N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ LIQWD, INC., OLAPLEX LLC, Plaintiffs

- Appellants

v.

L’ OR É AL USA, INC., L ’ OR É AL USA PRODUCTS, INC., L ’ OR É AL USA S/D, INC., R EDKEN 5TH AVENUE NYC, L.L.C., L’ OR É AL S.A., Defendants

- Appellees

______________________
2017

- 2295

______________________ Appeal from the United States District Court for the District of Delaw are in No. 1:17

- cv

- 00014

- SLR, Judge Sue L. Robinson.

______________________ Decided: January 16, 2018

______________________ S ANFORD I AN W EISBURST , Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, argued for plaintiffs

appellants. Also represented by M ATT HEW K EMP B LACKBURN , M ICHELLE A NN C LARK , San Francisco, CA; J OSEPH M. P AUNOVICH , Los Angeles, CA

.
N AVEEN M ODI , Paul Hastings LLP, Washington, DC, argued for defendants

- appellees. Also represented byLIQWD , INC

. v. L ’ OR É AL USA , INC

. 2

S TEPHEN B LAKE K INNAIRD , J OSEP H P ALYS , D ANIEL Z EILBERGER

.

______________________ Before D YK , R EYNA , and T ARANTO , Circuit Judges.
T ARANTO , Circuit Judge. U.S. Patent No. 9,498,419 describes and claims a method of bleaching hair by applying to the hair a mi xture created by combining (a) a bleaching formulation with (b) a second formulation containing a n active agent that reduces or repairs damage to the keratin proteins of the hair

— damage that can result from bleaching , per ming , or other hair -treat ing processes

. The patent lists various compounds that can serve as the active agen t , including maleic acid

. The claims of the ’419 patent are limited to maleic acid (or its salts) as the active ingredient and further require that “the mixture does not contain a hair coloring agen t.” ’4 1 9 Patent, col. 26, lines 4

– 5. This case was filed by Liqwd, Inc., a s the assignee, and Olaplex LLC as an exclusive licensee, of the ’419 patent. We refer to the two plaintiffs collectively as “Olaplex.” According to Olaplex, in 2014 it introduced into the market “an entirely new hair care product cat egory” —“bon d builder product [s] .” Appellants’ Br. 7. Olaplex’s product uses bis

- aminopropyl diglycol dimaleate (“dimaleate”) as the active agent

. Id. Olaplex has a number of patents on hair treatments, and at least two

— U.S. Patent No. 9,095,518 (issued Aug. 4, 2015) and U.S. Patent No. 9,713,583 (issued July 25, 2017)

— include among certain of their claim s references to the chemical structure for dimaleate shown in Olaplex’s complaint. J.A. 1938 . B ut it is undisputed here that dimaleate does not come within the ’419 patent claims.
L’ Or é al USA, Inc., sells products that compete directly with Olaplex in the bond

- builder hair

- care market

. Olaplex brought the present suit against L’Or é al inLIQWD , INC

. v. L ’ OR É AL USA , INC

. 3

January 2017. Olaplex alleg ed that L’Oréal direct ly infringed and induced infringement of the ’419 patent by its use and by its sale with instructions for use (including literature, in

- pe rson training sessions, and training videos) of three L’Or é al produc ts

— Matrix Bond Ult im8 Step 1 Amplifier, Redken pH

– Bonder #1 Bond Protecting Additive, and L’ Or é al Professionnel Smartbond Step 1 Additive

. Liqwd, Inc. v. L’ Or é al USA, Inc. , No. 1 7- cv

- 14

- SLR, 2017 WL 2881351, at *2 (D. Del. July 6, 2017) ( District Court Op inion ). Olaplex allege d, and L’Oréal does not dispute for purposes of this appeal, that t he accused L’Oréal products include maleic acid. Olaplex moved for a preliminary injunction, and in July 2017, the district court denied the motion . The court’s dispositive basis for denying the motion was its construction of the claim requirement that the mixture not contain a “ hair coloring agent .” Because the adopted construction exclude d L’Or é al’s products
, the court co nclud ed, Olaplex had failed to show a li kelihood of success on the merits of its infringement claims and therefore a preliminary injunction was inappropriate

. Id . at *7. Olaplex timely appealed . We have jurisdiction under 28 U.S.C. § 1292(a)(1) and (c)(1). We now conclude that the district court erred i n its claim construction
, and we therefore vacate the denial of the preliminary injunction and remand for further proceedings

