Pet Food Giant Seeks To Tax Natural Pet Food Companies

S.A. (better known as Nestle), parent company ofpatent litigation that can run into the millions.
Purina, a pet food manufacturer based in St. Louis,Wysong, a small family owned company, is unwilling
Missouri, and Wysong Corporation, a health educationto pay licensing fees to the multibillion dollar Nestle
and nutritional development company in Midland,Purina for what amounts to Wysong’s own
Michigan, have filed suits against one another in theinvention, and consequently now finds itself being
Eastern District Federal Court in Missouri.sued by a company literally hundreds of times its size.
The suits are related to a technology invented by Dr.Purina takes the position that since they were
Wysong in the early 1980’s to enrobe pet andgranted a patent they intend to enforce it and
human foods with probiotics. These are health givingextract commissions from all natural pet food
organisms, such as found in yogurt, that can boostcompanies using probiotics.
the immune system, fight pathogens, produceWysong argues that the patent should have never
nutrients and growth factors, and help digestion.been granted by the United States Patent and
Although Wysong did not seek a patent, it has usedTrademark Office, is invalid and unenforceable, and
the technology in both animal and human foods sincethat any attempt by Purina to use the threat of
the early 1980s. Due in large part to Wysong’slitigation costs to force licensing fees is unethical and
educational efforts and product development,illegal. Since Wysong publicized and used the
probiotics have become a part of the collectivetechnology in products distributed nationally for more
health consciousness of the public and food industry.than 15 years prior to the patent, Wysong claims
Of late, many natural pet food companies havethat the patent holders copied Wysong art and did
begun using Dr. Wysong’s technology as well.not reveal this to the patent office when filing.
Nestle/Purina obtained a patent granted in 1999 forThus, Wysong has either filed or is exploring the filing
the same technology. To this date, however, Purinaof claims against Purina for Sherman Act violations
has not incorporated probiotics in its ownpatent misuse, misleading the United States Patent
products—although its patent describes in detail theOffice, failing to comply with the U.S. Patent Laws,
many health benefits of probiotics. Instead, it isincluding 35 USC §101-103, 111-113 and 133, improper
attempting to prevent Wysong and other companiesattempts to monopolize the market, unfair
from using probiotics unless a licensing fee (tax) iscompetition, antitrust violations, false advertising
paid to Purina.under the Lanham Act, state claims for deceptive
A patent is not valid if the invention (prior art) existstrade practices, RICO violations, and punitive
in the public domain prior to the patent. The evidencedamages under the Clayton Act.
of Wysong’s prior art for over fifteen yearsMore is at stake than a giant company out muscling a
before the 1999 Nestle patent was granted is,small one. If Purina succeeds, they will, in effect, be
according to Wysong, incontrovertible and ample. Inimposing a tax on all companies who have followed
fact, in 2004 just a portion of Wysong’s priorWysong’s lead and now use probiotics. This
art evidence swayed a European patent reviewtax will significantly increase the cost to
board to deny Nestle/Purina a like European patent.manufacturers, distributors, and stores, as well as to
These facts have been repeatedly made known to,consumers wanting to use healthy pet foods. Over
but ignored by Nestle/Purina. Purina’stime, this could amount to hundreds of millions of
ultimatum is that Wysong either pay sales-baseddollars in increased costs for the natural pet food
licensing fees (essentially, a tax) going back six yearsindustry and their customers.
and forward into the future, or pay for expensive