“Answering One Question NOT Asked,” Merck & JNJ End Up In L’Oreal Patent Suits


I don’t know whether to file this story under the law of “unintended consequences,” or “collateral damage” — but apparently, back when the three year-long sunscreen Lanham Act Battle Royale (between Neutrogena, a J&J brand, and Coppertone, a legacy Schering-Plough/Merck brand) was in high dungeon, an ex-Schering-Plough (now Merck) scientist, one Dr. Patricia Agin, submitted a sworn declaration, as part of Coppertone’s case. I believe she was also deposed by the Neutrogena lawyers.

In her rather effusive declaration (quoted at the top of page 4 of the complaint), she explained that the process for stabilizing Coppertone sunscreen in ultraviolet radiation conditions (i.e., out in the sun) “is not, and was never patented by, exclusive to, or invented by, or created by Neutrogena. . . .”

True enough. It actually turns out that L’Oreal owns that patent.

It is in year 16 of its life, and it is a process patent, but L’Oreal of Paris owns it. And L’Oreal’s patent lawyers allege that neither Coppertone, nor Neutrogena have a valid patent license from L’Oreal. Ouch. From the Bloomberg story — a bit, and here is the complaint at law (link is a 7 page PDF file):

. . . .L’Oreal sued Merck & Co., the maker of Coppertone, and Johnson & Johnson, which owns Neutrogena Corp., for patent infringement in federal court in Wilmington, Delaware, on January 27, 2012. . . .

In dispute are parents 5,576,354, issued in November 1996, and 5,587,150, issued in December 1996. Both cover compounds used to block the skin’s exposure to ultraviolet-light damage. . . .

The “acts of infringement have caused and will continue to cause damage to L’Oreal,” the Paris-based company said in court papers. L’Oreal claims it has patented a mixture of compounds that help stabilize its sunscreen. That mixture appears in so- called avobenzone sunscreens and uses the compound octocrylene, according to court papers.

Last year, L’Oreal earned 2.51 billion euros ($3.29 billion) on revenue of 20.3 billion euros, according to information compiled by Bloomberg. . . .

It may well turn out to be that both J&J and Merck have developed processes to stabilize their respective sunscreens with octocrylene, in ultraviolet conditions that do not in any way read on, or implicate the L’Oreal patents, but it is clear that the labels of each of their sunscreens list octocrylene as an ingredient.

And so — let’s call this one the The Son of Sunscreen Battle Royale“! Should be entertaining.

We will keep you slathered in thick white gunk on this, no doubt.

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