. I This court reviews the grant or denial of a prelim inary injunction for an abuse of discretion. See Abbott Labs. v. Sandoz, Inc. , 544 F.3d 1341, 1345 (Fed. Cir. 2008). “An abuse of discretion may be established by showing that the court made a clear error of judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly errone ous factual fin dings.” Novo Nordisk of N

. Am., Inc. v. Genentech, Inc. , 77 F.3d 1364, 1367 (Fed. Cir. 1996). To obtain a preliminaryLIQWD , INC

. v. L ’ OR É AL USA , INC

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injunction in the district court, the movant must show that (a) it is likely to succeed on the merits, (b) it would suffe r irreparable harm in the absence of the preliminary injunction, (c) the balance of equities favor s the movant, and (d) the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008); s ee, e.g., Titan Tire Corp. v. Case New Holland, Inc. , 566 F.3d 1372, 1375

– 76 (Fed. Cir. 2009). If that “court’s decision to grant or deny a preliminary injunction hinges on que stions of law, this court’s review is de novo.” Wind Tower Trade Coal. v. United States , 741 F.3d 89, 95 (Fed. Cir. 2014) (internal quotation marks omitted).
A
The principal dispute concerns the proper constru ction of the term “hair coloring agent.” C laim 1 of the ’419 patent, the only independent claim, reads as follows:
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% b y weight to about 50% by weight; and
wherein the mixture does not contain a hair coloring agent.LIQWD , INC

. v. L ’ OR É AL USA , INC

. 5

’419 p atent, col. 25 , line 42 through col. 26 , line 5. In the district court, Olaplex argued that “hair colo ring age nt” should 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.” District Court Opinion , 2017 WL 2881351, *2. Olaplex based th at construction in part on its express statement to that effect in the prosecution history , which Olaplex argued excluded formulations in which the “concentration [of dye, etc. ,] is so diluted that it does not actually color the hair.” Id . at *3.
The district court ’s reject ion of that construction w as its main basis for finding no likelihood of success on the merits

. The court re ason ed that such a construction was inconsistent with the ’419 patent’s specification because no other “agents” in the patent were defined in terms of their results, as determined by a visual inspection after performance of the method

. Id

. at *3

– 4. Rather, t he court concluded that “hair coloring agent” is properly construed to encompass a composition that is sometimes used at high concentrations to color hair

— even if in a particular instance it is present in such low concentr ations that it does not color hair. Id

. at *3. That constru ction likely excluded the accused L’Or é al products, th e court concluded, because they contain dyes that are used in other products (in the hair

- coloring industry) in high concentrations to color hair, even though they are present in the accused products at such low concentrations that they do not color hair ( they are used just to color the product itself). Id. at * 3, 6.
We review the district court’s claim construction here de novo, as it relie s only on intrinsic evidence. Teva Pharm. USA, Inc. v. Sandoz, Inc. , 135 S. Ct. 831, 840

– 42 (2015). We reject the district court’s construction. The claims readily permit
, and the prosecution history clearly requires
, a construction of (the claim

- forbidden) “hairLIQWD , INC

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coloring agent” as referring to a customary hair

- coloring composition that is present in th e mixture in an amount that, when the mixture is applied to hair, results in hair coloring, judged in the usual way

— by visual inspection. The claim language, “hair coloring agent,” lends itself to this understanding. In one ordinary meaning, for a substan ce to be an “agent
, ” that substance

— what it is, how much of it is present

— must cause a specific result, not merely be capable of doing so if greatly increased in quantity . Here, the specific result is specified: “hair

coloring.” Context is central in cla im construction, see , e.g. , Atlas IP, LLC v. Medtronic, Inc. , 809 F.3d 599, 608 (Fed. Cir. 2015); Phillips v. AWH Corp. , 415 F.3d 1303, 1321 (Fed. Cir. 2005) (en banc), and here t he method claim s’ focus on producing results suggests a focus on whether “hair coloring” results from the mixture actually applied to hair. Cf. Cox Commc’ns, Inc. v. Sprint Commc’n Co. LP , 838 F.3d 1224, 1232 (Fed. Cir. 2016) (“ All of the asserted claims are method claims, so it makes sense to define the inventive method as a series of fun ctions. ”). It is beyond dispute that n ot only the chemical identity of molecules in the mixture, but the quantity of such molecules, matters to whether the mixture contains a constituent that in fact produces the result of hair coloring . Acc ordingly, it is one natural interpretation of the claim language, in context, to focus on what is actua lly present in the mixture , considering both chemical identity and quantity. I n short, it is natural to say that a particular mixture “does not contain a hair

