Nestle Sues Company That Came Up A Product 15 Years Before Nestle Patented It…

from the ain't-the-patent-system-great? dept

Today’s story of patent insanity comes to us courtesy of Wysong, a small natural pet foods company that came up with a method to put probiotics in foods in the early 80s. The company used the technique to sell pet food biscuits that supposedly have certain health benefits. As its products became more popular, the company saw copycats come into the market, but figured it helped everyone (including the pets), and there was nothing wrong with that. Then… fifteen years later, Nestle, the owner of Purina, happened to patent the very same process and, a few years later, sued Wysong, demanding royalties all the way back to when it got its patent. Wysong’s owners responded, pointing out that their product had been on the market since long before Nestle’s patent… to which Nestle responded with a threat to sue Wysong in federal court. Knowing Wysong probably didn’t have the millions of dollars it would take to fight a patent lawsuit, Nestle tried to pressure them to just give in and settle right away. The company is fighting back (and has been able to stop Nestle from getting an identical patent in Europe thanks to its prior art), but it’s a costly battle.

The patent system defenders who are always quick to comment on this site like to talk about how they’re really defenders of “small inventors” against evil “big businesses” who are trying to steal their work. I’m curious what they think about this case, where the exact opposite is happening?

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Companies: nestle, purina, wysong

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Comments on “Nestle Sues Company That Came Up A Product 15 Years Before Nestle Patented It…”

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128 Comments
DS says:

Re: Re: Re:2 Re:

Na, it’s just a matter of they’ll sell the cheapest crap they can get away with. As Americans have traditionally liked that milky crap that some people call choclate, that’s what they sell here. Lindt FTW!

And most of Hershey’s chocolate isn’t chocolate anymore. It’s “Made with Chocolate” which is on the level of a cheese food product.

Gabriel says:

It’s got to be obvious to anyone paying attention to this kind of stuff, that the rampant patent abuses going on today are a SIGNIFICANT drag on our economy.

Rather than spending millions of dollars fighting to either enforce silly patents, or defend themselves against silly patent suits, here’s a funny idea: let’s let companies fight these things out in the marketplace. You know, that place where capitalism determines who wins, and consumers benefit. As opposed to the courtroom, where judges (and occasionally the laws) determine who wins, and only lawyers benefit.

Pants says:

Re: Re:

Gabriel -> “Rather than spending millions of dollars fighting to either enforce silly patents, or defend themselves against silly patent suits, here’s a funny idea: let’s let companies fight these things out in the marketplace.”

Or – let the CEO/Pres/Owner of each company duke it out in an arena not unlike WWF. It would be the new smash hit reality show that everyone would talk about at the watercooler. The contestants could score extra points for wild and outlandish costumes which would then be donated for use in the next Hollywood movie about big corp boardroom battles.

BearGriz72 (profile) says:

Re: Re:

“Rather than spending millions of dollars fighting to either enforce silly patents, or defend themselves against silly patent suits, here’s a funny idea: let’s let companies fight these things out in the marketplace. You know, that place where capitalism determines who wins, and consumers benefit. As opposed to the courtroom, where judges (and occasionally the laws) determine who wins, and only lawyers benefit.”

If only it were True….

——————————

“He who builds a better mousetrap these days runs into material shortages, patent-infringement suits, work stoppages, collusive bidding, discount discrimination–and taxes.”
H. E. Martz

Weird Harold (user link) says:

Re: Re:

It became a patent and copyright beating site I think when Mike got solidly on the “FREE!” bandwagon. That whole notion requires that most rights granted to authors, creators, developers, and trademark holders gets tossed out the window.

Nestle does appear to be overstepping. Patent law isn’t the only place where the significant costs of fighting a lawsuit often lead to bullying by big companies or rich individuals. I think your ax to grind Mike is more with a legal system that no longer gives justice to the poor.

For the millions upon millions of patents out there, there are a few cases of abuse in this manner, and millions of other stories you never report about companies making a better mousetrap, patenting it, and making a good living off of licensing that patent out to other companies, or building and selling the product itself. If you did that,you would see that the patent “abuses” you are so up in arms about are a very small part of the patent process, not the main part.

