March 12, 2013, by Mandour & Associates, APC

Los Angeles – A Los Angeles federal judge granted partial summary judgment to Allergan, Inc. on Tuesday, saying that Allergan had proven that Cosmetic Alchemy, LLC had induced its customers to infringe Allergan’s patent that covers its popular growth drug for eyelashes.

Allergan argued that Cosmetic Alchemy induced its customers to infringe Allergan’s patents by providing a product containing bimatoprost to accelerate hair growth and providing instructions that mirrored Allergan’s patented methods.

U.S. District Judge James V. Selna of the Central District of California in Los Angeles sided with Allergan and ruled that Cosmetic Alchemy had induced its customers to infringe Allergan’s patent for Latisse by directing its customers to apply its eyelash growth drugs, LiLash and LiBrow, using exactly the same steps as Allergan’s patented methods describe in U.S. Patent Number 6,262,105.

“There is no genuine dispute of material fact precluding summary judgment on the contributory infringement claim,” Judge Selna wrote.  “Thus, the undisputed facts show that Cosmetic Alchemy, through its advertisements, communications with customers, product instructions, and sales, intends to induce and does induce customers to follow each step of the patented methods in the ‘105 Patent.”

Cosmetic Alchemy argued that Judge Selna should not grant the request for summary judgment because the compound used to promote hair growth has unpredictable results and testing has not been performed to prove that LiLash promotes hair growth.  Cosmetic Alchemy also claimed that it does not claim its products make hair grow in its marketing materials.

Judge Selna said that Cosmetic Alchemy’s lack of testing argument is weak and said that the company did nothing to prove that bimatoprost does not grown hair.  He also pointed out that Allergan submitted evidence that consumers have experienced hair growth when using products containing bimatoprost and that Cosmetic Alchemy marketed LiLash as a product to increase hair growth.

The lawsuit started when Allergan filed lawsuits against several providers of eyelash-growth products, including Cosmetic Alchemy in 2007.  The complaints accused the companies of patent infringement and of engaging in unfair competition by selling hair growth products that had not been approved by the U.S. Food and Drug Administration.

The judge has yet to rule on Allergan’s other claims against Cosmetic Alchemy.

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January 3, 2013, by Mandour & Associates, APC

Los Angeles – The United States Patent and Trademark Office said in a preliminary ruling that one of Apple Inc.’s touch-related patents, a patent that played a large role in securing Apple over $1 billion in damages from Samsung Electronics,  should never have been granted.

After reexamination of the patent application by the USPTO, the agency rejected all of Apple’s 26 claims in its pinch-to-zoom patent on Wednesday.  The patent in question, patent No. 7,844,915, covers software that differentiates between single-touch and multitouch motions.  The software allows the smartphone to differentiate between scrolling and gesturing commands.

According to a document issued by the USPTO, which Samsung filed with the federal court in San Francisco on Wednesday, several portions of the patent were discarded based on findings that prior patents owned by Apple protect the same technology.  Patents are only valid if the invention is novel considering all prior art.  According to the USPTO’s report, Apple’s pinch-to-zoom patent does not live up to this standard.

Apple is expected to appeal this preliminary ruling.  The USPTO often rejects patents, only to reinstate them later, so the patent may still be held valid.  However, if the decision does hold, the rejection of the patent will have lasting consequences for Apple.  Since Apple claimed that its pinch-to-zoom patent was one of its most commercially valuable patents, demanding a $3.10 per unit royalty from Samsung for any future use of the patented technology, it could have a large impact on the verdict Apple received in August.

Samsung is already claiming that this new action from the USPTO supports its bid for a new trial, which Samsung is requesting as an attempt to reduce the $1.05 billion in damages that a San Francisco jury awarded Apple.

The pinch-to-zoom patent is only one of six of Apple’s patents that Samsung was found to be infringing during the companies’ patent trial.  However, due to Apple’s claims of the commercial importance of the patent, it could prove grounds for retrial, though it is more likely that the verdict will just be reduced.

This is the second patent related to the Samsung case that has been struck down by the USPTO since the August decision.  In October, the USPTO rejected Apple’s patent for the feature that makes pages bounce when a user swipes a finger from the top to the bottom of the touch screen.

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