- coloring agent , ” despite the presence of certain identified mol ecules that if greatly increased in number could change hair color, if there are not enough of those molecules to actually change hair color

. We need not go further, however, and draw a firm conclusion about the words of the claim standing alone. This is a case in which t he prosecution history speaksLIQWD , INC

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clearly. The prosecution history confirms th e above interpretation and adds precision. Olaplex added the phrase at issue by amending cl aim 1 of the ’419 patent during prosecution. As an initial matter, Olaplex had added the exclusion of a “coloring agent” to claim 1 as a preliminary amendment after the parent application of the ’419 patent was rejec ted in light of prior art that used maleic acid itself in hair

dyeing products. At that point, the claim stated that it did not contain a “coloring agent.” Then Olaplex further amended the claim to contain the current language. Olaplex explained: Claim 1 was further amended to specify the mi xture does not contain a hair coloring agent. The term “hair coloring agent” refers to 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.
J. A . 23 25 (emphasis added)

. Olaplex immediately added:

“ This is in contrast to common agents that may be used to whiten or color a hair care product , but do not change the color or tone of hair when the hair care formulation is applied to hair based on visual in spection. ” Id. (emphasis added).
This amendment supplies a definition : it says what “[t] he term ‘hair coloring agent’ refers to.” Id

. That definition focuses on results: it requires that the colorant be one that “change s the color or tone of the hair it is applied to ,” not merely that it could do so (if greatly increased in concentration). It identifies how the change is to be determined: by “visual inspection.” And it clearly distinguishes a colorant used to change the color of only the “hair care product” from one used to change the color of the hair to which the product is applied

. We find Olaplex’s explanation in introducing the claim language to be clear and decisive. See
, e.g. , Sunovion Pharm s. , Inc.LIQWD , INC

. v. L ’ OR É AL USA , INC

. 8

v. Teva Phar ms

. USA, Inc. , 731 F.3d 1271, 1276

– 77 (Fed. Cir. 2013).
A mendments and statements made during prosec ution , which come after the filing of the application, may of course modify what claim

- construction lessons might be drawn from the earlier

- filed specificat ion in the absence of such prosecution history

. But here we see no inconsiste ncy regardless. T he specification identifies “ hair coloring agents ” separately from the more inclu sive term “dyes.” See , e.g., ’419 patent, col. 11 , lines 20

– 33

. Th at distinction fits the understanding that the former must actually color hair, while the latter may or may not. In addition, al though the specification describes some agents , like “active agent [s] ,” in terms of specific formulations and concentr ations ( s ee, e.g. , id. , col. 7, line 26 through col. 11, line 18 ), the specification sometimes describes others , like “ bleac hing agent [s] ,” in terms of their function ( see, e.g. , id. , col. 16, lines 54

– 55 (“bleaching formulation typically contains a bleaching agent to lighten the hair”) ) without specifica lly identifying concentrations

. Thus, nothing in the spec ification contradicts the understanding of the claim phrase

“ hair coloring agent ” as referring to actually color ing hair at whatever concentration is used in the product

. In short, t he district court relied on an incorrect claim construction

. The record indicates that the district court, relying on a flawed claim construction, clearly erred in finding no likelihood of success on infringement on that basis. Accordingly, the denial of a preliminary injunction must be vacated at least as to direct infringement

. B The denial of the preliminary injunction is vacated as to indirect infringement as well. In rejecting Olaplex’s allegation that L’Or é al indirect ly in fringed by inducing direct infringement by its customers, specifically salon technicians, the district court stated one reason in add ition to the claim

- construction rationale for rejecting theLIQWD , INC

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direct

- infringement allegation . It concluded that Olaplex had “not satisfied the knowledge requirement” for induced infringement because Olaplex failed to “demonstrate[] that [L’Or é al] knew that [its] customers’ acts [in following the products’ instructions for use] constitute infring ement.” District Court Opin ion , 2017 WL 2881351, at *4

