Let's say you were trying to find a way to wean the kids off sweets to stop the cavities and dentist bills. So you spent a lot of time researching and experimenting and came up with a sugarless cookie that if sprinkled with a little herb you discovered, stopped the cavities.
You decided to set up a little bakery and sell the cookies so other parents could benefit. You made your discovery no secret, in fact you wrote articles and books describing how you did it.
Years passed and you noted that other bakeries were copying you. Nevertheless, you knew that kids were benefiting so you didn't fret about that too much, even when they tried to convince their customers that they were the inventors. Besides, you didn't have the resources to go through the patent process, so really everyone had a right to it.
Then one day you received a letter from an attorney on staff at a mega-billion dollar corporate conglomerate cookie bakery. He said he had a patent on your cookie. What? You do a little investigation and discover that their patent came fifteen years after you made the discovery and were selling cookies all over the country.
So you write back and tell him this. He responds and says that if you do not pay him a commission on your last six years of cookie sales, and a commission on all your sales into the future, he will sue you in federal court. You again remind him that he can't do that because you were first. He can't steal your idea, patent it, then demand a ransom using the threat of suit.
He says, oh yes he can, and that you better settle up or face two to three million dollars in legal fees for patent litigation. After all, he says, what you are being asked to pay him is not as much as the legal fees will be, so why not just pay him and be done with it.
The other companies that had copied you actually were infringing on the patent since they began baking the cookies after the date of the patent. Thus they had no defense other than to rely on you to prove the patent invalid. But that would mean you could incur huge legal costs and really not gain anything other than to continue what you had always been doing. The only real winners would be the companies who had copied you, since without you they would either have to stop selling the cookies or pay the six-year penalty and commissions to the patent holder.
If you capitulate and pay, you get branded as a patent infringer. You will also have to increase the price of your cookies, as will all the other companies, to cover the commissions. That means that all the parents buying the cookies will now have to pay an inflated price. It will also stick in your craw that although the mega cookie manufacturer suing you describes in detail in their patent how kids' cavities can be prevented, they don't even use your invention in their own cookies! They just want to make money off other companies doing it.
What would you do?
Believe it or not, this is the exact dilemma Wysong now faces.
We appreciate any encouragement or thoughts you may have about our David and Goliath battle. And do not fear, we are here to stay and you will continue to receive out best efforts to give you good health information and products like you have come to expect.
FOR IMMEDIATE RELEASE:
Midland, Michigan : Nestec S.A. (better known as Nestle), parent company of Purina, a pet food manufacturer based in St. Louis, Missouri, and Wysong Corporation, a health education and nutritional development company in Midland, Michigan, have filed suits against one another in the Eastern District Federal Court in Missouri.
The suits are related to a technology invented by Dr. Wysong in the early 1980's to enrobe pet and human foods with probiotics - health giving organisms such as found in yogurt. Although Wysong did not seek a patent, it has used the technology in both animal and human foods since the early 1980s. Due in large part to Wysong's educational efforts and product development, probiotics have become a part of the collective health consciousness of the public and food industry. Of late, many natural pet food companies have begun using Dr. Wysong's technology as well.
Nestle/Purina obtained a patent granted in 1999 for the same technology. To this date, however, Purina has not incorporated probiotics in its own products. Instead, it is attempting to prevent Wysong and other companies from enrobing dry extruded pet foods with probiotics unless a licensing fee is paid to Purina.
A patent is not valid if the invention (prior art) exists in the public domain prior to the patent. The evidence of Wysong's prior art for over fifteen years before the 1999 Nestle patent was granted is, according to Wysong, incontrovertible and ample. In fact, within the last few years just a portion of Wysong's prior art evidence swayed a European patent review board to deny Nestle/Purina a like European patent. The decision was upheld upon appeal.
These facts have been repeatedly made known to, but ignored by Nestle/Purina in their suit filed against Wysong. Purina's ultimatum is that Wysong either pay sales-based licensing fees (essentially, royalties) going back six years and forward into the future, or pay for expensive patent litigation.
Wysong, a small family owned company, is unwilling to pay licensing fees to the multibillion dollar Nestle/Purina for what amounts to Wysong's own invention, and consequently now finds itself being sued by a company literally hundreds of times its size. Purina takes the position that since they were granted a patent they have a right to enforce it.
Wysong argues that the patent should have never been granted, is invalid and unenforceable, and that any attempt by Purina to use the threat of litigation costs to force licensing fees is unethical and illegal. Since Wysong publicized and used the technology in products distributed nationally for more than 15 years prior to the patent, Wysong claims that the patent holders copied Wysong art and did not reveal this to the patent office when filing. Thus, Wysong has either filed or is exploring the filing of claims against Purina for Sherman Act violations/patent misuse, misleading the United States Patent Office, failing to comply with the U.S. Patent Laws, including 35 USC §101-103, 111-113 and 133, improper attempts to monopolize the market, unfair competition, antitrust violations, false advertising under the Lanham Act, state claims for deceptive trade practices, RICO violations, and punitive damages under the Clayton Act.