       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            LIQWD, INC., OLAPLEX LLC,
                Plaintiffs-Appellants

                           v.

  L’ORÉAL USA, INC., L’ORÉAL USA PRODUCTS,
    INC., L’ORÉAL USA S/D, INC., REDKEN 5TH
       AVENUE NYC, L.L.C., L’ORÉAL S.A.,
                Defendants-Appellees
               ______________________

                      2017-2295
                ______________________

    Appeal from the United States District Court for the
District of Delaware in No. 1:17-cv-00014-SLR, Judge Sue
L. Robinson.
                 ______________________

               Decided: January 16, 2018
                ______________________

    SANFORD IAN WEISBURST, Quinn Emanuel Urquhart &
Sullivan, LLP, New York, NY, argued for plaintiffs-
appellants.   Also represented by MATTHEW KEMP
BLACKBURN, MICHELLE ANN CLARK, San Francisco, CA;
JOSEPH M. PAUNOVICH, Los Angeles, CA.

   NAVEEN MODI, Paul Hastings LLP, Washington, DC,
argued for defendants-appellees. Also represented by
2                             LIQWD, INC.   v. L’ORÉAL USA, INC.



STEPHEN BLAKE KINNAIRD, JOSEPH PALYS,                  DANIEL
ZEILBERGER.
             ______________________

    Before DYK, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
    U.S. Patent No. 9,498,419 describes and claims a
method of bleaching hair by applying to the hair a mix-
ture created by combining (a) a bleaching formulation
with (b) a second formulation containing an active agent
that reduces or repairs damage to the keratin proteins of
the hair—damage that can result from bleaching, perm-
ing, or other hair-treating processes. The patent lists
various compounds that can serve as the active agent,
including maleic acid. The claims of the ’419 patent are
limited to maleic acid (or its salts) as the active ingredient
and further require that “the mixture does not contain a
hair coloring agent.” ’419 Patent, col. 26, lines 4–5.
    This case was filed by Liqwd, Inc., as the assignee,
and Olaplex LLC as an exclusive licensee, of the ’419
patent. We refer to the two plaintiffs collectively as
“Olaplex.” According to Olaplex, in 2014 it introduced
into the market “an entirely new hair care product cate-
gory”—“bond builder product[s].”      Appellants’ Br. 7.
Olaplex’s product uses bis-aminopropyl diglycol dimaleate
(“dimaleate”) as the active agent. Id. Olaplex has a
number of patents on hair treatments, and at least two—
U.S. Patent No. 9,095,518 (issued Aug. 4, 2015) and U.S.
Patent No. 9,713,583 (issued July 25, 2017)—include
among certain of their claims references to the chemical
structure for dimaleate shown in Olaplex’s complaint.
J.A. 1938. But it is undisputed here that dimaleate does
not come within the ’419 patent claims.
    L’Oréal USA, Inc., sells products that compete directly
with Olaplex in the bond-builder hair-care market.
Olaplex brought the present suit against L’Oréal in
LIQWD, INC.   v. L’ORÉAL USA, INC.                        3



