So naturally, my interest was piqued by a big-time IP battle over hair coloring technology, pitting industry giant L'Oréal and its lawyers from Paul Hastings against a tiny California start-up represented by a team from Quinn Emanuel Urquhart & Sullivan. They'll square off in Delaware federal court at 10:00 a.m. today, battling over an all-important preliminary injunction. It's the second go-round. Last year, now-retired U.S. District Judge Sue Robinson refused to grant the injunction, ruling that Quinn Emanuel's client, Olaplex, was not likely to succeed on the merits. But the U.S. Court of Appeals for the Federal Circuit in January ruled that she got the claim construction wrong, and vacated her decision. U.S. District Judge Sherry Fallon has taken over the case, which revolves around a process for bleaching hair without damaging it. Based on my Sun In experience and a few ill-advised attempts at going platinum in my early 20s, I can vouch that it's not easy to lighten your hair without frying it. Or as Quinn Emanuel partner Joseph Paunovich and co-counsel from Morris, Nichols, Arsht & Tunnell explained in the complaint , bleaching can create “fragile hair fibers that break easily. If bleach is allowed to stay on the hair too long, it can cause hair to melt (disintegrate), or even to fall out. Repairing damaged hair has long been a shared concern of hair care professionals and their clients. Prior to Olaplex, hair care professionals lived with the fear that bleaching could ruin their client's hair.” Word. Olaplex founder and CEO Dean Christal's mother ran a hair salon and his father was a distributor of beauty products. He teamed up with two chemistry experts and (literally) working out of a garage in Southern California, they “came up with a chemical additive that repaired the breakage that occurs in bleaching treatments,” Paunovich told the court last year. “This was an absolutely revolutionary product, never before discovered, and it took the world by storm,” he said. “That is not hyperbole to say that it really was, it was a game changer. This is a real product backed by real science which they have made into a very successful business.” The Olaplex Bond Multiplier No. 1 launched in 2014, and soon caught L'Oréal L'Oreal's eye. The world's largest cosmetics company, with $27 billion in revenue last fiscal year, L'Oréal L'Oreal contemplated buying Olaplex (and also tried to hire away Olaplex's two chemistry experts who invented the process). It entered into a non-disclosure agreement to review the start-up's financial and technical information. In September 2015, L'Oréal said it was no longer interested in buying Olaplex, and promptly launched three competing products of its own: Matrix Bond Ultim8 Step 1 Amplifier, Redken pH-Bonder #1 Bond Protecting Additive, and L'Oréal Professionnel Smartbond Step 1 Additive. In a not-shocking move, Olaplex sued. “They invented their products and their inventions in a garage, and they've literally become the market share leader in this category,” Paunovich told the court last year, according to a hearing transcript. “And if we let L'Oréal get away with it, frankly, anybody will be able to do the same thing.” If the case ever gets before a jury, no question he's got the more compelling story to tell. L'Oréal L'Oreal's team from Paul Hastings led by Dennis Ellis with co-counsel from Richards, Layton & Finger is stuck defending the case on more technical grounds. They assert that the allegedly infringed patent is “more likely than not” to be invalidated by the Patent Trial and Appeal Board next month, that L'Oréal products don't infringe, and also that an injunction is inappropriate because Olaplex does not face irreparable harm. “The evidence L'Oréal USA previously submitted, as well as new evidence from around the world, including testimony of Olaplex's own expert in the U.K., further support the invalidity of claim 1,” the L'Oréal lawyers wrote in court papers filed earlier this month. “[N]othing Olaplex previously argued overcomes L'Oréal USA's past arguments. For instance, Olaplex previously argued that Ogawa's maleic acid formulation is limited to its use for hair dyeing. However, its own expert, Dr. Borish, disagreed with Olaplex.” Moreover, they said, “the market for bonder products has increased dramatically…There are thus serious questions as to whether Olaplex has established any harm, much less irreparable harm, a prerequisite for a preliminary injunction.” Stay tuned for how it all washes out. |

What I'm Reading

Meet Dolly Gee, the Judge Who Will Consider DOJ's Request on Family Detentions She's the first Chinese-American woman to serve as a district judge, and has overseen big immigration cases before. Sacramento Judge Puts the Jeff Sessions Suit Against California on Trial The hearing, more than five hours long, resembled more of a trial at times than an injunction hearing. New York DFS Fines Deutsche Bank $205M for Foreign Exchange Trading Conduct New York state's banking and insurance regulator concluded that Deutsche Bank engaged in “improper, unsafe and unsound conduct in its foreign exchange business” Federal Circuit Zeros Out Coke Zero Trademark Win “When you have a term that people understand to refer to the thing, the first gigantic user can't monopolize it.” Rennert, Arnold & Porter Head Toward Settlement in $214M Malpractice Case Billionaire Ira Rennert says former Kaye Scholer partner Peter Haveles Jr. (now a partner at Pepper Hamilton) could have done more to avoid a jury verdict that he siphoned money from Magnesium Corp. of America and used it (in part) to build a mansion in the Hamptons. This Reed Smith Partner Knows All About Yodeling, Especially for Young Stars All I can say is, I hope Edward Shapiro lists “yodeling expert” on his resume.