-product company focused on a specific market category from which it
derives all of its revenues. (D.I. 15 at 19; D.I. 18 at il 15) Defendants are elements of a
multinational corporate entity, and the accused products account for a small percentage
of revenues. (D. I. 96 at 15) Plaintiffs argue that defendants "avoided research and
development costs by misappropriating and copying [plaintiff]'s technology" and,
therefore, their "investment is limited." (D.I. 15 at 19) Defendants contend that because
the accused products do not infringe, plaintiffs "would not be harmed if a preliminary
injunction does not issue." (D.I. 60 at 29-30) In the case at bar, plaintiffs will be harmed
more if the preliminary injunction is denied than defendants would be harmed if the
preliminary injunction is granted. Therefore, the balance of the equities weigh in favor
of plaintiffs.
24. Public interest. ''Typically, in a patent infringement case, although there
exists a public interest in protecting rights secured by valid patents, the focus of the
district court's public interest analysis should be whether there exists some critical
public interest that would be injured by the grant of preliminary relief." Hybritech, 849
F.2d at 1458. While the public interest favors the protection of patent rights, the public
interest is not served by protecting valid patents as against noninfringing uses. In the
case at bar, plaintiffs have not demonstrated a likelihood of success on the merits with
respect to induced patent infringement, therefore, the public interest weighs against an
injunction.

14

25. Analysis. Of the four factors, irreparable harm and the balance of the
equities weigh in favor of plaintiffs. The other factors, likelihood of success on the
merits and the public interest, weigh in favor of defendants. Given that plaintiffs have
not demonstrated a likelihood of success on the merits, a preliminary injunction is
inappropriate.
THEREFORE, IT IS ORDERED that plaintiffs' motion for a preliminary injunction
(D.I. 14) is denied.

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