Coffee fruit antioxidant row intensifies as firms trade insults over patents

VDF FC has accused KonaRed of “spreading half-truths​” and “jumping the gun​” by claiming victory in a patent dispute it insists is far from over, while KonaRed has accused VDF FC of “deceitful rhetoric and juvenile bluster”.​

KonaRed: USPTO has rejected all claims in VDF FC patents​

The row started after KonaRed issued a press release entitled: ‘KonaRed Achieves a Major Victory and Milestone Defending VDF Futureceuticals' Claims.’

This said the US Patent & Trademark Office (USPTO) had re-examined claims relating to three patents held by VDF Nutraceuticals covering its Coffeeberry line of coffee fruit ingredients - and rejected them all.

But VDF FC director of marketing Brad Evers told NutraIngredients-USA this was a "mischaracterization​" and that the USPTO had merely initiated the ex parte re-examination process with a standard 'non final action' rejecting all claims before they are scrutinized - a process that often took more than two years.

The claims are at the center of a patent infringement case filed by VDF FC vs Sandwich Isles (doing business as KonaRed) in a federal court in Hawaii that has been put on ice ​while the USPTO re-examines the patents in question.

VDF Futureceuticals: It is likely some claims will survive re-exam process​

Evers said: “Immediately prior to the stay, the federal judge in the patent lawsuit summarily dismissed the great bulk of counter-claims KonaRed had pursued against FutureCeuticals.”​

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He added: “It is very likely that some of FutureCeuticals patent claims will survive the re-exam. We are just at the start of the process, not the end, so for KonaRed to claim victory at this stage is very premature."​

General manager John Hunter added: “KonaRed has jumped the gun on this one. There is no KonaRed victory at all… KonaRed is now just trying to kick the can down the alley in an attempt to avoid the inevitable. They may be hoping we will not have the stomach to fight on, but they have seriously misjudged our resolve.” ​

Shocking attempts to distort the facts?​

He added: “There is ample evidence that would lead any reasonable person to suspect potential infringements of our IP. ​

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“If they think that spreading half-truths and incomplete, misleading information through the media will win them public support or new customers, or that these machinations can dissuade us from vigorously defending our patent rights, they are grievously mistaken. ​

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“We are only made more determined by their shocking attempts to distort the facts.” ​

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Deceitful rhetoric and juvenile bluster…​

But KonaRed​chief executive Shaun Roberts said VDF FC was clutching at straws: "VDF FutureCeuticals has exposed itself and its weak legal strategy with deceitful rhetoric and juvenile bluster.”​

KonaRed chief scientific officer Steven M. Schorr added: “First, we were never infringing on the patents. Second, we recognized that the patents themselves were flawed and invalid… Recently, the USPTO not only accepted the re-exam, but rejected all of the claims of all three patents at issue."​

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"How ​[VDF general manager] Mr Hunter can spin this development into a victory for his company is beyond comprehension.​

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"The truth is that the fruit of the coffee plant without the bean has been used historically for over 500 years, both as a tea or extraction and as a food… There are ample examples of prior art indicating that all of the techniques claimed by VDF FC were already patented.”​

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In an emailed statement, the firm added: “The burden of proof is on VDF. It is now up to VDF to convince the USPTO that the clams should not be rejected, or invalidated.”​

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KonaRed has refilled amended counter claims vs VDF​

In the meantime,​KonaRed has re-filed amended counter claims arguing that VDF engaged in tortious interference and inequitable conduct.

It added: “As to VDF's statement, ‘We obtained dismissal of almost all of the claims KonaRed pursued in the lawsuit’… yes they were dismissed.​ [But] KonaRed, analyzed the statement of the court and seeing the requirement for proving our counter claims, we subsequently re-filed amendments … that met the court’s stringent criteria.”​

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The patents in question​

KonaRed Coffee Fruit beverages contain a blend of antioxidant-packed Hawaiin Kona coffee fruit and other fruits.

VDF FC makes a wide range of fruit-, vegetable-, bean- and grain-based nutraceuticals including its proprietary CoffeeBerry range of ingredients derived from the fruit of the coffee plant.

The FutureCeuticals patents which are the subject of the lawsuit, are:

• #7,754,263​: Methods for Coffee Cherry Products, issued July 2010.
• #7,807,205​: Methods for Coffee Cherry Products, issued October 2010.
• #7,815,959​: Low-Mycotoxin Coffee Cherry Products, issued October 2010.