Gillette wins legal fight with Schick

Gillette Co. won an important legal skirmish yesterday when a federal appeals court gave it another chance to block rival Schick from selling a four-blade razor that the Boston shaving giant claims infringes on its patent for the popular Mach3 razor.

In its decision, the US Court of Appeals for the Federal Circuit in Washington gave a major boost to Gillette's legal argument when it said the technology behind the Boston company's patent was not limited to blades with three razors but could also encompass those razors with four or even five razors.

The ruling overturned a January 2004 decision in Boston by US District Judge Patti B. Saris denying Gillette's request to block Schick's Quattro sales. At the time Saris said Gillette appeared unlikely to win its infringement case because the patent refers to a razor setup involving just three blades.

With its patent lawsuit against Energizer Holdings Inc., which owns Schick, proceeding in federal court in Boston, Gillette yesterday declined to say whether it would again try to get an injunction to stop Quattro sales.

''We are pleased the court of appeals agreed with the fundamental position Gillette took in this situation, specifically that our patent extends to four-bladed razors, including Schick Quattro," said Gillette spokesman Eric Kraus. ''We have been consistent in our rigorous defense of our company's intellectual property. We remain confident that Quattro infringes our technology."

Energizer declined to comment.

In a company dominated by razors and blades, Mach3 is Gillette's blockbuster product, and a powerful part of the attraction to Procter & Gamble Co., which is proposing to buy Gillette for about $57 billion.

Gillette is the world's leading razor and blade company, commanding about 71 percent of total sales worldwide in 2004, and the business accounted for 63 percent of the firm's operating profit last year, according to Gillette's most recent annual report.

At issue is not necessarily the number of blades in the razor head but their arrangement. Gillette said the unique aspect to its technology is the ''progressive" alignment of the blades, which reduces drag and provides a closer shave. Gillette said the alignment of Quattro, even though it has one more blade, so mimics the Boston firm's patent in geometry and spacing that the firm copied the Mach3 technology.

But not, apparently, its business successes. Gillette said data provided by ACNielsen show Mach3 crushing Quattro in sales of blades, commanding a 35 percent market share to Quattro's 3 percent.

And in sales of new razors, separate data provided by market research firm Information Resources Inc. show Quattro with a 13.3 percent share over the past 12 months, compared to a 39.4 percent share for Mach3 and Venus, Gillette's three-bladed shaver for women. Schick just introduced the Quattro for Women this month. Information Resources data do not include sales to Wal-Mart Stores Inc., which is Gillette's largest customer.

Either way, the data suggest that Quattro so far is not much of a threat to Gillette's business, which may be a factor in the company determining how aggressively to proceed against Energizer in court.

One issue that may weigh on Gillette as it plots its next move is that the Circuit Court ruling was far from a slam-dunk for the Boston firm.

While two of the three on the panel agreed that Gillette's patent could include razors with more than three blades, a third judge, Glenn Leroy Archer Jr., strenuously objected, saying the description in the patent claim clearly referred to a razor with three blades.

Andrew Beckerman-Rodau, codirector of the intellectual property program at Suffolk University Law School, said what is significant about this is that the Appeals Court hears a lot of patent disputes.

''They have a lot of expertise, but if the three judges couldn't agree, that means it's not an easy claim to interpret," he said.

Moreover, Beckerman-Rodau said the two prevailing judges were not definitive in their endorsement of Gillette's patent claim.

For example, the appellate judges said the claim in the case was at a ''preliminary" juncture and is ''based upon an incomplete record," and noted that the ''District Court will have every opportunity to review and revisit this claim."

''A lot of times after this kind of decision, the case is over because the federal circuit usually says: 'The claim means this, period,' " said Beckerman-Rodau.

Andrew Caffrey can be reached at caffrey@globe.com.