Oh yeah, Mike, how long does a patent apply in the US? You might want to go check.

Matt says:

Re: Re: Re:

Just because people don’t understand the promotional value of free, doesn’t mean rights are lost. However, it doesn’t mean rights should have been assigned in the first place.

Patent law is a problem and the whole “no longer gives justice to the poor” is a strawman. Legal pressure is a general issue and patent law is merely the result. There are bigger fish to try.

Dont’ assume that there are lots of cases of successes either, Harold. There aren’t. Lots of companies have issues trying to innovate because you can patent any theoretical improvement of the existing product, preventing people from even improving it mostly. Improvement patents are quite limited.

Anonymous Coward says:

Re: Re: Re:

Thank you Weird Harold, for finally admitting there are problems within the patent system.

I’m glad you no longer see lawsuits from big companies against small companies or individuals as the correct enforcement of patent law.

Could you go one step further and wonder why Nestle was granted a patent on a process someone else invented?

Chuck Money says:

Re: Re: Re:

I’ll save Mike the trouble. The answer is a basic patent obtainable for $100 from the USPTO is good for 14 years, with exceptions for the fashion and pharmaceutical industries. For medicine it’s 7 years. For fashion items I believe it’s 2 however I am not certain on those.

So, in 14 years we have gone from Pentium 1 to Core 2 Extreme. One processor now can do what an entire cluster of thousands couldn’t 14 years ago. But the patent on those old processors, which have no market value and are vastly outdated, are still in effect.

Also, I should mention one more thing. For an additional $10 per year for each additional year up to 74 years you can extend a patent with the USPTO. So the Pentium 1 will be patented by the time most of our grand kids buy their first computer. I doubt even large OEMs will be able to order Pentium 1’s as replacement parts by then. They’ll probably be antiques in museums. But they’ll still be patented.

Any more questions?

BTR1701 says:

Re: Re: Re:

> I think your ax to grind Mike is more with
> a legal system that no longer gives justice
> to the poor.

No, I think the ax being ground here is a patent system that allows a company like Nestle to patent something that was clearly invented long before by someone else and has been on the open market for years.

Anonymous Coward says:

Re: Re: Re: Clearly?

Really? Where is there evidence that the “something” claimed by Nestle was invented by someone else years before? Wysong’s claim is hardly evidence that they “clearly invented” the process. If there was clear evidence, there would be no debate. Instead, Wysong has taken their use of the word “probiotics” as a proxy for a process that they neglect to detail.

I would be more than happy to be a Wysong cheerleader, AFTER they provide evidence that they “clearly invented” the process claimed by Nestle “long before” Nestle.

Willton says:

Re: Re: Re:2 Clearly?

I would be more than happy to be a Wysong cheerleader, AFTER they provide evidence that they “clearly invented” the process claimed by Nestle “long before” Nestle.

This AC has a point. TechDirt readers and authors are so adamant about someone providing evidence to support a theory that patents are good. So why does TechDirt ask for no evidence confirming Wysong’s story that this process has been around for 15 years prior to Nestle’s filing? Are we teetering on the edge of a double standard?

Anonymous Coward says:

Re: Re:

“When did techdirt become nothing more than a patent lawsuit site? Why not report on real innovation?”

Sadly, the patent system has everything with the development of technology these days. Also, was the headline misleading in some way? If patent related articles bore you, why click, read and post?

Uncle Dutch says:

Anonymous Coward et al

Why don’t *you* report on…? What is it about this site that in recent times invites sophomoric beside-the-point comments. AC (et al): Why not create/post to webemorons.com, instead? Also, there is always the, “Who cares?” post, for those who cannot count beyond one, and who cannot sense beyond immediate gratification or what is currently on the tube.

Yes, patents are frequently a drag on innovation and the economy, as well as an assault on common sense, not to mention decency. Often, they are just wrong.

Marconi, for decades, was credited with – and granted a patent for – the invention of radio, when in fact Tesla described/published/demonstrated radio years earlier, when Marconi was in knee pants. It took a few decades, but the record was eventually righted in the U.S. Courts, posthumously for Tesla, not that anyone has been paying attention… certainly not most reference materials and educators.

