BEAUTY LIES IN THE EYES OF BEHOLDER: L’OREAL’S VICTORY AGAINST INDEFINITE PATENTS

INTRODUCTION:

It all started when L’Oréal in 2010, launched its new range of skincare products which were termed the Youth Code line. This line was essentially for “mature skin” which is prone to sagging and affected by the increase of elasticity of facial muscles that occurs due to ageing. Now this range of products promised to defy ageing by a new substance in its products known as “adenosine”. Adenosine which also known as the “Anti-wrinkle superhero”[1] (a term given by L’Oréal itself) is a molecule that is found in skin cells that acts at the dermis level to produce collagen”[2]. The collagen that is eventually produced helps in protecting the elasticity which will help in avoiding the process of sagging of skin.  The molecule primarily helped women in maintaining firmer and radiant faces. But then the University of Massachusetts and Teresian Carmelites filed a suit against L’Oréal for violating their patent by using the molecule adenosine. According to the details of the suit, the University of Massachusetts was the one responsible for creating the molecule and they had eventually licensed the Carmelites to use adenosine in their products.

As a result of this license in 2010 Carmelites along with Caramel labs launched a product called “Easamine” and they were quite a success until L’Oréal launched its range of products which was bound to affect the sales of Easamine. The product and their sales were focused on developing funds for the Carmelites’ monastery and arranging for its mortgage which would not be procured if L’Oréal continues to exist in the market.

This is when they decided to file a suit as the University had the patent for “treating skin by adenosine” under US numbers 6,423,327 and 6,645,513. Their patent claim specifically mentioned how adenosine was supposed to affect the dermal skin cells of mammals and then enhance the complexion as well as the total health of the skin. Their claim had specified the amount of adenosine to be used in a composition and what range would be best for attaining the specific objective.  The two patents had different ranges of adenosine and reflected the method of treating skin cells.

INDEFINITE PATENTS:

L’Oréal contended that this was an indefinite patent and it needed to be declared invalid. According to them the effects of “enhancing the laxity of skin and removing dryness and roughness” were elements that couldn’t be defined and had no specific boundaries. Also, the interpretation of “application of adenosine” for the purpose of treatment of dermal cells was also under dispute. Where L’Oréal maintained that the effect was to be understood in the light of effects which were obtained after applying the product on the epidermis layer of the skin, University contended that it was the eventual treatment led by the rejuvenation of skin cells that will happen after the skin absorbs the product and it reaches the dermal skin cells.

Now, this is not the first case where what comprises “indefinite patents” have been taken up. Recently U.S. Court of Appeals for the Federal Circuit (CAFC) held the term “computer” to be indefinite[3].  In the case of Infinity Computer Products Inc. Vs OKI Data Americans Inc, the claims of Infinity’s patent were found to be indefinite which means that any claim which doesn’t have a specific definition.  The term “computer” and “passive links” were found to have a varied range of interpretations due to which the patent was invalidated later on.

Under Section 35 U.S.C § 112(b) of the Patent Act requires that the claims of a patent “particularly point -out and distinctly claim the subject matter which the inventor … regards as the invention[4].  L’Oréal maintained that the University failed to specifically mention the specifics of claims and the method of treatment that they essentially wanted to protect, due to which the competitors in the market and the general public would have no knowledge of the extent of patent and they would not be able to bring new products that would involve adenosine without infringing the patent.

Multiple cases have dealt with the issue of “indefinite patents” over time. Cases like Nautilus Vs Biosig[5], Interval Licensing LLC v. AOL[6], have defined the boundaries of what pertains to be “indefinite claims” and provide that the information in the claims should be able to clarify as to what are the key elements of the innovation to any person who is skilled in the art of the invention.

INDEFINITENESS OF BEAUTY STANDARDS:

In this case, as well, the claims were found to be failing the standards of definiteness. The claim wherein they prescribed the range of adenosine be used on dermal skin cells, it was pointed out that the claim only reflected the range of molecule that could be used over the dermal skin cells and not the composition which made it confusing as to what range of adenosine for the treatment was used by the University in their method’s “composition”.

