FORT COLLINS – Battling the world’s biggest consumer-products companies to protect a toothbrush patent, two Fort Collins lawyers have made a dentist the David in a court fight with one Goliath, and are scouring the landscape for others.
Highlands Ranch pediatric dentist Randy Asher enlisted nationally renowned patent lawyer Bill Cochran and trial lawyer Erik Fischer, both of Fort Collins, in his fight with personal-care product giant Johnson & Johnson – a fight that ended recently when the company signed a license agreement for an undisclosed sum.
At stake was Asher’s 1998 patent for a plaque-removing toothbrush, an exquisitely simple device that he developed during the middle 1990s and that is “proven to be the only toothbrush that could actually remove plaque,” Cochran said.
The Johnson & Johnson agreement closed a case filed in U.S. District Court in Denver. It is so shrouded in nondisclosure language, though, that Asher and his lawyers often start sentences that they can’t finish when responding to questions about it.
Take, for example, a question posed to Asher about how Johnson & Johnson came to develop a toothbrush that appears to be a virtual copy of his design.
“What we found was that …” Asher began. “Nope. I’d better not go there.”
Cochran even hooks his fingers to form “air quotes” when he describes the “win” against Johnson & Johnson, since it was technically a pre-trial settlement leading to dismissal.
With cases possibly pending against other consumer products companies such as Procter & Gamble Co., GlaxoSmithKline Inc., Colgate-Palmolive and Unilever, the stakes are high enough that no one wants to blow the deal with a stray word.
A story that can be told is one of how Asher discovered in September 2003 during a stroll though a Walgreen’s drug store near his home that his weird-looking toothbrush design might have been infringed upon.
‘Kind of a shock’
Even then, Asher chooses words gingerly in describing his reaction to seeing a nearly exact copy of his invention – a Johnson & Johnson product with the Reach Max Brightener trade name.
“Similar” seemed a safe word. “Strikingly so,” Asher said. “It was kind of a shock.”
Asher took to the Web, searching the U.S. Patent and Trademark Office Internet site for patents that might have tread upon his own. There he found products such as the Crest Spinbrush Pro Whitening, a trademark registered by Procter & Gamble. Up popped the AquaFresh Extreme Clean toothbrush, a GlaxoSmithKline product. And there were others.
All of them were “strikingly similar,” he said – again using the lawyer-approved words – to the design he had patented nearly a decade ago.
The basis of Asher’s patent consists of two, soft “elastomeric” posts, nestled in the center of the brush amid otherwise ordinary-looking bristles. Each of the rubber-like posts has tiny abrasive particles embedded within it, a combination that was proven in clinical trials at the Denver Children’s Hospital dental clinic to wipe away bacteria-caused plaque and tartar.
When Asher undertook his original patent search in preparation for his application, he said he was surprised that no inventor had come up with the idea.
“I did the searches thinking that someone would have done this, but no one had,” he said. “I have no clue why no one had thought of it before.”
His inspiration for the product came when he was absently watching his wife as she cleaned a bathroom mirror.
“‘Bang!’ I thought,” Asher said. “You wouldn’t try to clean a mirror with a toothbrush, would you? So why would you try to clean tooth surfaces with one?”
Dentists, and their patients, are bombarded with all sorts of expensive and exotic therapies for removing tartar and plaque from teeth, Asher said. The rise of cosmetic dentistry, and the whitening craze, have only fueled the industry further.
In 2002, the last year for which statistics are available, the U.S. toothbrush market was $793 million, up from about $600 million three years previous. It’s assumed to be more than $1 billion today, Asher said. A growing share of that belongs to powered toothbrushes, including the Crest Spinbrush and other models that Asher and his lawyers are scrutinizing.
Asher’s discovery of Johnson & Johnson’s apparent infringement on his patent indirectly led him to Fort Collins. Since Asher’s Denver-based patent law firm had worked in the past for Johnson & Johnson, his lawyer cited the conflict and referred him to Cochran.
“Bill’s one of the world’s best patent attorneys, and he and Erik both have done a great job with this,” Asher said.
After earning his electrical engineering degree from Colorado State University, Cochran turned to law school at George Washington University. His 35-year career includes time as the worldwide director of intellectual property litigation for Hewlett Packard Co. and as senior patent attorney for the Los Alamos National Laboratory in New Mexico.
After being immersed in electro-quantum mechanics, laser fusion, fuel-cell technology and particle-beam weapons systems, Asher’s modest toothbrush design was a refreshing change.
“There’s beauty in the simplicity of this,” Cochran said.
The simplicity also drew the attention of other manufacturers, most of whom chased Johnson & Johnson into the marketplace with their own versions of Asher’s invention.
“When Johnson & Johnson came out with the infringing product, the others all followed suit,” Fischer said. “They all came out with similar products, and without regard for the patent.”
P & G next?
The first possible target is Procter & Gamble, the new parent of the Gillette Co. and its Oral B toothbrush division. Asher said his lawyers might gently suggest that the company obtain a license for its Oral B Pulsar brush, one that looks … well, “strikingly similar” to Asher’s model.
The license agreement with Johnson & Johnson for a sum that Asher said was “satisfactory” – another sterilized word – could not have come at a better time. Now 45, Asher severely injured his right hand in a fall in 2003 and has not been able to return to his practice since.
He said he’s hoping for future resolutions of patent infringements, should they be proven. He’s also hoping, he said, for broader acceptance of his invention by his peers.
“It’s interesting that the people who were the least receptive to this idea were my fellow dentists,” Asher said. “It’s almost a professional mindset that if it’s not expensive or complicated, it can’t work. But from an inventor’s perspective, it’s simple things that make the most impact. Staples. Paper clips. I’m a simple kind of guy with a simple concept.”