– 5 (emphasis added). Th at conclusion is faulty. As evidenced by the district court’s use of the past tense “knew,” the court considered only whether Olaplex could prove past knowing inducement. But patent i nfringement, including active inducement of infringement, is often “an ongoing offense that can continue after litig ation has commenced.” In re Seagate Tech., LLC , 497 F.3d 1360, 1374 (Fed. Cir. 2007) (en banc), abrogated on other grounds by Halo Elecs., Inc. v. Pulse Elecs ., Inc. , 136 S. Ct. 1923 (2016)

. And the point of a preliminary injunction is to provide prospective relief by stopping the ongoing conduct , whose wrongfulness depends on the facts at the time it would occur unless enjoined

. See LaserDynamics, Inc. v. Qu anta Comput

. , Inc. , 694 F.3d 51, 60 (Fed. Cir. 2012) (date of filing of complaint was “the date that [defendant] first became aware of the [patent at issue ] and was therefore first potentially liable for active i nducement of infringement”); see also Seagat e , 497 F.3d at 1374 (even where claims of willful infringement focus on
pre

- filing conduct, if that conduct is ongoing, “a patentee can move for a preliminary injunction, which generally provides an adequate remedy for combating post

- filing willful in fring ement”). Accordingly, t o obtain a preliminary injunction, Olaplex need not demonstrate that it is reasonably likely to succeed in proving that L’Or é al knew, before this suit began , that its instructions for use would induce i nfringement . R ather, Olaplex m ust demonstrate, inter alia , that it is reasonably likely to succeed in proving that the instructions for use induce infringement and that L’Or é al knows, at the time a preliminary injunction is toLIQWD , INC

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take effect, that the instructions for use will induce i nfr ingement. See Sanofi v. Watson Labs., Inc. , 875 F.3d 636, 643 (Fed. Cir. 2017) ( discussing the knowledge requirement for induced infringement in the context of drug labels). Our claim construction today makes it likely that the knowledge element for inducement of infring ement may be satisfied when, on remand, the district court reconsiders entry of a preliminary injunction. 1
II
The errors we have identified regarding claim co nstruction and infringement require a vacatur of the denial of the preliminar y injunction and a remand for procee dings consistent with this opinion

. In view of the need for a remand, we address other arguments made by L’Oreal. We note first that, o ther than the likelihood of success on the merits, the only factor in the preliminar yinjunction analysis that the district court itself found to weigh against Olaplex was that a preliminary injunction would not be in the public interest. District Court Opi nion , 2017 WL 2881351, at *7. But t he sole rationale given by the district court for that determination was that “the public interest is not served by protecting valid patents as against noninfringing uses .” Id. That finding is entitled to no weight, because it rests on the district court’s err oneous claim

- construction and noninfring ement analysis.
The district court did not rest its denial of the r equested preliminary injunction on a ny of the other bases advanced by L’Or é al for denying the injunction. Here, w e address such bases only in a limited way. We partially

1 We note that the Supreme Court has held that a belief regarding possible invalidity

— discussed infra

— does not negate knowledge of infringement. Commil USA, L.L.C. v. Cisco Sys., Inc. , 135 S. Ct. 1920, 1928

– 31 (2015).LIQWD , INC

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address two invalidity contentions made by L’Or é al: we indicate that one of the contentions d oes not appear to have the merit required to defeat a request for a prelim inary injunction, while an other may well have such merit and demand s full reconsideration on remand

. We also indicate why L’Or é al’s challenge to the district court’s finding in Olaplex’s favor on the irreparable

- harm and balance -of- equities issues is unpersuasive. We remand for further proceedings, on which developments since the initial preliminary

- inj unction proceedings may have a bearing

. A
It is the patent holder ’s burden, when moving for a preliminary injunction, to establish a likelihood of success on the merits. Entegris, Inc. v. Pall Corp. , 490 F.3d 1340, 1351 (Fed. Cir. 2007) ; Nat’l Steel Car
, Ltd. v. Canadian Pac. Ry., Ltd. , 357 F.3d 1319, 13 24

– 25 (Fed. Cir. 2004)

. If the alleged infringer presents a “substan tial question” of invalidity, and the patent holder does not establish the likely lack of merit of the invalidity contention, the pr elim inary injunction should not issue. Entegris , 490 F.3d at 1351 ; accord Genentech, Inc. v. Novo Nordisk A/S , 108 F.3d 1361, 1364 (Fed. Cir. 1997). The burden on the challenger to show a substantial question of invalidity at this stage is lower than what is required to prove invalid ity at trial. Amazon.com, Inc. v. Barnesandnoble.com, Inc.
, 239 F.3d 1343, 1359 (Fed. Cir. 2001) (“In resisting a preliminary injunc tion .

