Pond's Clear Pore Strips Does Not Infringe Patent For Removing Blackheads

Case: Kao Corp. v. Unilevel United States, Inc., Case No. 05-1038, -1049 (Fed. Cir. 3/21/06)

The One Sentence Summary: Patent for removing blackheads from skin was valid but not infringed by a product that used a chemical compound excluded by the patent.


What They Were Fighting About: Unilever alleged that patent held by Kao was invalid because of insufficient written description, obviousness and inequitable conduct and that its Pond’s Clear Pore Strips product did not infringe.

Federal Circuit Holdings:

• The patent claimed a method for removing blackheads with a cosmetic article comprised of wetting the article, applying it on the skin, and peeling the article off after it had dried using a poly(alkyl vinyl ether/maleic acid) copolymer or a polyalkylvinyl ether/maleic anhydride) copolymer.
• Affirms the district court’s holding that Kao complied with the written description requirement set forth in 35 U.S.C. § 112, rejecting Unilever’s argument that the patent failed to alert a person having ordinary skill in the cosmetic field of the wetting step. The district court held that the claims apprised persons of ordinary skill in the art to the wetting step by including the phrase “wetting the skin or said cosmetic article” and that a detailed description of the wetting step was not necessary.
• Unilever’s prima facie case that the '382 patent was obvious in light of two prior patents was rebutted by the evidence of Kao’s “unexpected results” in achieving a 23% blackhead removal ratio as compared to the 4% ratio achieved using a polyvinyl alcohol in an earlier patent (Gueret). Even if another patent (Gangadharan) was actually the closest prior art and should have been compared by the district court, Unilever failed to demonstrate that Gangadharan achieved a removal ratio that would make Kao obvious.
• Affirms district court’s holding that the selective disclosure of the most positive available data did not constitute inequitable conduct invalidating Kao’s patent. Although the omissions were material, the trial court did not find the requisite intent to deceive because the data was ultimately presented to the examiner.
• Affirms district court’s holding that Unilever’s product did not literally infringe because it did not meet the copolymer limitation of the claims. The district court construed that limitation to mean either poly(alkyl vinyl ether/ maleic acid) copolymer or poly(alkyvinyl ether/maleic anhydride) copolymer, but not the salt form thereof, which was used by Unilever.
• Judge Newman concurred that the patent was valid but dissented with regard to infringement, finding that the Unilever product did not use the salt form of the copolymer that was excluded from the patent.
• Judge Mayer concurred with regard to inequitable conduct and non-infringement, but dissented with regard to the affirmance of nonobviousness because the Kao introduced no evidence that its invention removed blackheads unexpectedly better than the Gangadharan invention.