NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LIQWD, INC., OLAPLEX LLC,

Plaintiffs-Appellants

v.

L’ORÉAL USA, INC., L’ORÉAL USA PRODUCTS, 

INC., L’ORÉAL USA S/D, INC., REDKEN 5TH 

AVENUE NYC, L.L.C., L’ORÉAL S.A.,

Defendants-Appellees

______________________ 

2017-2295

______________________ 

Appeal from the United States District Court for the 

District of Delaware in No. 1:17-cv-00014-SLR, Judge Sue 

L. Robinson.

______________________ 

Decided: January 16, 2018 

______________________ 

 SANFORD IAN WEISBURST, Quinn Emanuel Urquhart & 

Sullivan, LLP, New York, NY, argued for plaintiffsappellants. Also represented by MATTHEW KEMP

BLACKBURN, MICHELLE ANN CLARK, San Francisco, CA; 

JOSEPH M. PAUNOVICH, Los Angeles, CA. 

 NAVEEN MODI, Paul Hastings LLP, Washington, DC, 

argued for defendants-appellees. Also represented by 
2 LIQWD, INC. v. L’ORÉAL USA, INC. 

STEPHEN BLAKE KINNAIRD, JOSEPH PALYS, DANIEL 

ZEILBERGER. 

______________________ 

Before DYK, REYNA, and TARANTO, Circuit Judges.

TARANTO, Circuit Judge.

U.S. Patent No. 9,498,419 describes and claims a 

method of bleaching hair by applying to the hair a mixture created by combining (a) a bleaching formulation 

with (b) a second formulation containing an active agent 

that reduces or repairs damage to the keratin proteins of 

the hair—damage that can result from bleaching, perming, or other hair-treating processes. The patent lists 

various compounds that can serve as the active agent, 

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 agent.” ’419 Patent, col. 26, lines 4–5.

This case was filed by Liqwd, Inc., as 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 category”—“bond 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 claims references to the chemical 

structure for dimaleate shown in Olaplex’s complaint. 

J.A. 1938. But it is undisputed here that dimaleate does 

not come within the ’419 patent claims.

L’Oréal USA, Inc., sells products that compete directly 

with Olaplex in the bond-builder hair-care market. 

Olaplex brought the present suit against L’Oréal in 
LIQWD, INC. v. L’ORÉAL USA, INC. 3

January 2017. Olaplex alleged that L’Oréal directly

infringed and induced infringement of the ’419 patent by 

its use and by its sale with instructions for use (including 

literature, in-person training sessions, and training 

videos) of three L’Oréal products—Matrix Bond Ultim8 

Step 1 Amplifier, Redken pH–Bonder #1 Bond Protecting 

Additive, and L’Oréal Professionnel Smartbond Step 1 

Additive. Liqwd, Inc. v. L’Oréal USA, Inc., No. 17-cv-14-

SLR, 2017 WL 2881351, at *2 (D. Del. July 6, 2017)

(District Court Opinion). Olaplex alleged, and L’Oréal 

does not dispute for purposes of this appeal, that the 

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 excluded L’Oréal’s products, the court concluded, Olaplex had failed to show a likelihood 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 in 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 preliminary 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 erroneous factual findings.” Novo Nordisk of N. Am., Inc. v. Genentech, Inc., 77 

F.3d 1364, 1367 (Fed. Cir. 1996). To obtain a preliminary 
4 LIQWD, INC. v. L’ORÉAL USA, INC. 

injunction in the district court, the movant must show 

that (a) it is likely to succeed on the merits, (b) it would 

suffer irreparable harm in the absence of the preliminary 

injunction, (c) the balance of equities favors the movant, 

and (d) the injunction is in the public interest. Winter v. 

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see, 

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 questions 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 construction of the term “hair coloring agent.” Claim 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% by weight to about 50% by weight;

and 

wherein the mixture does not contain a 

hair coloring agent. 
LIQWD, INC. v. L’ORÉAL USA, INC. 5

’419 patent, col. 25, line 42 through col. 26, line 5. 

In the district court, Olaplex argued that “hair coloring agent” 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 that 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 rejection of that construction was 

its main basis for finding no likelihood of success on the 

merits. The court reasoned 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, the 

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 concentrations that it does not color hair. Id. at *3. That construction likely excluded the accused L’Oréal products, the 

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 relies 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) “hair 
6 LIQWD, INC. v. L’ORÉAL USA, INC. 

coloring agent” as referring to a customary hair-coloring 

composition that is present in the 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 

substance 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: “haircoloring.” Context is central in claim 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 the method 

claims’ 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 functions.”). It is beyond dispute that not 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. Accordingly, it is one natural interpretation of 

the claim language, in context, to focus on what is actually present in the mixture, considering both chemical 

identity and quantity. In short, it is natural to say that a 

particular mixture “does not contain a hair-coloring 

agent,” despite the presence of certain identified molecules 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 the prosecution history speaks 
LIQWD, INC. v. L’ORÉAL USA, INC. 7

clearly. The prosecution history confirms the above 

interpretation and adds precision. 