. . one need not make out a case of actual invalidity .

. . . The showing of a substantia l question as to invalidity thus requires less proof than the clear and convincing showing necessary to establish invalidity itself.”).

1
The district court tentatively stated a possible invali dity

- based ground for finding that Olaplex was unlikely to

suc c eed on the merits. It observed that Olaplex’s pr o-LIQWD , INC

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posed construction requires a “visual inspection” to d etermine whether a product infringes
, rather than provi ding a “method, standard, or any other objective measure” to determine when a sub stance was a hai r- coloring agent

. District Court Opinion , 2017 WL 2881351, at *4. For that
reason, the court concluded
, the claims if construed as Olaplex proposed (and as we have done) would “most likely” be indefinite. Id.
We review a district court’s legal concl usion of indefinite ness de novo and the underlying factual findings for clear error. Cox Commc’ns , 838 F .3d at 1228. To be definite, the claims must “inform, with reasonable ce rtainty, those skilled in the art about the scope of the invention.” Nautilus , Inc. v. Biosig Instruments, Inc. , 134 S. Ct. 2120, 2124 (2014). On the record before us, w e do not think that L’Or é al has raised a “substantial question” of indefiniteness. Our recent precedent establishes the incorrectness of t he district court’s ratio nale for thinking indefiniteness likely. I ndefinite ness does not necessarily follow from a claim’s reliance on visual inspection with the human eye

. Sonix Tech. Co., Ltd. v. Pub l’ns . Int’l., Ltd. , 844 F.3d 1370, 1378 (Fed. Cir. 2017) (“ T he question whether something is ‘visually negligible’... involves what can be seen by the normal human eye. This provides an objective baseline through which to interpret the claims.”). In this case, t here is ample evidence in the record that the identified
per sons o f ordinary skill in the art of hair

- care products know how to use visual inspection to determine with reasonable certainty whether a certain ingredient in a product would actually alter the color of hair

. As for the intrinsic evidence
, many examples in the ’419 patent call for visual inspection. In particular, the “Results” section of Example 7 reports that, “[u]pon visual inspections, the second hair sample treated with the active agent formulation showed little or no signs ofLIQWD , INC

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breakage,” while “the first hair sample treated with hydrogen peroxide showed significant breakage.” ’491
p atent, col. 25, lines 4 –7 ; see also, e.g.
, id. , col. 22, lines 61

– 64 (Example 3 results: “A noticeable difference in hair quality,” as sample treated according to claimed metho d was “less frizzy, appeared hydrated, with more shine than the control”); id. , col. 23, line 65 through col. 24, line 2 (Example 4 results: “healthy appearance” of hair treated according to claimed method as compared to “frayed with an unhealthy appearanc e” of control)

. Regarding visual inspection of color, Example 1 notes the “better color retention” in the hair sample treated according to the claimed method than in the control

. I d. , col. 21, lines 44

– 48; see also, e.g.
, id. , col. 22, lines 15

– 19 (Examp le 2 results: “active agent formulation displayed a color closer in intensity to the hair sample prior to the first washing, compared to the hair treated with hydrogen peroxide”)

. Extrinsic evidence also rebuts L’Or é al ’s contention that the claims are indefinite. T he internal testing r esults submitted by L’Or é al show its own application of the very same rubric

— to determine whether or not the level of coloring in L’Or é al’s products would change the color of hair
, L’Or é al’s scientists were conducting tes ts based on visual inspection

. J.A. 5432; J. A . 6767 (“Conclusion: . . . there is no significant visible difference”) (emphasis added)

. Such e vidence of a challenger’ s own ability to apply a term without unreasonable uncertainty counts against an indefini teness contention. See BASF Corp. v. Johnson Matthey Inc. , 875 F.3d 1360, 1368 (Fed. Cir. 2017); Sonix , 844 F.3d at 1379

– 80

. L’Or é al observes that the court in Sonix relied on detailed examples given in the patent’s specification , but the ’419 specification in this case itself include s examples that require visual inspe ction of the hair and its color. In any event, the evidence cited above that a person of ordinary skill in the art would know how to visually inspect hair for color cha nge isLIQWD , INC

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sufficient to show a likelihood of success in defending against an indefiniteness challenge