Of course the law, more often than not, is not about justice, but about the process – or the appearance of justice.

Now that education is a commodity instead of a process, as part of evolutionary civilization, alas, the solution may well be beyond our generation – if at all, inasmuch as we seem to be in retrograde mode in terms of “doing the right” thing for humanity and in the interst of intelligent information processing. That is, we may now be riding the slippery slope back to the bottom of the petri dish. The Chicken Little “Sky Is Falling” economic [manufactured] crisis may be a step/stumble in a Lemmings-like rush to the nearest jumping off point.

Solutions? Various: Start with a lifetime work effort of abolishing stupid, counterproductive legislation which furthers nothing but the ($) interests of a few who profit by litigious mafioso tactics hell bent on running (ruining)the lives of others… and of creating a class of criminals of those who prefer other ways of (non-coercive) doing/being (think of the countless mayhems/murders related to criminalization of drugs, and of the countless lives ruined by Big Pharma (i.e., “approved” drugs).

So, Anonymous Coward (and ilk), why not blog your own musings. Why do you waste your precious time?

As for myself: I know I am only blowing off steam – a frustrated response to escalating babble (even while creating some of my own).

Mike: Keep up the good work. I do hope you consider moderating/editing (i.e., deleting) some of these posts (even mine) in the interest of brevity to encourage more on-point comments.

Chuck Money says:

Re: Anonymous Coward et al

Agreed…with some exceptions.

We don’t need to abolish stupid legislation. We need to abolish stupid, period, be it in the form of writings or even people. Yes, I support genocide of idiots.

We could start by acknowledging that Jesus is the world’s greatest fairy tale. After that, maybe we could all agree than Communism – the real thing, not what Lenin and Stalin did – is the best form of (or lack thereof) government available and all agree to give it an honest try. To make people happy we can leave all the current government buildings in tact and just test it out for 10 years. If people would try it, they’d like it. Last, once we have done away with money because, well, we don’t need it, issues like patents will no longer be relevant because if someone can’t profit from a patent, there is no need for one.

But back to reality, let’s just kill off all the idiots and then we can seriously discuss the rest of this, ok?

(P.S. Hershey’s special dark is good chocolate. Their Milk Chocolate admittedly leaves much to be desired…)

Brandon says:

Re: Anonymous Coward et al

To expand on the example you gave of Marconi and Tesla, if I remember correctly there was another guy that invented the telephone just before Alexander Graham Bell did, but Bell got the patent and all the credit. I wish I could find my source on this but I read it a while ago so someone please correct me if I’m wrong.

Seems like the same thing is being done here. It’s certainly not fair, but the way the patent system seems to work, this does seem to be following protocol unfortunately. And because of the poor way the patent system works, Nestle seems to be completely in their legal right to file a lawsuit.

Anonymous Coward says:

Re: nestle...

I suspect it was not patented by the small company because the patent process has become way too costly thanks to the activities of lawyers.

That Nestle knew about the other product and did not report it in the prior art section of their patent application should be considered fraud and possibly perjury. Too bad the small company can’t lay charges of federal criminal action.

Anonymous Coward says:

What I have difficulty grasping is why so many seem prepared to declare this particular matter as being exemplary of abusive behavior by a patentee without any objective information at hand? At most it appears that a company is the US has been using a “technology” for quite some time, but what is meant when the US company uses the word “technology” is nowhere stated.

As best I can determine with the very few available facts, Nestle has received a patent claiming a particular “invention”, whereas the US company asserts it has been using a “technology” for many years pre-dating Nestle’s patent. On these facts alone it is impossible to draw any informed opinion, so jumping on the “this is terrible” bandwagon seems quite a bit premature.

Mike (profile) says:

Re: Re:

As best I can determine with the very few available facts, Nestle has received a patent claiming a particular “invention”, whereas the US company asserts it has been using a “technology” for many years pre-dating Nestle’s patent. On these facts alone it is impossible to draw any informed opinion, so jumping on the “this is terrible” bandwagon seems quite a bit premature.

