Sunday, February 9, 2014

A Road Trip Puzzler -- How Much To Disclose -- In L'Oreal's Octocrylene Patent Fight?

Up and out early on a Sunday, here -- as more shoveling is required (again!), and a spur of the moment brunch trip a few hundred miles north -- to buy college-attending son no. 2 some chicken & waffles(!) -- now both beckon. . . .

However, before I bounce, I'll note this one scruples question, rattling about -- in my head: Here's the background -- in the "Son of Sunscreen Battles Royale" patents spat. It seems I was lucky enough to have collected a public copy of a very-recent motion to amend the complaint in this patent fight. As of this morning, that filing has been placed under seal, by the federal District Court, for the District of Delaware.

And so, as I make the road trip, I'll think about how much -- or how little -- of what I learned from my copy of it may be shared with the readership.

It is plain that I may indicate that the grounds for amending the complaint included an allegation of inequitable conduct, and an allegation of intentional concealment, from the U.S. patent authorities, related to one of the patents in issue -- back in 1992 to 1994. The public docket entry still discloses as much.

What will be interesting, longer term, is whether this bit of motion practice, if resolved against the patent holder -- will lead to the reopening of the legacy Schering-Plough Cppertone® v. J&J's Neutrogena® battles (under both the Lanham Act; and various patent infringement claims), of a few summers back. That one involved many of the same questions. So -- both the "original suit(s)", and the "son of" -- may be ongoing, once again -- by this coming summer. We shall see. But with another six inches underfoot, sunscreen season seems several light-years off. At least it is sharp, crackling-crisply cold and brightly-sunny, outdoors today. Onward.

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