The litigation began when Kemin filed a patent infringement against the Mexican pigment manufacturer over two process and product patents for the carotenoid lutein. The previous ruling awarded Kemin $58,775 in damages.
Intellectual property allows ingredients manufacturers to earn back the money they invested in research and development, and as such the upholding of the Kemin appeal could reassure companies of the solidity of patent regulations.
"This decision helps assure our customers the lutein products they've invested in continue to have the patent-protected quality and reliability that is so important in the nutritional supplement market," said Rodney Ausich, president of Kemin.
Lutein is marketed for supporting eye health and emerging science also indicates that it could help promote skin health too. Kemin's branded FloraGLO lutein is a purified marigold petal extract that contains the antioxidant carotenoids lutein and zeaxanthin. PIVEG sells a non-branded lutein ingredient.
Pigmentos Vegetales del Centro (PIVEG) argued that the appearance of art in a 1991 issue of Poultry Science (Tyczkowski and Hamilton, Research Note: "Preparation of Purified Lutein and its Diesters from Extracts of Marigold, 1991 Poultry Science 70:651-54) teaches all the limitations of one of Kemin's patents, except for the limitation that the purified lutein product contain no traces of toxic chemicals.
However, PIVEG disputed that this limitation could be reasonably inferred.
"PIVEG argues that a person of ordinary skill in the art in the early 1990s would have known how to remove toxic solvents from purified lutein and would have been motivated to do so," summarized the Appeal Court documents.
However, the court decided again that PIVEG "failed to meet its burden of proving by clear and convincing evidence" that this limitation would have been obvious to a Poultry Science reader.
Kemin's proprietary process involves the use of propylene glycol for purifying lutein.
The court had also found inconsistencies between PIVEG's actual process and its two-page process document. In the 2003 discovery pretrial litigation period, Kemin was permitted to visit PIVEG's manufacturing facility in Mexico. Various parts of PIVEG's process were either not operating at all or were not operating under normal conditions. The court then ordered a second inspection.
The Appeals Court also disagreed with a previous decision that ruled Kemin could not include a supplemental expert report as evidence.
"We agree with Kemin that it was an abuse of discretion to strike the supplemental expert report, and we agree that for that reason the issue of infringement of claim 5 of the '714 patent must be remanded to the district court," read the Appeal Court documents.