This morning, the Federal Circuit released a nonprecedential opinion in a patent infringement case and five summary affirmances under Federal Circuit Rule 36. Here is the introduction to the opinion and a list of the summary affirmances.

Olaplex, Inc. v. L’Oreal USA, Inc. (Nonprecedential)

This appeal is from a judgment in favor of plaintiffs Liqwd, Inc. and Olaplex LLC against L’Oréal USA, Inc., L’Oréal USA Products, Inc., L’Oréal USA S/D, Inc., and Redken 5th Avenue NYC, LLC (collectively, L’Oréal). The causes of action at issue are for (1) infringement of claims 1 and 10 of U.S. Patent No. 9,498,419 and claims 1, 4, 11– 16, 19, 20, and 30 of U.S. Patent No. 9,668,954, and (2) misappropriation of several trade secrets and breach of a nondisclosure agreement. A determination of patent infringement was made by the district court on summary judgment, and a jury then found for plaintiffs on patent-validity issues and on the two non-patent causes of action and awarded damages. L’Oréal appeals on various grounds from the liability and damages determinations. Plaintiffs (Olaplex, a term that also includes Olaplex, Inc., substituted by this opinion) cross-appeal regarding the amount of damages.

With respect to the patent-infringement component of the case, prior decisions of this court and of the Patent Trial and Appeal Board leave little in dispute here. Our court has addressed aspects of the patent dispute between these parties on multiple occasions. See Olaplex, Inc. v. L’Oréal USA, Inc., Nos. 2019-2280 & 2019-2292, 2021 WL 831031 (Fed. Cir. Mar. 4, 2021) (Injunction Appeal) (holding that summary judgment of infringement in this case was error and vacating permanent injunction); L’Oréal USA, Inc. v. Olaplex, Inc., Nos. 2019-2410 & 2020-1014, 2021 WL 280493 (Fed. Cir. Jan. 28, 2021) (’954 Appeal) (affirming Board’s rejection of patentability challenge to claims 14–16 of the ’954 patent and Board’s determination of unpatentability of all other claims of the ’954 patent asserted in this case); Liqwd, Inc. v. L’Oréal USA, Inc., 720 F. App’x 623 (Fed. Cir. 2018) (appeal of preliminary injunction); Liqwd, Inc. v. L’Oréal USA, Inc., 941 F.3d 1133 (Fed. Cir. 2019) (’419 Appeal) (appeal involving Board review of the ’419 patent, affirming in part and remanding for reconsideration of unpatentability of the relevant claims of the ’419 patent); Order at 2, Liqwd, Inc. v. L’Oréal USA, Inc., No. 19-2280, ECF No. 15 (Fed. Cir. Aug. 21, 2019) (partial stay of now-vacated permanent injunction). Moreover, on remand from the ’419 Appeal, the Board held the relevant claims of the ’419 patent unpatentable, L’Oréal USA, Inc. v. Liqwd, Inc., No. PGR2017-00012, Paper 119 (P.T.A.B. Dec. 9, 2020), and Olaplex eventually dropped its appeal from that ruling, see Order, Olaplex, Inc. v. L’Oréal USA, Inc., No. 2021- 1512, ECF No. 11 (Fed. Cir. Feb. 8, 2021). The unpatentability rulings reduce the surviving patent claims asserted here to the ’954 patent’s claims 14–16. In addition, the Injunction Appeal ruling reversed the district court’s grant of summary judgment of infringement in this case, holding that there were triable issues of fact. Those rulings substantially narrow what remains disputed about the patent component of this case.

We reverse in part, affirm in part, vacate in part, dismiss in part, and remand. In particular, we reverse the judgment of liability for trade-secret misappropriation and breach of contract, and we vacate the infringement judgment and remand for a trial on patent infringement and damages limited to claims 14–16 of the ’954 patent. We dismiss plaintiffs’ conditional cross-appeal as moot given our rejection of non-patent liability.

Rule 36 Judgments