Apparently you’ve never been on the receiving end of such a legal threat. It’s a shame. For a patent lawyer, it would probably make you more sympathetic if you had to go through the stuff you put others through.

Willton says:

Re: Re: Re:

Apparently you’ve never been on the receiving end of such a legal threat. It’s a shame. For a patent lawyer, it would probably make you more sympathetic if you had to go through the stuff you put others through.

You mean like defending against claims such as these? No, I guess no patent lawyer ever does that.

You should also note that your source of this information is a party to this lawsuit, which would seem to color the facts in that party’s favor. For someone so keen on having an unbiased view of things, you certainly do not choose your news sources well.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Nestle patented something that had clearly already been done by one if not more other parties”

The problem here is that there is not enough factual information to determine if the above quote is true or not.

I have seen many times where a party such as this US company asserts “but I have been using the ‘technology’ in my products for years”. Upon investigation it much more often than not turns out that the “technology” user has never been doing what a patent claims, and then later comes out with a product variant that falls within one or more of the claims.

Pants says:

Re: Re: Re:3 Re:

AC -> “The problem here is that there is not enough factual information to determine if the above quote is true or not.”

… and this is not a courtroom.

Given that the claim to have been using this process many years prior to the patent in question is indeed correct and verifiable, how would you then feel about the attempt to extract fees, fines, etc from the defendant?

I wonder if Purina has a patent on the pracice of not testing their pet food for contaminates, like melamine.

Anonymous Coward says:

Re: Re: Re:4 Re:

Even outside a courtroom, having facts in hand is important before taking a position.

Assuming, solely for purposes of discussion, that what the US company has been manufacturing and selling for 15+ years falls under the terms of one or more claims of the patent, then by law those claims would be invalid under at least Sections 102(a) and (b) of the Patent Act.

A problem here, I fear, is that the US company may have retained as counsel a general litigation firm. I say this based upon what I read on the website of the US company as all of the wrongs allegedly being perpetrated. In my experience this typically results in unnecessarily higher legal fees (I have seen fees as high as a factor of 10) and suboptimal representation. I would never use the services of a general practioner doctor to perform surgery, so I am always mystified why people choose to do otherwise when it comes to matters of law.

Anonymous Coward says:

Re: Re: Re:

I have had clients on the receiving end of letters asserting third party rights. None ever proceeded beyond the exchange of letters.

On only a very few occassions have I ever sent a letter to a third party asserting IP rights. In each such instance a breach of contract or confidentiality agreement was the catalyst, and in each such instance the existence of IP rights was instrumental in resolving the matter without resort to litigation.

Anonymous Coward says:

Re: Re: Re:2 Re:

I am offended you say I am “a fan of these things”.

I firmly believe that most matters that end up in litigation were the result of people talking past each other, and not to each other. Letters, telephone calls, and face to face meetings are much more effective than “legal threats”.

I am also a strong advocate of mediation as a way to bring people together to resolve their differences.

Moreover, I never discount the value of arbitration as it is yet another means of avoiding a fight that more often than not does not need to occur.

In sum, litigation to me means that one has not been a particularly effective advocate. It should always be a last resort, and even then it should not be entered into except in the most exigent of circumstances.

Anonymous Coward says:

Re: Re: Re:3 Re:

“Moreover, I never discount the value of arbitration as it is yet another means of avoiding a fight that more often than not does not need to occur.”

Not to be confused with the prominent and abusive binding arbitration that so many people unknowingly agree to and then are later victimized by.

StopNestleWaters (user link) says:

Nestle's MO

This sadly fits well within Nestle’s MO in the United States.

They’re in the process of using their considerable legal might to force a small town in Maine to permit a 24/7 truck loading station in a residentially zoned area. They lost the original suit and three subsequent appeals, but brought a fourth appeal anyway which was just argued before the Maine State Supreme Court.

They’ve pulled the same predatory crap in California and Michigan, and it’s clear that’s simply how they do business.

I do business by avoiding predatory Swiss multinationals like that.