January 2017. Olaplex alleged that L’Oréal directly
infringed and induced infringement of the ’419 patent by
its use and by its sale with instructions for use (including
literature, in-person training sessions, and training
videos) of three L’Oréal products—Matrix Bond Ultim8
Step 1 Amplifier, Redken pH–Bonder #1 Bond Protecting
Additive, and L’Oréal Professionnel Smartbond Step 1
Additive. Liqwd, Inc. v. L’Oréal USA, Inc., No. 17-cv-14-
SLR, 2017 WL 2881351, at *2 (D. Del. July 6, 2017)
(District Court Opinion). Olaplex alleged, and L’Oréal
does not dispute for purposes of this appeal, that the
accused L’Oréal products include maleic acid.
    Olaplex moved for a preliminary injunction, and in
July 2017, the district court denied the motion. The
court’s dispositive basis for denying the motion was its
construction of the claim requirement that the mixture
not contain a “hair coloring agent.” Because the adopted
construction excluded L’Oréal’s products, the court con-
cluded, Olaplex had failed to show a likelihood of success
on the merits of its infringement claims and therefore a
preliminary injunction was inappropriate. Id. at *7.
    Olaplex timely appealed. We have jurisdiction under
28 U.S.C. § 1292(a)(1) and (c)(1). We now conclude that
the district court erred in its claim construction, and we
therefore vacate the denial of the preliminary injunction
and remand for further proceedings.
                                 I
    This court reviews the grant or denial of a prelimi-
nary injunction for an abuse of discretion. See Abbott
Labs. v. Sandoz, Inc., 544 F.3d 1341, 1345 (Fed. Cir.
2008). “An abuse of discretion may be established by
showing that the court made a clear error of judgment in
weighing relevant factors or exercised its discretion based
upon an error of law or clearly erroneous factual find-
ings.” Novo Nordisk of N. Am., Inc. v. Genentech, Inc., 77
F.3d 1364, 1367 (Fed. Cir. 1996). To obtain a preliminary
4                            LIQWD, INC.    v. L’ORÉAL USA, INC.



injunction in the district court, the movant must show
that (a) it is likely to succeed on the merits, (b) it would
suffer irreparable harm in the absence of the preliminary
injunction, (c) the balance of equities favors the movant,
and (d) the injunction is in the public interest. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see,
e.g., Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d
1372, 1375–76 (Fed. Cir. 2009). If that “court’s decision to
grant or deny a preliminary injunction hinges on ques-
tions of law, this court’s review is de novo.” Wind Tower
Trade Coal. v. United States, 741 F.3d 89, 95 (Fed. Cir.
2014) (internal quotation marks omitted).
                             A
    The principal dispute concerns the proper construc-
tion of the term “hair coloring agent.” Claim 1 of the ’419
patent, the only independent claim, reads as follows:
    A method for bleaching hair comprising:
    (a) mixing a formulation comprising an active
    agent with a bleaching formulation, wherein the
    active agent has the formula:




    or salts thereof; and
    (b) applying the mixture to the hair;
        wherein the active agent in the mixture is
        at a concentration ranging from about
        0.1% by weight to about 50% by weight;
        and
        wherein the mixture does not contain a
        hair coloring agent.
LIQWD, INC.   v. L’ORÉAL USA, INC.                          5



’419 patent, col. 25, line 42 through col. 26, line 5.
    In the district court, Olaplex argued that “hair color-
ing agent” should be construed to mean “a colorant or
pigment that is customarily used in hair care products,
which changes the color or tone of the hair it is applied to
based on visual inspection.” District Court Opinion, 2017
WL 2881351, *2. Olaplex based that construction in part
on its express statement to that effect in the prosecution
history, which Olaplex argued excluded formulations in
which the “concentration [of dye, etc.,] is so diluted that it
does not actually color the hair.” Id. at *3.
    The district court’s rejection of that construction was
its main basis for finding no likelihood of success on the
merits. The court reasoned that such a construction was
inconsistent with the ’419 patent’s specification because
no other “agents” in the patent were defined in terms of
their results, as determined by a visual inspection after
performance of the method. Id. at *3–4. Rather, the
court concluded that “hair coloring agent” is properly
construed to encompass a composition that is sometimes
used at high concentrations to color hair—even if in a
particular instance it is present in such low concentra-
tions that it does not color hair. Id. at *3. That construc-
tion likely excluded the accused L’Oréal products, the
court concluded, because they contain dyes that are used
in other products (in the hair-coloring industry) in high
concentrations to color hair, even though they are present
in the accused products at such low concentrations that
they do not color hair (they are used just to color the
product itself). Id. at *3, 6.
    We review the district court’s claim construction here
de novo, as it relies only on intrinsic evidence. Teva
Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 840–42
(2015). We reject the district court’s construction. The
claims readily permit, and the prosecution history clearly
requires, a construction of (the claim-forbidden) “hair
6                            LIQWD, INC.   v. L’ORÉAL USA, INC.



