Nestec S.A. (better known as Nestle), parent company of Purina, a pet food manufacturer based in St. Louis, Missouri, and Wysong Corporation, a health education and nutritional development company in Midland, Michigan, have filed suits against one another in the Eastern District Federal Court in Missouri.
The suits are related to a technology invented by Dr. Wysong in the early 1980’s to enrobe pet and human foods with probiotics. These are health giving organisms, such as found in yogurt, that can boost the immune system, fight pathogens, produce nutrients and growth factors, and help digestion.
Although Wysong did not seek a patent, it has used the technology in both animal and human foods since the early 1980s. Due in large part to Wysong’s educational efforts and product development, probiotics have become a part of the collective health consciousness of the public and food industry. Of late, many natural pet food companies have begun using Dr. Wysong’s technology as well.
Nestle/Purina obtained a patent granted in 1999 for the same technology. To this date, however, Purina has not incorporated probiotics in its own products—although its patent describes in detail the many health benefits of probiotics. Instead, it is attempting to prevent Wysong and other companies from using probiotics unless a licensing fee (tax) is paid to Purina.
A patent is not valid if the invention (prior art) exists in the public domain prior to the patent. The evidence of Wysong’s prior art for over fifteen years before the 1999 Nestle patent was granted is, according to Wysong, incontrovertible and ample. In fact, in 2004 just a portion of Wysong’s prior art evidence swayed a European patent review board to deny Nestle/Purina a like European patent.
These facts have been repeatedly made known to, but ignored by Nestle/Purina. Purina’s ultimatum is that Wysong either pay sales-based licensing fees (essentially, a tax) going back six years and forward into the future, or pay for expensive patent litigation that can run into the millions.
Wysong, a small family owned company, is unwilling to pay licensing fees to the multibillion dollar Nestle/Purina for what amounts to Wysong’s own invention, and consequently now finds itself being sued by a company literally hundreds of times its size. Purina takes the position that since they were granted a patent they intend to enforce it and extract commissions from all natural pet food companies using probiotics.
Wysong argues that the patent should have never been granted by the United States Patent and Trademark Office, is invalid and unenforceable, and that any attempt by Purina to use the threat of litigation costs to force licensing fees is unethical and illegal. Since Wysong publicized and used the technology in products distributed nationally for more than 15 years prior to the patent, Wysong claims that the patent holders copied Wysong art and did not reveal this to the patent office when filing.
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