Ray says:

Patents

The real problem here is the cost of getting a PATENT. In the 60’s and 60’s a patent could be had for a few dollars and updates to that patent were a few dollars more. Then in the 70’s big business got really involved after they lost a couple of cases to some little guy who had patented some thing much earlier. Then the federal government jumped in and decided it would make patents tougher for the little guy to get, now to start the process of getting a patent will cost you $10,000 to start and it is not uncommon for patents to cost upwards of a few million. BLAME BIG BUSINESS AND OUR ILLUSTRIOUS GOVERNMENT FOR THIS PROBLEM.

As all else fails, now it is time for the people to start taking back, boycott NESTLE’S, all the products they make, and co-own companies are listed on their web site.

So quit screaming about the little guy getting screwed and lets start screwing the big guy. If you don’t think this will work, you must have the ostrich complex with your head in the sand.

Gene Cavanaugh (profile) says:

Nestle abusing the patent process

Hmmm! Somehow we got into the fantasy that patent attorneys on this site are saying the PRESENT patent system “somehow” protects small inventors from big business – haven’t seen any comments like that; don’t agree with it.
Speaking for myself, as a patent attorney, I am saying the PRESENT patent system is bad; that the patent system should promote the arts, and that means protecting small inventors from big business; and to do that we need to get Congress off the big business campaign funding “feed trough” with campaign finance reform.
In the meantime, we need to promote small entity (also called “Jepson” patenting), promote first to file, and promote some scheme for making the USPTO more responsive to prior art (preferably before a patent is granted).
A first step would be to stop the ridiculous business model we have now – the USPTO supports itself with fees, but “needs” to tell the people who give them the largest fees (big business) they don’t want to be paid!!!
The USPTO should be independently funded by the government; that is, if we really do want an independent USPTO!
I suspect, though, that Congress will continue selling out to big business, and big business will continue to be the money behind the USPTO, because “that means no new taxes!”, ignoring the fact that the equivalent in “new taxes” would be MUCH less expensive!
BEAM ME UP, SCOTTY, THERE’S NO INTELLIGENT LIFE HERE!

Anonymous Coward says:

Facts and Fantasies

The patent in question is 5,968,569 (per Wysong), which relates to a method of preparing probiotic pet food. The patent is not for “probiotic dog food,” even though ALL of the evidence presented on Wysong’s web site (as of today’s date) merely points to the existence of the word “probiotic” in various locations. The existence of probiotics does not logically lead to the conclusion that the processes used to incorporate the probiotics in the pet food were the same. Ergo, Wysong’s “proof,” to the extent it is provided on its web site, is not compelling.

Wysong’s web site also claims that they managed to get a European patent with similar claims denied in Europe. Yet, the EPO web site shows that after opposition, EP0862863 – B2 was issued on 2008-09-03, with at least claim 1 being substantially similar to the original U.S. claim. Again, the very proof to which Wysong points is less than compelling.

It may well be that Wysong has a case. However, from the sparse evidence presented thus far, I find their case to be unimpressive.

Anonymous Coward says:

Re: Facts and Fantasies

The patent system defenders who are always quick to comment on this site like to talk about how they’re really defenders of “small inventors” against evil “big businesses” who are trying to steal their work. I’m curious what they think about this case, where the exact opposite is happening?

I never ceased to be amazed that the author of articles such as this one is only too quick to jump on anything that serves his interests in denigrating the patent laws without actually taking the time to flesh out relevant facts to see if they even support what he is saying in articles such as this one.

What perhaps the author does not fully appreciate is that the persuasive force of his arguments is lost many times because of their premature presentation.

LMR (profile) says:

Uncle Dutch, as a paralegal for many years, I can honestly say that your comment, “Of course the law, more often than not, is not about justice, but about the process – or the appearance of justice.” is absolutely correct. Those who do not understand this have never been any closer to the law than the latest episode of Boston Legal,

As for the chocolate issue, shame on all of you! Surely you know that there is no such thing as bad chocolate! 😉

Igor says:

> The patent system defenders who are always quick to
> comment on this site like to talk about how they’re
> really defenders of “small inventors” against evil
> “big businesses” who are trying to steal their work.

That definitely was not addressed to me (since I believe the patents are mostly used by “big business” to protect itself from another “big business”).

But I’d venture my opinion anyway. And it is a very short opinion.