coloring agent” as referring to a customary hair-coloring
composition that is present in the mixture in an amount
that, when the mixture is applied to hair, results in hair
coloring, judged in the usual way—by visual inspection.
     The claim language, “hair coloring agent,” lends itself
to this understanding. In one ordinary meaning, for a
substance to be an “agent,” that substance—what it is,
how much of it is present—must cause a specific result,
not merely be capable of doing so if greatly increased in
quantity. Here, the specific result is specified: “hair-
coloring.” Context is central in claim construction, see,
e.g., Atlas IP, LLC v. Medtronic, Inc., 809 F.3d 599, 608
(Fed. Cir. 2015); Phillips v. AWH Corp., 415 F.3d 1303,
1321 (Fed. Cir. 2005) (en banc), and here the method
claims’ focus on producing results suggests a focus on
whether “hair coloring” results from the mixture actually
applied to hair.      Cf. Cox Commc’ns, Inc. v. Sprint
Commc’n Co. LP, 838 F.3d 1224, 1232 (Fed. Cir. 2016)
(“All of the asserted claims are method claims, so it makes
sense to define the inventive method as a series of func-
tions.”). It is beyond dispute that not only the chemical
identity of molecules in the mixture, but the quantity of
such molecules, matters to whether the mixture contains
a constituent that in fact produces the result of hair
coloring. Accordingly, it is one natural interpretation of
the claim language, in context, to focus on what is actual-
ly present in the mixture, considering both chemical
identity and quantity. In short, it is natural to say that a
particular mixture “does not contain a hair-coloring
agent,” despite the presence of certain identified mole-
cules that if greatly increased in number could change
hair color, if there are not enough of those molecules to
actually change hair color.
    We need not go further, however, and draw a firm
conclusion about the words of the claim standing alone.
This is a case in which the prosecution history speaks
LIQWD, INC.   v. L’ORÉAL USA, INC.                          7



clearly. The prosecution history confirms the above
interpretation and adds precision.
     Olaplex added the phrase at issue by amending
claim 1 of the ’419 patent during prosecution. As an
initial matter, Olaplex had added the exclusion of a
“coloring agent” to claim 1 as a preliminary amendment
after the parent application of the ’419 patent was reject-
ed in light of prior art that used maleic acid itself in hair-
dyeing products. At that point, the claim stated that it
did not contain a “coloring agent.” Then Olaplex further
amended the claim to contain the current language.
Olaplex explained:
    Claim 1 was further amended to specify the mix-
    ture does not contain a hair coloring agent. The
    term “hair coloring agent” refers to a colorant or
    pigment that is customarily used in hair care
    products, which changes the color or tone of the
    hair it is applied to based on visual inspection.
J.A. 2325 (emphasis added). Olaplex immediately added:
“This is in contrast to common agents that may be used to
whiten or color a hair care product, but do not change the
color or tone of hair when the hair care formulation is
applied to hair based on visual inspection.” Id. (emphasis
added).
     This amendment supplies a definition: it says what
“[t]he term ‘hair coloring agent’ refers to.” Id. That
definition focuses on results: it requires that the colorant
be one that “changes the color or tone of the hair it is
applied to,” not merely that it could do so (if greatly
increased in concentration). It identifies how the change
is to be determined: by “visual inspection.” And it clearly
distinguishes a colorant used to change the color of only
the “hair care product” from one used to change the color
of the hair to which the product is applied. We find
Olaplex’s explanation in introducing the claim language
to be clear and decisive. See, e.g., Sunovion Pharms., Inc.
8                               LIQWD, INC.   v. L’ORÉAL USA, INC.