Apart from all of the indefiniteness over the composition, another issue was how the effects of the process of treatment will be analyzed. The claim maintained that the eventual effect of the method and the composition would be in enhancing the skin quality by decreasing elasticity, making the skin firmer and appear to be more youthful.

L’Oréal contended that what is the limit of this effect as beauty norms are subjective from one person to another and cannot be limited to just one standard. The treatment and rejuvenation were promised to help the skin’s laxity and a lot of anti-ageing products promise that but how did their products manage to bring a change specifically with the different forms of beauty standards available was not at all clear. It differs in accordance to the perspective of the individual and as to how they perceive beauty. Beauty has no specific definition and it depends on an individual’s preference. Even the process of rejuvenation can have multiple interpretations. The disappearance of fine lines, wrinkles is a process that will differ from one individual to another and neither the composition nor the effect was definite and had any specific scope attached to them. Ordinary people would have no understanding of this process and it can only be ascertained by reference to multiple doctors, skin specialists, etc. which would in itself reflect that the claim herein has no plain meaning and is subjective to multiple interpretations by different people.

Even the person skilled in the art would not be able to ascertain as to what was the effective domain of protection that they were aiming at by such form of patent. This would only make the competitors leave the market as without any definite scope they would not be able to use the molecule “adenosine” in its entirety which would be wrong as that was never the subject of the patent. The subject matter of the patent was the method of treatment which had no definite scope and no adenosine molecule which was why eventually the patent was invalidated.

CONCLUSION:

L’Oréal continues to use adenosine in its multiple products, and its Youth line continues to be in existence even today. In fact, the organization has a specific page dedicated to what is adenosine and how it helps women having “mature skin” i.e women who are above the age of 50. It also informs about the whole process of the treatment of skin by adenosine. One of its products is called L’Oréal Paris Revitalift Crystal Micro-Essence With Salicylic Acid’s main component is adenosine.

But the case leads to a different question, that multiple brands in the cosmetic industry have a variety of patents on different technologies. A recent study has shown that defensins, a group of antimicrobial peptides that activate stem cells to produce new skin, provide incredible anti-ageing effects[7]. Considering the fact that all of these anti-ageing products have been provided patents, the norm of “beauty lies in the eyes of beholder’s” application seems shaken up. What will be the definition of this new skin and how are the competitors supposed to know the scope of the patent here. It also raises a question on a lot of anti-ageing patents which are granted to some of the major brands of the cosmetic industry, and how their dimensions need to be perceived.

 This case somewhere reflects to be one of the many attempts of affecting a small company’s business and this is not the first incident where L’Oréal would be attempting to do something like this. Olaplex a small start-up company had accused L’Oreal of stealing the secrets in a meeting in California in 2015 when the companies were in talks for L’Oreal to buy the start-up. L’Oreal, during a weeklong trial, said it independently conceived the use of a critical acid in August 2014 and developed its products on its own[8]. Later Olaplex was the one that won this case. This was a case of indefinite patents and most probably poor drafting but even L’Oréal’s incessant breaches of small companies’ rights should not be neglected.

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[1]L’OREAL PARIS, What can adenosine do for my mature skin?, last accessed on (January 2,2022, 8:40 AM)  https://www.lorealparis.co.in/what-can-adenosine-do-for-my-mature-skin

[2] Muireann Bolger, L’Oreal wins infringement suit over ‘indefinite’ patents, Life Sciences Intellectual Property Review, last accessed on (December 30,2021) https://www.lifesciencesipreview.com/news/l-oreal-wins-infringement-suit-over-indefinite-patents-4433

[3] Andrew Tuggle, “Anything You Say …” — Terms with Inconsistent Definitions Are Indefinite, Patent 213

[4] 35 U.S. Code § 112

[5] 572 U.S. 898, 901 (2014)

[6] 766 F.3d 1364, 1371

[7] Dilworth IP, Patent Beauty: IP and the Cosmeceutical Industry, Lexology, last accesed on (January 5,2022, 6: 50 PM)  https://www.lexology.com/library/detail.aspx?g=fd05cfbb-d3ac-4a11-a137-3ca551a6c27c

[8] Christopher Yasiejko, L’Oreal owes Olaplex $91 million for stealing trade secrets, Los Angeles Times, last accessed on (January 5,2021,9: 45 AM )