The Razor Blade War

On or about December 17, 2015, the Gillette Company, which is wholly owned by consumer products giant, Procter and Gamble, filed a complaint in the United States District Court for the State of Delaware against the Dollar Shave Club, Inc. for patent infringement.  In particular, Gillette seeks to enjoin the manufacture, use, sale and importation of any razor blades or shaving razors that would infringe one or more claims of U.S. Patent No. 6,684613.

This is a big deal if only because of the money involved and the impact it could have on the sales and profits of P&G.  Razors and blades, used by both men and women, are a $3 billion global market.  Dollar Shave Club has been in business since 2012 and is believed to have already captured 8% of that global market.  The suit by Gillette threatens the very existence of Dollar Shave Club, at least until the expiration of the ‘513 patent in 2020.

It is safe to assume that Dollar Shave Club has been aware of the ‘513 patent for some time, and that they believe their products do not infringe the claims of the Gillette patent, or that the claims of the Gillette patent are invalid and cannot be infringed, or infringed only with impunity.

We can be reasonably confident that Gillette has also done its homework and believes just as adamantly that the claims of the ‘513 patent are valid and that the making, using, selling, importing of blades and/or razors by the Dollar Shave Club does, in fact, infringe valid patent claims.

As part of that homework, we can be certain that Gillette has purchased Dollar Club blades, subjected them to objective scrutiny and concluded that the Dollar Shave Club blades/razors infringe at least one, if not several, of the claims of the ‘513 patent.  

Claim 1 of the Gillette patent is the broadest of the patent’s 38 claims and the easiest to describe.  Essentially, that claim encompasses a razor blade 10 comprising a stainless steel blade 12 with a cutting edge defined by a sharpened point and adjacent facets 22; a hard coating layer 16 made of an amorphous carbon-containing material; an overcoat layer 18 of a chromium-containing material; and, an outer layer 20 of polytetrafluoroethylene, which is a lot like Teflon.  Interlayer 14 is apparently optional and is used to enhance the bonding of the hard coating layer to the steel blade.  It contains another chromium-containing or niobium-containing material and is most likely present in a preferred embodiment of the razor blade.

Capture.PNGAs mentioned, supra, Shave Dollar Club has two arguments or defenses against the Gillette allegations of infringement.  They can argue that their blades do not have the coatings delineated in Gillette’s claims, or they can argue that the Gillette claims are invalid.  Let us concede that with today’s forensic technology, Gillette will have no difficulty demonstrating that the Dollar Shave Club blades have a coating that is arguably identical or essentially the same as the coatings described in claim 1.

Dollar Shave Club is more likely to allege and argue that the claims of the ‘517 patent are invalid, i.e., they encompass subject matter that was not patentable at the time the Gillette patent application was filed, probably because it lacked inventiveness.  By lacking inventiveness Dollar Shave Club would mean that the coatings were not new or novel or were obvious iterations of what was known in the prior art at the time Gillette filed the application.

This analysis is largely Patent Law 101, and I’m not alone in making this conjecture.  However, I found one commentator who speculated that the prior art, which may invalidate the ‘513 patent, is owned by none other than Gillette and was “amazingly” disclosed in previously issued patents or published applications.  I don’t think that there is anything “amazing” about it.  If I were looking for prior art to anticipate or obviate a Gillette patent claiming blades or razors, I’d focus almost exclusively on Gillette patents claiming blades and razors.  And here is why:  

The United States Patent Office (as well as every other patent office in the world) exists largely for the use and benefit of large corporations. Filing applications and issuing patents is an expensive proposition, but the expense is less of a deterrence to large corporations than to small companies and individuals.  And, while patent budgets for large corporations are substantial, they are negligible when compared to the sales and profits of the large corporations.  With these large but affordable budgets they hire large numbers of patent attorneys and patent agents who have nothing else to do but prepare and file patent applications on every notion and aspect of any and everything promulgated by an employee or his manager who is eager to provide evidence of his productivity and worth to the company.

So, given the resources of our large corporations, viz., adequate budgets and highly motivated employees, it is easy to understand how Gillette could have produced a significant number of published applications and issued patents on all aspects of razors and blades, and it is not at all unlikely that at least one of those publications could have foreshadowed some of the inventiveness claimed in the ‘513 patent.

And, what has taken Gillette so long to file suit for infringement?  It is not as if Gillette was unaware of Shave Club’s existence.  Shave Club has been eating away at their market share for almost four years.  Patent infringement suits are seldom filed precipitously.  The claims defining the invention and the prior art limiting the invention are scrutinized fastidiously.  To say the review is time consuming is an understatement, but three years?  I suspect there is something in the file, or even more problematic, something not in the file, that has contributed to the delay in filing suit.  And, if Gillette was hesitant, and perhaps reluctant to bring suit, can we expect the jury, the final trier of fact, to have an easier time of it?  Needless to say, it will be interesting to watch this play out.

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