v. Teva Pharms. USA, Inc., 731 F.3d 1271, 1276–77 (Fed.
Cir. 2013).
     Amendments and statements made during prosecu-
tion, which come after the filing of the application, may of
course modify what claim-construction lessons might be
drawn from the earlier-filed specification in the absence of
such prosecution history. But here we see no inconsisten-
cy regardless. The specification identifies “hair coloring
agents” separately from the more inclusive term “dyes.”
See, e.g., ’419 patent, col. 11, lines 20–33. That distinction
fits the understanding that the former must actually color
hair, while the latter may or may not. In addition, alt-
hough the specification describes some agents, like “active
agent[s],” in terms of specific formulations and concentra-
tions (see, e.g., id., col. 7, line 26 through col. 11, line 18),
the specification sometimes describes others, like “bleach-
ing agent[s],” in terms of their function (see, e.g., id., col.
16, lines 54–55 (“bleaching formulation typically contains
a bleaching agent to lighten the hair”)) without specifical-
ly identifying concentrations. Thus, nothing in the speci-
fication contradicts the understanding of the claim phrase
“hair coloring agent” as referring to actually coloring hair
at whatever concentration is used in the product.
    In short, the district court relied on an incorrect claim
construction. The record indicates that the district court,
relying on a flawed claim construction, clearly erred in
finding no likelihood of success on infringement on that
basis. Accordingly, the denial of a preliminary injunction
must be vacated at least as to direct infringement.
                               B
    The denial of the preliminary injunction is vacated as
to indirect infringement as well. In rejecting Olaplex’s
allegation that L’Oréal indirectly infringed by inducing
direct infringement by its customers, specifically salon
technicians, the district court stated one reason in addi-
tion to the claim-construction rationale for rejecting the
LIQWD, INC.   v. L’ORÉAL USA, INC.                         9



direct-infringement allegation. It concluded that Olaplex
had “not satisfied the knowledge requirement” for induced
infringement because Olaplex failed to “demonstrate[]
that [L’Oréal] knew that [its] customers’ acts [in following
the products’ instructions for use] constitute infringe-
ment.” District Court Opinion, 2017 WL 2881351, at *4–5
(emphasis added). That conclusion is faulty.
     As evidenced by the district court’s use of the past
tense “knew,” the court considered only whether Olaplex
could prove past knowing inducement. But patent in-
fringement, including active inducement of infringement,
is often “an ongoing offense that can continue after litiga-
tion has commenced.” In re Seagate Tech., LLC, 497 F.3d
1360, 1374 (Fed. Cir. 2007) (en banc), abrogated on other
grounds by Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S.
Ct. 1923 (2016). And the point of a preliminary injunction
is to provide prospective relief by stopping the ongoing
conduct, whose wrongfulness depends on the facts at the
time it would occur unless enjoined. See LaserDynamics,
Inc. v. Quanta Comput., Inc., 694 F.3d 51, 60 (Fed. Cir.
2012) (date of filing of complaint was “the date that
[defendant] first became aware of the [patent at issue]
and was therefore first potentially liable for active in-
ducement of infringement”); see also Seagate, 497 F.3d at
1374 (even where claims of willful infringement focus on
pre-filing conduct, if that conduct is ongoing, “a patentee
can move for a preliminary injunction, which generally
provides an adequate remedy for combating post-filing
willful infringement”).
    Accordingly, to obtain a preliminary injunction,
Olaplex need not demonstrate that it is reasonably likely
to succeed in proving that L’Oréal knew, before this suit
began, that its instructions for use would induce in-
fringement. Rather, Olaplex must demonstrate, inter
alia, that it is reasonably likely to succeed in proving that
the instructions for use induce infringement and that
L’Oréal knows, at the time a preliminary injunction is to
10                           LIQWD, INC.   v. L’ORÉAL USA, INC.



