Re: AHA Lotions

June 24, 2004

Angie made another inference from your statement and I told her that

inference had an unfair assumption in it. The assumption

is " underhandedly using proprietary formulary

ingredients and pushing it under the rug " is the only alternative to

paying royalities. This is not true because as you said, you can use

other ingredients like Multifruit.

I just don't want people on this list to think that AHA/BHA is an

evil thing because I feel there seems to be an anti-any-acid theme in

lots of postings I've seen from you and others. Now I understand you

don't use it only because you and your clients don't want to deal

with patent. I want people to clearly understand that's NOT because

AHA/BHA are bad. Dealing with patent is hard, but NOT unethical.

That's all. I never said anything about patent violation.

Pam

---

I think this is a reading comprehension issue, not an argumentative one....

I correctly interpreted Maurice's post and the subsequent " inferences " were

not made by the original author or myself.

I reinterpreted Maurice's post when you appeared to misunderstand his

meaning. He confirmed that my interpretation was correct. Your

interpretation is still off the mark, he never said anyone paying royalties

is unethical. What he said is that it IS ethical to pay royalties, however

his clients do not wish to pay royalties for a proprietary formulation, so

they are seeking alternative ingredients.

Much like you might, if you found out it would add several thousand dollars

onto your bottom line to use Special Banana Juice in your lotion because

SuzyCreamcheese has a patent on that... it might be preferable to you to

seek alternate sourcing for your lotion and find an ingredient that is

similar in properties and unencumbered by patent issues. Seeking alternative

ingredients would not make you unethical, it would make you a smart shopper.

This is what Maurice was trying to convey in his original post. Nothing

personal was implied or intended, I am sure.

Angie

June 24, 2004

Ugh, you guys are gonna make me break out my books and notes again... OK.

Patents: Art I, §8, clause 8 of the US Constitution grants patent power

(big stuff)... " the Congress shall have the power... to promote the

progress of science and useful arts, by securing for limited times to

authors and inventors the exclusive right to their respective writings

and discoveries. " After 20 years, the new development becomes public

domain.

In order to be granted a patent, the patentee must be prepared to

demonstrate that he has developed a new, useful, and nonobvious process,

machine, manufacture or composition of matter (35 USCA §101.)

Rights granted: patentee has exclusive right to make, use or sell the

invention to the absolute exclusion of others for 20 years from the date

of the original application (35 USCA §154.) (Can be extended up to 5

years if delay caused by patent office.)

***

AHAs, etc.

OK, it may well be that the source ingredients are patented, but the

resulting formulations? They must past the test above of

non-obviousness. If I, a relative neophyte can independently come up

with a similar formulation totally independently, then the invention

fails for obviousness. It is generally difficult to gain patents for

recipes because of the relative ease in which someone knowledgeable in

the field can independently develop a similar product.

I must assume that companies producing patented ingredients have

legitimately gained the rights of production through some form of

licensing. When they then sell those ingredients to the open market, our

independent product development is not necessarily limited by patent

law... because of our independent development.

In conclusion, based only upon simple patent law, I would not conclude

that independent product development using patented ingredients violates

patent law per se. So anyone here who purchases ingredients from

legitimate suppliers, and then independently develops products, should

be able to sell those products without fear of violating existing

patents. You must be very careful however with any claims you might

make of similarity to 'big name products,' as this might be a violation

of trademark law... (urgh) which protects consumers from product

confusion. If you compare yourself to product X, you must be prepared to

defend this with evidence.

I guess I should cough up the $$$ to get fully licensed so what I say

can have some weight huh?

Gillian Fryer, JD. (soon to be Esq. but soap is my income)

>Message: 24

> Date: Thu, 24 Jun 2004 18:00:34 -0500

>

>Subject: RE: Re: AHA Lotions

>

>I think this is a reading comprehension issue, not an argumentative one....

>I correctly interpreted Maurice's post and the subsequent " inferences " were

>not made by the original author or myself.

>I reinterpreted Maurice's post when you appeared to misunderstand his

>meaning. He confirmed that my interpretation was correct. Your

>interpretation is still off the mark, he never said anyone paying royalties

>is unethical. What he said is that it IS ethical to pay royalties, however

>his clients do not wish to pay royalties for a proprietary formulation, so

>they are seeking alternative ingredients.