Olaplex added the phrase at issue by amending 

claim 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 rejected in light of prior art that used maleic acid itself in hairdyeing 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 mixture 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. 2325 (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 inspection.” 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 “changes 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 Pharms., Inc. 
8 LIQWD, INC. v. L’ORÉAL USA, INC. 

v. Teva Pharms. USA, Inc., 731 F.3d 1271, 1276–77 (Fed. 

Cir. 2013).

Amendments and statements made during prosecution, which come after the filing of the application, may of 

course modify what claim-construction lessons might be 

drawn from the earlier-filed specification in the absence of 

such prosecution history. But here we see no inconsistency regardless. The specification identifies “hair coloring 

agents” separately from the more inclusive term “dyes.” 

See, e.g., ’419 patent, col. 11, lines 20–33. That distinction 

fits the understanding that the former must actually color 

hair, while the latter may or may not. In addition, although the specification describes some agents, like “active 

agent[s],” in terms of specific formulations and concentrations (see, e.g., id., col. 7, line 26 through col. 11, line 18), 

the specification sometimes describes others, like “bleaching 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 specifically identifying concentrations. Thus, nothing in the specification contradicts the understanding of the claim phrase 

“hair coloring agent” as referring to actually coloring hair 

at whatever concentration is used in the product. 

In short, the 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’Oréal indirectly infringed by inducing 

direct infringement by its customers, specifically salon 

technicians, the district court stated one reason in addition to the claim-construction rationale for rejecting the 
LIQWD, INC. v. L’ORÉAL USA, INC. 9

direct-infringement allegation. It concluded that Olaplex

had “not satisfied the knowledge requirement” for induced 

infringement because Olaplex failed to “demonstrate[] 

that [L’Oréal] knew that [its] customers’ acts [in following 

the products’ instructions for use] constitute infringement.” District Court Opinion, 2017 WL 2881351, at *4–5 

(emphasis added). That 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 infringement, including active inducement of infringement, 

is often “an ongoing offense that can continue after litigation 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. Quanta 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 inducement of infringement”); see also Seagate, 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 infringement”).

Accordingly, to obtain a preliminary injunction, 

Olaplex need not demonstrate that it is reasonably likely 

to succeed in proving that L’Oréal knew, before this suit 

began, that its instructions for use would induce infringement. Rather, Olaplex must demonstrate, inter 

alia, that it is reasonably likely to succeed in proving that 

the instructions for use induce infringement and that 

L’Oréal knows, at the time a preliminary injunction is to 
10 LIQWD, INC. v. L’ORÉAL USA, INC. 

take effect, that the instructions for use will induce infringement. 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 infringement may be satisfied when, on remand, the district court 

reconsiders entry of a preliminary injunction.1

II

The errors we have identified regarding claim construction and infringement require a vacatur of the denial 

of the preliminary injunction and a remand for proceedings consistent with this opinion. In view of the need for 

a remand, we address other arguments made by L’Oreal.

We note first that, other than the likelihood of success 

on the merits, the only factor in the preliminaryinjunction 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 Opinion, 2017 WL 2881351, at *7. But the 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 erroneous claim-construction and noninfringement analysis.

The district court did not rest its denial of the requested preliminary injunction on any of the other bases

advanced by L’Oréal for denying the injunction. Here, we 

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. v. L’ORÉAL USA, INC. 11

address two invalidity contentions made by L’Oréal: we 

indicate that one of the contentions does not appear to 

have the merit required to defeat a request for a preliminary injunction, while another may well have such merit 

and demands full reconsideration on remand. We also 

indicate why L’Oréal’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-injunction 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, 1324–25 (Fed. Cir. 2004). If 

the alleged infringer presents a “substantial question” of 

invalidity, and the patent holder does not establish the 

likely lack of merit of the invalidity contention, the preliminary 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 invalidity at trial. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 

239 F.3d 1343, 1359 (Fed. Cir. 2001) (“In resisting a 

preliminary injunction . . . one need not make out a case 

of actual invalidity . . . . The showing of a substantial 

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 invalidity-based ground for finding that Olaplex was unlikely to 

succeed on the merits. It observed that Olaplex’s pro-
12 LIQWD, INC. v. L’ORÉAL USA, INC. 

posed construction requires a “visual inspection” to determine whether a product infringes, rather than providing a “method, standard, or any other objective measure” 

to determine when a substance was a hair-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 conclusion of indefiniteness 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 certainty, 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, we do 

not think that L’Oréal has raised a “substantial question” 

of indefiniteness.

Our recent precedent establishes the incorrectness of 

the district court’s rationale for thinking indefiniteness 

likely. Indefiniteness does not necessarily follow from a 

claim’s reliance on visual inspection with the human eye. 