. Finally, L’Or é al points to expert testimony that da maged hair more readily takes up dye than undamaged hair, and therefore that a specific concentration of a coloring agent may color a damaged hair sample but not an undamaged hair sample, rendering the claims indefinite. But L’Or é al presents no evidence that the dye

uptake properties of damaged and undamaged hair are so disparate as to prevent reasonable cer tainty among persons of skill as to whether hair, damaged or unda maged, will be colored by a mixture containing a particular concentration of a coloring agent. L’Or é al itself tested its products on gray and on permed ( damaged ) hair to co nfirm that its pro ducts would not color the hair. See, e.g.
, J.A. 5431. “[T]he certainty which the law requires in patents is not greater than is reasonable, having regard to their subject

- matter.” Nautilus , 134 S. Ct. at 2129. L’Or é al has not shown a substantial question under that standard.

2
L’Or é al argued before the district court that the ’419 patent claims are invalid for obviousness in light of two references: Ogawa and Kim. District Court Opinion , 2017 WL 2881351, at *5

– 6. 2 The district court rejected the

2 L’Oréal also argued anticipation based on Ogawa, but the district court rejected the argument at the present stage of the case, stating
, e.g. , that it had “not explained how Ogawa applies in light of either of [Olaplex’s] claim constructions.” District Court Opinion , 2017 WL 2881351, at *5. L’Oréal argued as well that the patent failed to name an inventor, but the district court rejected the argument at this stage, stating
, e.g. , that L’Oréal had “not demonstrated that [Olaplex] could not correct invento r-LIQWD , INC

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contention . It stated: “A t this stage in the proceedings, the court is not inclined to second guess the assessment of the examiner, who had the Oga w a and Kim references before her, and who we assume had some expertise in i nterpreting the references and some familiarity with the level of skill in the art.” Id. at *6 (internal quotation marks omitted). The court added that L’Oréal had “not shown that [it] could carry [its] burden to prove obviou sness by clear and convincing evidence.” Id. We do not read this explanation as giving blanket de ference to the PTO, which would be impermissible, see Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prods. Gr p., LLC , No. 2016

- 2197, slip op. at 9

– 10 (Fed. Cir. Jan. 12, 2018). But t he district court set forth n o independent discussion of the merits of the obviousness challenge. We think that such a discussion is needed. After the district court entered its decision denying a preliminary injunction, the Patent Trial and Appeal Board institute d a Post

- Grant Review of claims 1

– 8 and 10 of the ’419 patent
, conclud ing that those claims are more likely than not unpatentable for obvious ness over the combination of Ogawa and two other references

— German Patent Application Publication No. 1,22 0,969 (Berkemer) and Korean Patent Application Publication No. 10

- 2006

- 0059564 (KR ’564)

. L’Oréal USA, Inc. v. Liqwd, Inc. , PGR2017

- 00012, 2017 WL 3085428, at *4

– 8.

ship if a trier of fact were to determine” that an inventor was unnamed. Id. at *6. The district court did not a ddress L’Oréal’s cont ention that Olaplex does not qualify as

a “patentee” entitled to sue for patent infringement under 35 U.S.C. § 281

— an issue to which t he parties each devote all of a paragraph in their briefs on appeal. We do not further discuss any of these three issues, which may be further explored on remand.LIQWD , INC

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(P.T.A.B. July 19, 2017). 3 In particular, the Board found that Ogawa disclosed all of th e limitation s of claim 1 of the ’419 patent except the selection of maleic acid from among various potential agents and that Berkemer pr ovided motivation for a person of skill in the art to select maleic acid from the other potential options. Id . at *5– 6. At the same time, the Board noted that there were su bstantial unresolve d questions related to secondary consi derations , and so it stressed that its conclusion s w ere being drawn “on the present record and for the purposes of the present decision.” Id . at * 8. We rely on the Board’s opinion here for a limited purpose

. Having carefully examined the obviousness issue presented to us in this appeal, w e think that the content of the Board’s discussion shows the need for the district

cou rt, in the case be fore us, to present a fuller discussion of the obviousness evidence and arguments than the opinion under review here contains. We do not defer to the Board’s prelim inary institution decision or assert agreement with all of the Board’s analysis. We merely find it sufficient to indicate why there may well be a “substantial question” of invalidity here, necessitating more analysis in this case than we now have.