take effect, that the instructions for use will induce in-
fringement. See Sanofi v. Watson Labs., Inc., 875 F.3d
636, 643 (Fed. Cir. 2017) (discussing the knowledge
requirement for induced infringement in the context of
drug labels). Our claim construction today makes it likely
that the knowledge element for inducement of infringe-
ment may be satisfied when, on remand, the district court
reconsiders entry of a preliminary injunction. 1
                             II
    The errors we have identified regarding claim con-
struction and infringement require a vacatur of the denial
of the preliminary injunction and a remand for proceed-
ings consistent with this opinion. In view of the need for
a remand, we address other arguments made by L’Oreal.
    We note first that, other than the likelihood of success
on the merits, the only factor in the preliminary-
injunction analysis that the district court itself found to
weigh against Olaplex was that a preliminary injunction
would not be in the public interest. District Court Opin-
ion, 2017 WL 2881351, at *7. But the sole rationale given
by the district court for that determination was that “the
public interest is not served by protecting valid patents as
against noninfringing uses.” Id. That finding is entitled
to no weight, because it rests on the district court’s erro-
neous claim-construction and noninfringement analysis.
   The district court did not rest its denial of the re-
quested preliminary injunction on any of the other bases
advanced by L’Oréal for denying the injunction. Here, we
address such bases only in a limited way. We partially


     1  We note that the Supreme Court has held that a
belief regarding possible invalidity—discussed infra—
does not negate knowledge of infringement. Commil
USA, L.L.C. v. Cisco Sys., Inc., 135 S. Ct. 1920, 1928–31
(2015).
LIQWD, INC.   v. L’ORÉAL USA, INC.                        11



address two invalidity contentions made by L’Oréal: we
indicate that one of the contentions does not appear to
have the merit required to defeat a request for a prelimi-
nary injunction, while another may well have such merit
and demands full reconsideration on remand. We also
indicate why L’Oréal’s challenge to the district court’s
finding in Olaplex’s favor on the irreparable-harm and
balance-of-equities issues is unpersuasive. We remand
for further proceedings, on which developments since the
initial preliminary-injunction proceedings may have a
bearing.
                                 A
    It is the patent holder’s burden, when moving for a
preliminary injunction, to establish a likelihood of success
on the merits. Entegris, Inc. v. Pall Corp., 490 F.3d 1340,
1351 (Fed. Cir. 2007); Nat’l Steel Car, Ltd. v. Canadian
Pac. Ry., Ltd., 357 F.3d 1319, 1324–25 (Fed. Cir. 2004). If
the alleged infringer presents a “substantial question” of
invalidity, and the patent holder does not establish the
likely lack of merit of the invalidity contention, the pre-
liminary injunction should not issue. Entegris, 490 F.3d
at 1351; accord Genentech, Inc. v. Novo Nordisk A/S, 108
F.3d 1361, 1364 (Fed. Cir. 1997). The burden on the
challenger to show a substantial question of invalidity at
this stage is lower than what is required to prove invalidi-
ty at trial. Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
239 F.3d 1343, 1359 (Fed. Cir. 2001) (“In resisting a
preliminary injunction . . . one need not make out a case
of actual invalidity . . . . The showing of a substantial
question as to invalidity thus requires less proof than the
clear and convincing showing necessary to establish
invalidity itself.”).
                                 1
    The district court tentatively stated a possible invalid-
ity-based ground for finding that Olaplex was unlikely to
succeed on the merits. It observed that Olaplex’s pro-
12                            LIQWD, INC.   v. L’ORÉAL USA, INC.



posed construction requires a “visual inspection” to de-
termine whether a product infringes, rather than provid-
ing a “method, standard, or any other objective measure”
to determine when a substance was a hair-coloring agent.
District Court Opinion, 2017 WL 2881351, at *4. For that
reason, the court concluded, the claims if construed as
Olaplex proposed (and as we have done) would “most
likely” be indefinite. Id.
     We review a district court’s legal conclusion of indefi-
niteness de novo and the underlying factual findings for
clear error. Cox Commc’ns, 838 F.3d at 1228. To be
definite, the claims must “inform, with reasonable cer-
tainty, those skilled in the art about the scope of the
invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 134
S. Ct. 2120, 2124 (2014). On the record before us, we do
not think that L’Oréal has raised a “substantial question”
of indefiniteness.
    Our recent precedent establishes the incorrectness of
the district court’s rationale for thinking indefiniteness
likely. Indefiniteness does not necessarily follow from a
claim’s reliance on visual inspection with the human eye.
Sonix Tech. Co., Ltd. v. Publ’ns. Int’l., Ltd., 844 F.3d 1370,
1378 (Fed. Cir. 2017) (“The question whether something is
‘visually negligible’… involves what can be seen by the
normal human eye. This provides an objective baseline
through which to interpret the claims.”). In this case,
there is ample evidence in the record that the identified
persons of ordinary skill in the art of hair-care products
know how to use visual inspection to determine with
reasonable certainty whether a certain ingredient in a
product would actually alter the color of hair.
    As for the intrinsic evidence, many examples in the
’419 patent call for visual inspection. In particular, the
“Results” section of Example 7 reports that, “[u]pon visual
inspections, the second hair sample treated with the
active agent formulation showed little or no signs of
LIQWD, INC.   v. L’ORÉAL USA, INC.                          13



