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P&G teeth whitening lawsuit setback as trial is delayed

By Andrew McDougall+

07-Jul-2014
Last updated the 07-Jul-2014 at 16:16 GMT

Procter and Gamble has suffered a setback in its lawsuit against New Jersey-based Clio over its teeth whiteners after a US District Court judge delayed the trial indefinitely.

Judge Timothy S. Black of the U.S. District Court Southern District of Ohio postponed the trial date, scheduled to open August 4. 

It is a big setback for the consumer goods giant who claims that Clio, who is a smaller rival in the teeth whitening market, had infringed on patents P&G has for whitening strips.

Many believe that this case, which has drawn a lot of national attention, will have a big effect on the $386.6 million teeth whitening industry.

Damaging

Executives from the smaller firm in question, have expressed support for the judge's decision and said they were also confident in the strength of the case that the company has before the PTAB, in which Clio is challenging the validity of P&G's patents.

Earlier this year, the PTAB ruled that there is a "reasonable likelihood" that Clio would prevail in its case before PTAB, and Clio’s vice president Peter Cho, believes that P&G’s claim has been damaging for the market as a whole.

"We have said all along that P&G's bullying tactics are not only bad for business, but they are rooted in baseless claims," he says.

"By attacking a small company like Clio, which controls less than 3% of the market, P&G opened up a Pandora's Box of outcomes, including the invalidation of patents it claims to own. While anticipated all along, it is encouraging to see P&G's strategy boomerang.''

Dominating product

Whitestrips, which are sold under P&G’s Crest brand, first sold in 2000 and were “the largest product introduction in the history of Procter & Gamble,” the lead inventor, Paul Sagel, told a federal judge during a November hearing on the Clio case.

They use a hydrogen peroxide-coated film that molds itself to the teeth and can be removed in as little as an hour, allowing consumers to carry out a procedure at home that they would have had to go to a dentist for.

P&G’s product now command 67% of the teeth-whitening market in North America, according to Euromonitor, partly because the company has aggressively enforced its patents on the product, which has seen J&J and Be Well Marketing both reach settlements in the past to exit the market.

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