Frivolous lawsuits and other kinds of lawsuits intended to harass the other party ought to entail a treble compensation of the other party’s legal expenses. That will allow many law firms to defend these cases on contingency bases (and collect the treble damages, if they are successful in proving the vexation litigation counter-charges).

GSArnold says:

Wysong should respond....

Wysong should respond with a motion to the USPTO to review the patent followed by a motion to stay this decision pending that review. If they have 15 years of prior art, this should be a no brainer and would eliminate Nestle’s claim.

Oh, and IANAL, so this might be complete crap.

Anonymous Coward says:

Re: Wysong should respond....

Oh, and IANAL

One does not have to be a lawyer to wend their way through this matter. The problem here is that far too many commenters have fallen prey to having a visceral reaction, and not one predicated on an understanding of the relevant facts. Unfortunately, the liked site of the US company does nothing to add the facts necessary to accurately understand the factual situation involved with the case.

Copyright Ranger says:

So what if Nestle is in the right here? Perhaps they improved the original formula to overcome the ‘novelty’ hurdle, and Wysong followed suit because it was a superior product… or some marketing line like that.

Once Wysong stepped on Nestle’s toes, they oiled up their patent litigators and sent them into the Colleseum.

Just a thought, haven’t read prior art, don’t jump on me all at once now…

R. Miles says:

Just another day in business.

I’d be curious to know how many stories, per day, Techdirt would have to post to keep up with the stupidity of this side of business.

I’m sure, every day, patent lawsuits are filed, regardless how large the company is. Hell, there are even folks out there who are suing who don’t even operate a business.

The patent and copyright systems need changed. Instead of giving ownership, it should be a system of crediting only.

In a market where the US no longer produces like it does, I find it fascinating patents are created and filed just so countries overseas can’t produce the products without substantial licensing fees.

This has major consequences, including how stupid people are to understanding.

Take this comment for example:
It became a patent and copyright beating site I think when Mike got solidly on the “FREE!” bandwagon. That whole notion requires that most rights granted to authors, creators, developers, and trademark holders gets tossed out the window.

It was written by Weird Harold, but before you dismiss this author, keep in mind hundreds of thousands of people think this way because they believe, incorrectly, people have the right to own ideas.

People like Harold don’t create. Instead, they opt to believe those who do should have rights to dictate to others the control over viewing, copying, editing, reading, or enjoying their works, which goes against the very idea of why the work was created in the first place.

The Obama Administration needs to remove current copyright and patent rules and change them for innovation.

Because innovation is necessary for NEW BUSINESSES to form, which is needed in this economic crisis.

But this will never happen when businesses are fighting over an idea.

Oh, and Weird Harold, one more thing to throw at you: The patent and copyright system instills a monopoly on such ideas in which only ONE company can manufacture the good or license it out. In the United States, monopolies are illegal.

So why isn’t owning the patent/copyright illegal?

Wysong Blocks First Amendment Rights says:

I checked Wysong’s website. They have a blog, but you cannot post unless they edit it first. They won’t let other people comment if it is not what they want to say. Wysong is probably wrong and just trying to get sympathy since they got caught. I will boycot them because you cannot comment on their postings!! I suggest you boycot them to.

anymouse says:

RE: Facts and Fantasies

“The patent in question is 5,968,569 (per Wysong), which relates to a method of preparing probiotic pet food. The patent is not for “probiotic dog food,” even though ALL of the evidence presented on Wysong’s web site (as of today’s date) merely points to the existence of the word “probiotic” in various locations. The existence of probiotics does not logically lead to the conclusion that the processes used to incorporate the probiotics in the pet food were the same. Ergo, Wysong’s “proof,” to the extent it is provided on its web site, is not compelling.”

Do you have any common sense at all? If the processes used to incorporate the probiotics in the pet food were not the same, THEN WHY THE HELL IS NESTLE SUING WYSONG? Obviously their lawyers think the process being used is close enough to their ‘new’ patent (on what Wysong has been doing for years) that they can get away with suing over it, so how can you honestly say that Wysong didn’t come up with this process first?