breakage,” while “the first hair sample treated with
hydrogen peroxide showed significant breakage.” ’491
patent, col. 25, lines 4–7; see also, e.g., id., col. 22, lines
61–64 (Example 3 results: “A noticeable difference in hair
quality,” as sample treated according to claimed method
was “less frizzy, appeared hydrated, with more shine than
the control”); id., col. 23, line 65 through col. 24, line 2
(Example 4 results: “healthy appearance” of hair treated
according to claimed method as compared to “frayed with
an unhealthy appearance” of control). Regarding visual
inspection of color, Example 1 notes the “better color
retention” in the hair sample treated according to the
claimed method than in the control. Id., col. 21, lines 44–
48; see also, e.g., id., col. 22, lines 15–19 (Example 2
results: “active agent formulation displayed a color closer
in intensity to the hair sample prior to the first washing,
compared to the hair treated with hydrogen peroxide”).
    Extrinsic evidence also rebuts L’Oréal’s contention
that the claims are indefinite. The internal testing re-
sults submitted by L’Oréal show its own application of the
very same rubric—to determine whether or not the level
of coloring in L’Oréal’s products would change the color of
hair, L’Oréal’s scientists were conducting tests based on
visual inspection. J.A. 5432; J.A. 6767 (“Conclusion: . . .
there is no significant visible difference”) (emphasis
added). Such evidence of a challenger’s own ability to
apply a term without unreasonable uncertainty counts
against an indefiniteness contention. See BASF Corp. v.
Johnson Matthey Inc., 875 F.3d 1360, 1368 (Fed. Cir.
2017); Sonix, 844 F.3d at 1379–80. L’Oréal observes that
the court in Sonix relied on detailed examples given in the
patent’s specification, but the ’419 specification in this
case itself includes examples that require visual inspec-
tion of the hair and its color. In any event, the evidence
cited above that a person of ordinary skill in the art would
know how to visually inspect hair for color change is
14                           LIQWD, INC.   v. L’ORÉAL USA, INC.



sufficient to show a likelihood of success in defending
against an indefiniteness challenge.
    Finally, L’Oréal points to expert testimony that dam-
aged hair more readily takes up dye than undamaged
hair, and therefore that a specific concentration of a
coloring agent may color a damaged hair sample but not
an undamaged hair sample, rendering the claims indefi-
nite. But L’Oréal presents no evidence that the dye-
uptake properties of damaged and undamaged hair are so
disparate as to prevent reasonable certainty among
persons of skill as to whether hair, damaged or undam-
aged, will be colored by a mixture containing a particular
concentration of a coloring agent. L’Oréal itself tested its
products on gray and on permed (damaged) hair to con-
firm that its products would not color the hair. See, e.g.,
J.A. 5431. “[T]he certainty which the law requires in
patents is not greater than is reasonable, having regard to
their subject-matter.” Nautilus, 134 S. Ct. at 2129.
L’Oréal has not shown a substantial question under that
standard.
                             2
    L’Oréal argued before the district court that the ’419
patent claims are invalid for obviousness in light of two
references: Ogawa and Kim. District Court Opinion, 2017
WL 2881351, at *5–6. 2 The district court rejected the



