Mexican company Pigmentos Vegetales del Centro (Piveg) was recently granted a temporary stay of injunction - the initial phase of a patent infringement suit initiated by lutein supplier Kemin Foods and the Catholic University of America - after appealing to the US Court of Appeals for the Federal Circuit.
On 2 January 2003 Kemin filed the injunction against Piveg alleging that Piveg has infringed two US patents held by Kemin for the manufacture of purified lutein. The injunction set out to prohibit Piveg from selling its purified lutein products for human consumption in the United States.
The patents at issue are US patents 5,382,714 and 5,648,564 with Piveg currently appealing against the Kemin move on the basis of two claims. Piveg claims that the scope of US patent 5,382,714 was broadly misinterpreted to apply to lutein 'suitable for human consumption' instead of the narrower patent subject, 'substantially pure' lutein crystals. The Mexican company claims that the patent is unenforceable due to relevant prior art (Tyczkowski and Hamilton, Research Note: Preparation of Purified Lutein and its Diesters from Extracts of Marigold, 1991 Poultry Science 70:651-54) that existed when Kemin filed its patent application.
According to Piveg, Kemin knowingly failed to disclose the prior art when filing the patent application in the US, making the patent unenforceable. On filing for similar patents in Japan and Europe, reports the Mexican company, Kemin was required to modify their patent application on the basis of this relevant prior art.
"We have developed our own proprietary processes and capabilities and will continue to defend our right to provide our high quality products to the US market. Kemin's allegation that Piveg is infringing these patents is frivolous and an attempt to eliminate competition through the judicial process rather than the marketplace," said Roberto Espinoza, CEO of Piveg.
"The evidence presented at trial will show that Piveg does not infringe on US patent 5,382,714. Until that time we will now be able to continue selling our high quality products," added Espinoza. "We are very pleased that the court is considering our appeal so that we can continue providing our products to the industry and remain the world's leader in carotenoid propagation."
Piveg supplies livestock, food, and nutraceutical products with catering pigments. The company processes its marigold crops in one of five plants in Mexico, two in Peru, and a concentration facility in Celaya.