Let me break it down a little more so you can grasp the subtlety (using arbitrary dates as an example). Company A starts doing X in 1980, in 1995 Company Z patents the process of doing X and sues Company A for violating it’s patent on the process of doing X…. If Company A was not doing X, then there would be no reason for Company Z to sue them, and if they had already been doing X for the last 15 years, then there is no reason Company Z should have been granted a patent on doing X. The fact that Company Z is suing Company A basically validates the fact that they think Company A has been doing X for at least 15 years before their patent….

Is being repeatedly dropped on your head the first step in getting into law school, or is it just part of the process of educational process for lawyers?

Anonymous Coward says:

Re: RE: Facts and Fantasies

anymouse:

The patent in question is 5,968,569 (per Wysong), which relates to a method of preparing probiotic pet food. The patent is not for “probiotic dog food,” even though ALL of the evidence presented on Wysong’s web site (as of today’s date) merely points to the existence of the word “probiotic” in various locations. The existence of probiotics does not logically lead to the conclusion that the processes used to incorporate the probiotics in the pet food were the same. Ergo, Wysong’s “proof,” to the extent it is provided on its web site, is not compelling.

Do you have any common sense at all? If the processes used to incorporate the probiotics in the pet food were not the same, THEN WHY THE HELL IS NESTLE SUING WYSONG?

You are making assumptions based on…? Nothing? I assume that 15 years earlier than Purina filed for their patent Wysong had a process for incorporating probiotics in their pet food. However, I do not assume that Purina’s process is the same as Wysong’s process. If Purina’s later developed process is the same as Wysong’s original process, then Wysong will easily win.

However, if Wysong changed their process after 1999, then guess what? Purina has a case. This line of reasoning is not “common sense,” it is logic, which you neglected to use.

Obviously their lawyers think the process being used is close enough to their ‘new’ patent (on what Wysong has been doing for years) that they can get away with suing over it, so how can you honestly say that Wysong didn’t come up with this process first?

How can you honestly say that Wysong came up with the process first since you do not know what Wysong’s process was prior to 1999?

Let me break it down a little more so you can grasp the subtlety (using arbitrary dates as an example). Company A starts doing X in 1980, in 1995 Company Z patents the process of doing X and sues Company A for violating it’s patent on the process of doing X…. If Company A was not doing X, then there would be no reason for Company Z to sue them, and if they had already been doing X for the last 15 years, then there is no reason Company Z should have been granted a patent on doing X. The fact that Company Z is suing Company A basically validates the fact that they think Company A has been doing X for at least 15 years before their patent….

Let me break this down for you in even simpler terms, since you seem to have a logic problem.

Company A develops process A in 1980.
Company B patents process B in 1995.
Company A is found to be using process B in 2005.

Now, if process B is truly the same as process A (which Wysong has provided ZERO evidence for on their web site), then Wysong will prevail.

However, if process B is a different process from process A and Company A was not using process B until after process B was patented, then guess who is in trouble?

Is being repeatedly dropped on your head the first step in getting into law school, or is it just part of the process of educational process for lawyers?

I have no idea about lawyers, since I am not one. However, your insults carry virtually no weight given that you have been unable to apply a little logic to the possibilities. You, as with so many others, are buying a story at face value without asking some simple questions as to whether there might be another interpretation or point of view.

Keeping it Real says:

Wysong

Doesn’t Nestle get the benefit of the doubt?
They got the patent.
Why is Wysong complaining about getting sued?
Wysong is not denying that they infringe the patent. They say the patent is no good. If it is no good, why could nestle get the patent?
Sounds like Wysong should talk to my 4 year old son, the one that tried to lie his way out when he got caught stealing cookies.

Re Mischa says:

Wysong

Wysong says they had it 15 years before. Is that true?
Could it be that they just claim that?
If they had it 15 years before, why did they not patent it?
If they had it 15 years before, why did the patent office give the patent to nestl?
Don’t be fooled by these guys that wait for big companies to do all the reserach and then try to steal the results. Just because they say it does not make it true.