     2  L’Oréal also argued anticipation based on Ogawa,
but the district court rejected the argument at the present
stage of the case, stating, e.g., that it had “not explained
how Ogawa applies in light of either of [Olaplex’s] claim
constructions.” District Court Opinion, 2017 WL 2881351,
at *5. L’Oréal argued as well that the patent failed to
name an inventor, but the district court rejected the
argument at this stage, stating, e.g., that L’Oréal had “not
demonstrated that [Olaplex] could not correct inventor-
LIQWD, INC.   v. L’ORÉAL USA, INC.                      15



contention. It stated: “At this stage in the proceedings,
the court is not inclined to second guess the assessment of
the examiner, who had the Ogawa and Kim references
before her, and who we assume had some expertise in
interpreting the references and some familiarity with the
level of skill in the art.” Id. at *6 (internal quotation
marks omitted). The court added that L’Oréal had “not
shown that [it] could carry [its] burden to prove obvious-
ness by clear and convincing evidence.” Id.
    We do not read this explanation as giving blanket def-
erence to the PTO, which would be impermissible, see
Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prods.
Grp., LLC, No. 2016-2197, slip op. at 9–10 (Fed. Cir. Jan.
12, 2018). But the district court set forth no independent
discussion of the merits of the obviousness challenge. We
think that such a discussion is needed.
    After the district court entered its decision denying a
preliminary injunction, the Patent Trial and Appeal
Board instituted a Post-Grant Review of claims 1–8 and
10 of the ’419 patent, concluding that those claims are
more likely than not unpatentable for obviousness over
the combination of Ogawa and two other references—
German Patent Application Publication No. 1,220,969
(Berkemer) and Korean Patent Application Publication
No. 10-2006-0059564 (KR ’564). L’Oréal USA, Inc. v.
Liqwd, Inc., PGR2017-00012, 2017 WL 3085428, at *4–8.




ship if a trier of fact were to determine” that an inventor
was unnamed. Id. at *6. The district court did not ad-
dress L’Oréal’s contention that Olaplex does not qualify as
a “patentee” entitled to sue for patent infringement under
35 U.S.C. § 281—an issue to which the parties each
devote all of a paragraph in their briefs on appeal. We do
not further discuss any of these three issues, which may
be further explored on remand.
16                           LIQWD, INC.   v. L’ORÉAL USA, INC.



(P.T.A.B. July 19, 2017). 3 In particular, the Board found
that Ogawa disclosed all of the limitations of claim 1 of
the ’419 patent except the selection of maleic acid from
among various potential agents and that Berkemer pro-
vided motivation for a person of skill in the art to select
maleic acid from the other potential options. Id. at *5–6.
At the same time, the Board noted that there were sub-
stantial unresolved questions related to secondary consid-
erations, and so it stressed that its conclusions were being
drawn “on the present record and for the purposes of the
present decision.” Id. at *8.
    We rely on the Board’s opinion here for a limited pur-
pose. Having carefully examined the obviousness issue
presented to us in this appeal, we think that the content
of the Board’s discussion shows the need for the district
court, in the case before us, to present a fuller discussion
of the obviousness evidence and arguments than the
opinion under review here contains. We do not defer to
the Board’s preliminary institution decision or assert
agreement with all of the Board’s analysis. We merely
find it sufficient to indicate why there may well be a
“substantial question” of invalidity here, necessitating
more analysis in this case than we now have.