>Much like you might, if you found out it would add several thousand dollars

>onto your bottom line to use Special Banana Juice in your lotion because

>SuzyCreamcheese has a patent on that... it might be preferable to you to

>seek alternate sourcing for your lotion and find an ingredient that is

>similar in properties and unencumbered by patent issues. Seeking alternative

>ingredients would not make you unethical, it would make you a smart shopper.

>This is what Maurice was trying to convey in his original post. Nothing

>personal was implied or intended, I am sure.

>Angie

>

June 28, 2004

>Before you get to involve, you may want to check the patent

>situation. Go to the US patent database

>http://patft.uspto.gov/netahtml/search-bool.html

>

>and do a search for inventor = Van ; Eugene J. and/or Yu; Ruey J.

Here's some additional information on this subject:

Federal Court Upholds NeoStrata Subsidiarys Patent Rights.

http://www.neostrata.com/a_aus/aus_prd.asp?pr=35

NeoStrata Case for Patent Infringement Won Against ICN/Valeant and

Validity of Key Patents Upheld by a Jury in the U.S. District Court in

Delaware.

PRINCETON, N.J. - November 25, 2003 - TriStrata Technology, Inc.

( " TTI " ) won its patent infringement suit against Valeant

Pharmaceuticals International, formerly ICN Pharmaceuticals, when the

jury in the United States District Court in Wilmington, DE found that

seven claims of the two patents at issue were willfully infringed. The

jury verdict of willful infringement allows for the damages to be

multiplied up to three times. In addition, TTI will ask the Court to

declare the case " exceptional " and thus make TTI eligible for an award

of attorneys' fees.

TTI also filed a motion for a permanent injunction with the Court today

which, if granted, will prohibit sales of infringing products,

including Valeant's Glyquin® product lines. The infringed patents cover

the use of alpha-hydroxyacids (AHAs) to enhance the therapeutic effect

of other substances. TTI still has suits pending against ICN relating

to another product line, as well as Kay® cosmetics, BeautiControl®

cosmetics and the companies responsible for the manufacture and sale of

the infomercial product called Natural Advantage.

TTI is a wholly owned subsidiary of NeoStrata Company, Inc., founded by

Ruey Yu, O.M.D., Ph.D. and Eugene Van , M.D., who are widely

recognized as pioneers in alpha-hydroxyacid skin care technology and

who are the inventors of more than 125 patents relating to

alpha-hydroxyacids and other skin care technology.

H. Wildnauer, Ph.D., president of TTI, remarked: " We are

delighted that the jury recognized the extensive contributions made by

Drs. Van and Yu by validating TTI's patents and stopping the

willful infringement by Valeant (ICN). TTI remains committed to the

vigorous enforcement of its intellectual property, such as in this

instance where Valeant (ICN) was selling infringing products without a

license. "

M. McGovern, principal of McGovern & Associates, worldwide

licensing counsel for TTI, stated, " TTI always prefers to achieve

business resolutions of its patent disputes as demonstrated by the

extensive and impressive list of licensees to date. However, if forced

to go to court, TTI has the resolve and the resources to go the

distance. "

TTI was represented by M. McGovern, Esq. and T. Foley, Esq.

of McGovern & Associates, Greenwich, CT; O. Warnecke, Esq. of

Mayer, Brown, Rowe and Maw of Chicago, IL; and Arthur Connolly, III,

Esq. of Connolly, Bove, Lodge & Hutz of Wilmington, DE.

About NeoStrata NeoStrata Company, Inc. is a research-based

dermatological company dedicated to the advancement of skin care and

dermatological treatments. It is the medical community's

internationally recognized leader in developing alpha-hydroxyacid

technology and formulations. NeoStrata Company markets products under

the brands NeoStrata®, Exuviance®, Exuviance Professional and

CoverBlend®. NeoStrata has been ranked 17th in NJBIZ's top 50

biotechnology firms in the state of NJ. For more information, visit

www.neostrata.com or call 1-.

Maurice

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Maurice O. Hevey

Convergent Cosmetics, Inc.

http://www.ConvergentCosmetics.com

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June 28, 2004