Jury to decide lutein patent dispute case

By Shane Starling

- Last updated on GMT

Related tags: Patent infringement

A US district court has ruled a jury not a judge must decide a long-running patent dispute between leading lutein supplier, Kemin Health and start-up, OmniActive Health Technologies.

The court denied OmniActive’s non-infringement claim for summary judgment in regard to the patent US Patent No. 5,382,714 for ‘Process for Isolation, Purification and Recrystallization of Lutein from Saponified Marigold Oleoresin and Uses Thereof’.

That trial is expected in July, 2010,OmniaActive said.

“We are very pleased with the Court’s well-considered and reasoned decision, which will be the patent claim construction before the jury during the trial,”​ said Kemin Health president, Rodney Ausich.

In a statement OmniActive said: “OmniActive remains confident that when this case goes to trial, the jury will find the scientific evidence and the legal arguments overwhelmingly in favor of OmniActive's free lutein products and confirm they do not infringe Kemin's patent.”

Kemin noted the court agreed the meaning of ‘lutein’ for purposes of measuring lutein purity; the interpretation of the claim terms ‘substantially pure’ and ‘substantially free from other carotenoids and chemical impurities found in the natural form of lutein in the plant extract’; and the construction of ‘no traces of toxic chemicals’.

“When evaluating lutein purity, the Court determined that it should consider the percentage of lutein against the percentage of other carotenoids and specifically rejected OmniActive’s argument that residual plant matter, fatty acids and waxes that are not carotenoids should be considered in the carotenoid composition,”​ it added.

Omniactive noted that it had counterclaims alleging the patent is invalid.

“Kemin engaged in inequitable conduct before the United States Patent and Trademark Office in procuring the original '714 patent and its reissue applications, that Kemin has engaged in deceptive and unfair trade practices in competing with Omniactive, and that it has falsely marked its products with the '714 patent,”​ it said.

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