3 The Board also drew the same conclusion regarding another combination of references. Id. at *8

– 11. The Board found no sufficient basis to institute a review of unpatentability for anticipation by Ogawa. Id. at *3

– 4. The same day that the Board instituted a review of unpatentability for obviousness, it separately declined to institute a review of unpatentability for indefiniteness, lack of written

- description support, and lack of enabl ement. L’Oréal USA, Inc. v. Liqwd, Inc. , PGR2017

- 00011, 2017 WL 3085427 (P.T.A.B. July 19, 2017)

.LIQWD , INC

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B
L’Oréal challenges the district court ’s finding that Olaplex would suffer irreparable harm in th e absence of a preliminary injunction. District Court Opinion , 2017 WL 2881351, at * 6

. We see no clear error of fact (or legal error) in the court’s finding

. S ee New England Braiding Co., Inc. v. A.W. Chesteron Co. , 970 F.2d 878, 882 (Fed. Cir. 1992) (p reliminary

- injunction factors reviewed for clear error ) . But we do not preclude reconsideration of the issue when the case returns to the district court, by which time the market will have changed since July 2017 in ways of potential relevance to the irreparable

- harm question. See Presidio Components, Inc. v. Am

. Tech

. Ceramics Corp. , 875 F.3d 1369, 1384 (Fed. Cir. 2017).
L ’Oréal argues in particular that the district court

e rred in findin g that the “ bond

- builder” market is a “two

player national market.” Appellees’ Br. 55 (citing District Court Opinion , 2017 WL 2881351, at * 6 ). L’Oréal notes the district court ’s statements that the bond

- builder market i s “new and growing” and that “other competitors have appeared” since 2014
, and it cites portions of the record discussing hair

- care products such as Colorphlex, Eslabondexx, and B3 Brazilian Bond Builder . Appellees’ Br. 55

– 56 (citing, e.g. , J.A. 3243

– 45). But the district court considered those products and found them to fall into the market category of “additives” or “conditioning products” rather than “ bond

- builders .” District Court Opinion , 2017 WL 2881351, at *6

. The court credited the testimony of Olaple x’s expert Dr. Nisha Mody, who stated that only Olaplex and L’Oréal sold bond

- builder products in the national market, J.A. 483

– 84, over the testimony of L’Oréal’s expert W. Todd Schoettlekotte, who opined that the market included other products such as th ose me ntioned above , J.A. 2911

– 12

. Id

. at *6 n.13. When the court referred to “other com petitors
, ” it was referring to L’Oréal’s expert’s expanded “ bond

- builder/additive ma r-LIQWD , INC

. v. L ’ OR É AL USA , INC

. 18

ket, ” which the court determined was not the relevant market for the assessment o f irreparable harm

. Id. at *6.
We conclude that the district court did not err when it determined that the bond

- builder market is a “ two

- player national market ” and that Olaplex would likely suffer irreparable harm from L’Oréal’s “ direct competition in [its] primary market .” Id .; see also Douglas Dynamics, LLC v. Buyers Prods. Co. , 717 F.3d 1336, 1345 (Fed. Cir. 2013) (“ Where two companies are in competition against one another, the patentee suffers the harm

— often irrep arable

— of being forced to compete against products that incorporate and infringe its own patented inventions .”) ; Robert Bosch LLC v. Pylon Mfg. Corp. , 659 F.3d 1142, 1151 (Fed. Cir. 2011) (“the existence of a two

- player market may well serve as a substantial ground for gran ting an injuncti on”)

. We need not here consider issues that might arise in a situation in which more firms are in the market but their products are themselves infringing. It suffices to say here that L’ Or éal has not shown the di strict court’s two

- player

- market finding to be clearly err oneous. Nor has it otherwise shown reversible error in the irreparable

- harm finding or in balancing the equities on the present record. As noted, however, the irreparable

injury issues may be reconsidered on remand, which could l ead to a change in the balancing of the equities

. L’Oréal also argues that the district court erred by concluding that the balance of the equities favored gran ting the injunction. But L’Oréal makes its argument contingent on its irreparable

- harm arguments , stating, “the district court relied principally on the purported harm t o Olaplex, which it self is insufficient to warran t injunctive relief. ” Appellee s’ Br. 56. Because we do not find reversible error in the district court’s finding of irreparable harm to Olaplex
, this argument likewise fails.LIQWD , INC

. v. L ’ OR É AL USA , INC

. 19

III For the foregoing reasons we vacate the district court’s d enial of a preliminary injunction and remand for further proceedings in accordance with this opinion

. Costs awarded to appellants.
VACATED AND REMANDED