     3  The Board also drew the same conclusion regard-
ing another combination of references. Id. at *8–11. The
Board found no sufficient basis to institute a review of
unpatentability for anticipation by Ogawa. Id. at *3–4.
    The same day that the Board instituted a review of
unpatentability for obviousness, it separately declined to
institute a review of unpatentability for indefiniteness,
lack of written-description support, and lack of enable-
ment. L’Oréal USA, Inc. v. Liqwd, Inc., PGR2017-00011,
2017 WL 3085427 (P.T.A.B. July 19, 2017).
LIQWD, INC.   v. L’ORÉAL USA, INC.                      17



                                 B
    L’Oréal challenges the district court’s finding that
Olaplex would suffer irreparable harm in the absence of a
preliminary injunction. District Court Opinion, 2017 WL
2881351, at *6. We see no clear error of fact (or legal
error) in the court’s finding. See New England Braiding
Co., Inc. v. A.W. Chesteron Co., 970 F.2d 878, 882 (Fed.
Cir. 1992) (preliminary-injunction factors reviewed for
clear error). But we do not preclude reconsideration of
the issue when the case returns to the district court, by
which time the market will have changed since July 2017
in ways of potential relevance to the irreparable-harm
question. See Presidio Components, Inc. v. Am. Tech.
Ceramics Corp., 875 F.3d 1369, 1384 (Fed. Cir. 2017).
    L’Oréal argues in particular that the district court
erred in finding that the “bond-builder” market is a “two-
player national market.” Appellees’ Br. 55 (citing District
Court Opinion, 2017 WL 2881351, at *6). L’Oréal notes
the district court’s statements that the bond-builder
market is “new and growing” and that “other competitors
have appeared” since 2014, and it cites portions of the
record discussing hair-care products such as Colorphlex,
Eslabondexx, and B3 Brazilian Bond Builder. Appellees’
Br. 55–56 (citing, e.g., J.A. 3243–45). But the district
court considered those products and found them to fall
into the market category of “additives” or “conditioning
products” rather than “bond-builders.” District Court
Opinion, 2017 WL 2881351, at *6. The court credited the
testimony of Olaplex’s expert Dr. Nisha Mody, who stated
that only Olaplex and L’Oréal sold bond-builder products
in the national market, J.A. 483–84, over the testimony of
L’Oréal’s expert W. Todd Schoettlekotte, who opined that
the market included other products such as those men-
tioned above, J.A. 2911–12. Id. at *6 n.13. When the
court referred to “other competitors,” it was referring to
L’Oréal’s expert’s expanded “bond-builder/additive mar-
18                           LIQWD, INC.   v. L’ORÉAL USA, INC.



ket,” which the court determined was not the relevant
market for the assessment of irreparable harm. Id. at *6.
     We conclude that the district court did not err when it
determined that the bond-builder market is a “two-player
national market” and that Olaplex would likely suffer
irreparable harm from L’Oréal’s “direct competition in
[its] primary market.” Id.; see also Douglas Dynamics,
LLC v. Buyers Prods. Co., 717 F.3d 1336, 1345 (Fed. Cir.
2013) (“Where two companies are in competition against
one another, the patentee suffers the harm—often irrepa-
rable—of being forced to compete against products that
incorporate and infringe its own patented inventions.”);
Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142,
1151 (Fed. Cir. 2011) (“the existence of a two-player
market may well serve as a substantial ground for grant-
ing an injunction”). We need not here consider issues that
might arise in a situation in which more firms are in the
market but their products are themselves infringing. It
suffices to say here that L’Oréal has not shown the dis-
trict court’s two-player-market finding to be clearly erro-
neous. Nor has it otherwise shown reversible error in the
irreparable-harm finding or in balancing the equities on
the present record. As noted, however, the irreparable-
injury issues may be reconsidered on remand, which could
lead to a change in the balancing of the equities.
    L’Oréal also argues that the district court erred by
concluding that the balance of the equities favored grant-
ing the injunction. But L’Oréal makes its argument
contingent on its irreparable-harm arguments, stating,
“the district court relied principally on the purported
harm to Olaplex, which itself is insufficient to warrant
injunctive relief.” Appellees’ Br. 56. Because we do not
find reversible error in the district court’s finding of
irreparable harm to Olaplex, this argument likewise fails.
LIQWD, INC.   v. L’ORÉAL USA, INC.                    19



                                III
    For the foregoing reasons we vacate the district
court’s denial of a preliminary injunction and remand for
further proceedings in accordance with this opinion.
    Costs awarded to appellants.
                VACATED AND REMANDED
