The legal saga between L’Oreal USA Inc. and Olaplex LLC (“Olaplex”) over a hair-coloring product continues. In August 2019, a Delaware federal jury found that L’Oreal misappropriated Olaplex’s trade secrets, willfully infringed two Olaplex patents, and breached a nondisclosure agreement. The jury awarded Olaplex $22.3 million for willful infringement of trade secrets, $22.3 million for breach of contract, and $47 million for patent infringement. On March 24, 2020, the court entered a $66.2 million final judgment including attorneys’ fees and prejudgment interest.
Earlier this month, L’Oreal appealed and asked the Federal Circuit to reverse this judgment based on purported errors by the district court in (1) improperly excluding two witnesses and (2) improperly granting summary judgment on patent infringement. First, L’Oreal argued that one of its excluded witnesses was critical to its trade secret misappropriation defense. Olaplex claimed that its CEO gave Delphine Allard a notebook containing Olaplex’s unpublished patent application, and that L’Oreal must have used it to develop the accused products. Despite the fact that Allard was willing to testify that she never received the unpublished patent application, the court sanctioned L’Oreal for not making her available for a deposition during discovery. L’Oreal argued that it should have been granted judgment as a matter of law, but this exclusion warrants reversal and a new trial. Second, L’Oreal argued that the patent infringement claims should have been tried to the jury and summary judgment was improper because there were factual issues in dispute.
This saga appears to be far from over.