By Dennis Crouch
Two interesting consumer products lawsuits filed this week:
- Gillette Company v. BK Gifts, Docket No. 13-cv-02241 (N.D. Ohio); and
- Procter & Gamble Company v. Conopco, Inc. and Unilever United States, Inc., Docket No., 13-cv-00732 (S.D. Ohio).
Gillette sued BK Gifts for selling generic knock-off versions of the popular Gillette MACH3 and Proglide razor blades. The defendant has not been selling these as counterfeit goods but rather as goods offering the same functionality at a substantially lower price. Their website stated: "STOP OVERPAYING FOR RAZOR BLADES . . . If you like Gillette® MACH3®, MACH3® SENSITIVE or M3 Power you'll love our Classic Razor Blades." Now, the website states "WE No Longer Sell Razors Due to a Pending Lawsuit With Gillette."
In the lawsuit, Gillette does not suggest that it invented any new technology or useful good but rather asserted six design patents that cover the ornamental design of its razors. US Design Patent Nos. D415315, D422751, D430023, D440874, D531518, and D575454. Of interest, the D'315 should expire on October 12, 2013 and several others will expire in 2014.
P&G's lawsuit against Unilever involves three shampoo concoctions that are useful for dandruff: US Patent Nos. 6,451,300, 6,649,155, and 6,974,569. Although the patent makes some claims regarding the effective treatment of dandruff, I don't see any file history information where the PTO asked for any proof to back-up those claims. An interesting aspect of the dispute is that P&G and Unilever have an ongoing contractual process for resolving patent disputes that involve a tiered approach that begins with good faith negotiations, then moves to mediation, and finally to non-binding arbitration. If that process fails, then the case can file in court. The complaint in this case indicates that the process has been successful in that the parties have settled five different patent disputes over the past five years without having to file a civil action. However, P&G alleges that Unilever has refused to arbitrate the case and instead filed inter partes review petitions with the PTO and filed a declaratory judgment action in the UK challenging the patent there. See IPR Nos. 2013-0505, 2013-0509, 2013-0510.
The twin patent-term-adjustment cases of Exelixis, Inc. v. Rea and Novartis AG v. Rea are now scheduled for oral arguments at the PTO.