Sonix Tech. Co., Ltd. v. Publ’ns. Int’l., Ltd., 844 F.3d 1370, 

1378 (Fed. Cir. 2017) (“The 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, 

there is ample evidence in the record that the identified 

persons of 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 of 
LIQWD, INC. v. L’ORÉAL USA, INC. 13

breakage,” while “the first hair sample treated with 

hydrogen peroxide showed significant breakage.” ’491 

patent, 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 method 

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 appearance” 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. Id., col. 21, lines 44–

48; see also, e.g., id., col. 22, lines 15–19 (Example 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’Oréal’s contention 

that the claims are indefinite. The internal testing results submitted by L’Oréal show its own application of the 

very same rubric—to determine whether or not the level 

of coloring in L’Oréal’s products would change the color of 

hair, L’Oréal’s scientists were conducting tests based on 

visual inspection. J.A. 5432; J.A. 6767 (“Conclusion: . . . 

there is no significant visible difference”) (emphasis 

added). Such evidence of a challenger’s own ability to 

apply a term without unreasonable uncertainty counts 

against an indefiniteness contention. See BASF Corp. v. 

Johnson Matthey Inc., 875 F.3d 1360, 1368 (Fed. Cir. 

2017); Sonix, 844 F.3d at 1379–80. L’Oréal observes that

the court in Sonix relied on detailed examples given in the 

patent’s specification, but the ’419 specification in this 

case itself includes examples that require visual inspection 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 change is 
14 LIQWD, INC. v. L’ORÉAL USA, INC. 

sufficient to show a likelihood of success in defending 

against an indefiniteness challenge. 

Finally, L’Oréal points to expert testimony that damaged 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’Oréal presents no evidence that the dyeuptake properties of damaged and undamaged hair are so 

disparate as to prevent reasonable certainty among 

persons of skill as to whether hair, damaged or undamaged, will be colored by a mixture containing a particular 

concentration of a coloring agent. L’Oréal itself tested its 

products on gray and on permed (damaged) hair to confirm that its products 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’Oréal has not shown a substantial question under that 

standard.

2 

L’Oréal 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 inventor-
LIQWD, INC. v. L’ORÉAL USA, INC. 15

contention. It stated: “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 had some expertise in 

interpreting 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 obviousness by clear and convincing evidence.” Id. 

We do not read this explanation as giving blanket deference to the PTO, which would be impermissible, see 

Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prods. 

Grp., LLC, No. 2016-2197, slip op. at 9–10 (Fed. Cir. Jan. 

12, 2018). But the district court set forth no 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 instituted a Post-Grant Review of claims 1–8 and 

10 of the ’419 patent, concluding that those claims are

more likely than not unpatentable for obviousness over 

the combination of Ogawa and two other references—

German Patent Application Publication No. 1,220,969 

(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 address L’Oréal’s contention that Olaplex does not qualify as 

a “patentee” entitled to sue for patent infringement under 

35 U.S.C. § 281—an issue to which the 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.
16 LIQWD, INC. v. L’ORÉAL USA, INC. 

(P.T.A.B. July 19, 2017).3 In particular, the Board found 

that Ogawa disclosed all of the limitations of claim 1 of 

the ’419 patent except the selection of maleic acid from 

among various potential agents and that Berkemer provided 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 substantial unresolved questions related to secondary considerations, and so it stressed that its conclusions were 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, we think that the content 

of the Board’s discussion shows the need for the district 

court, in the case before 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 preliminary 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 enablement. L’Oréal USA, Inc. v. Liqwd, Inc., PGR2017-00011, 

2017 WL 3085427 (P.T.A.B. July 19, 2017). 
LIQWD, INC. v. L’ORÉAL USA, INC. 17

B 

L’Oréal challenges the district court’s finding that 

Olaplex would suffer irreparable harm in the 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. See New England Braiding 

Co., Inc. v. A.W. Chesteron Co., 970 F.2d 878, 882 (Fed. 

Cir. 1992) (preliminary-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 

erred in finding that the “bond-builder” market is a “twoplayer 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 is “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 Olaplex’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 those mentioned above, J.A. 2911–12. Id. at *6 n.13. When the 

court referred to “other competitors,” it was referring to 

L’Oréal’s expert’s expanded “bond-builder/additive mar-
18 LIQWD, INC. v. L’ORÉAL USA, INC. 

ket,” which the court determined was not the relevant 

market for the assessment of 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 irreparable—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 granting an injunction”). 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’Oréal has not shown the district court’s two-player-market finding to be clearly erroneous. 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 irreparableinjury issues may be reconsidered on remand, which could 

lead 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 granting the injunction. But L’Oréal makes its argument 

contingent on its irreparable-harm arguments, stating, 

“the district court relied principally on the purported 

harm to Olaplex, which itself is insufficient to warrant 

injunctive relief.” Appellees’ 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’ORÉAL USA, INC. 19

III

For the foregoing reasons we vacate the district 

court’s denial of a preliminary injunction and remand for 

further proceedings in accordance with this opinion. 

Costs awarded to appellants.

VACATED AND REMANDED