CheseCake says:

Nestle Wysong

This it typical. Wysong gets sued and launches a sympathy blitz in the media.
Why don’t you hear from Nestle? Because they are professionals that work from the facts.
It looks like Nestel has the patent, Wysong is infringing, and there is a suit.
Wysong starts whining on the web. David vs Goliath – what a bunch of bull.
Nestle just does the work and enforces their patent. There is nothing wrong with enforcing a patent.

Anonymous Coward says:

Wysong

Yes, go to wysong.net and protest their unethical conduct in filtering comments about this issue. If they were right or ethical, they would let all comments in!!!!!!!!

I wish i bought their products so I could never buy them again. I don’t have a dog but think companies like wysong are the problem with the patent system.

Derek Kerton (profile) says:

Wow, Overseas Spambot?

Wow. Did the comments ever start to change after around #69!!

It suddenly went from semi-reasoned discourse to a clear astroturf campaign on the Nestle side. What a very high number of brief, silly, pro-Nestle comments, written in very poor English. How is such a response organized? A single repeat poster? An offshore PR comment spam service? Mike, any info from the IP addresses? This issue is almost as important to me as the lawsuit.

Frankly, I’m not sure about who is in the right in this case, but I credit the pro-Nestle poster in comment #98 with summing the situation up very well.

Anonymous Coward says:

Re: Wow, Overseas Spambot?

Ummm…I am not a “pro-Nestle” commenter. I am a pro-logic commenter. Nestle may well be pulling a fast one. The only problem I have is that Wysong is crying about how they were wronged, and yet their evidence that they had the process spelled out in Nestle’s patent first is not only lacking, but missing (to the extent they tried to defend themselves on their site).

If Wysong plans on winning in court, they need to show either that their current process is not the same as is claimed in the patent, or that they had the process prior to Nestle’s filing, in which Nestle’s patent could end up being worthless.

Anonymous Coward says:

Re: Clearly?

Confused:

Okay, did you compare the process they show in the video, which you do not know the date of, but you can clearly see it was not from 2000 or later (I bow to your ability to not be able to date a video, but to know it was not from 2000 or later), and compare it to the language of the claims? Do they appear to be the same process?

Incidentally, if there is no way to attest to the date of the video, then there is no way they have proof. Seems like we have been down this road before.

kamikaze goldfish says:

Blaming patent system?

Mike Masnick seems to be blaming the patent system for this….did the the original company get a patent? I doubt it, if nestle was able to patent ‘the exact same process.’ So I don’t think you can blame the patent system for nestle’s bad behavior, because the patent system could have saved the small business. If they’d had a patent ‘long before’ nestle, this wouldn’t have happened. This is just another case of the internet giving voices to morons.

Confused says:

Clearly?

You are exactly right Anonymous Coward, I have no way of telling that video was not recorded yesterday.

So I did some more research and it seems wysong has alot of books about probiotics, and so do alot of others.

http://jn.nutrition.org/cgi/content/full/128/12/2730S

also

http://www.preciouspets.org/truth.htm

These links talk about adding probiotics, it even looks like wysong describes a machine to do this in one of his books from 1993. (guessing that is what this whole thing is about)

So I searched for this book they talk about “Rational for Animal Nutrition”

I am going to see if our libary has it in stock. My question is why is this not posted on thier site. They really should present a better case with their press release. That I do agree with.

Anonymous Coward says:

Re: Clearly?

Confused:

Exactly so. If they have a case, they need to present it in a coherent fashion that sways us intellectually rather than emotionally. The emotional appeal may be great for headlines and People magazine, but decision makers need facts and wisdom.

I leave you with these quotations:

A lie told often enough becomes the truth. – Lenin

It is hard to believe that a man is telling the truth when you know that you would lie if you were in his place. – H.L. Mencken

If you would be a real seeker after truth, it is necessary that at least once in your life you doubt, as far as possible, all things. – Descartes

Nobody speaks the truth when there’s something they must have. – Elizabeth Bowen

I’m not sure I want popular opinion on my side — I’ve noticed those with the most opinions often have the fewest facts. – Bethania McKenstry

CheeseCake says:

Comments

Why would you want to stop a lawsuit? That is what the courts are for. How do you know what Wysong says is true? The patent office doesn’t issue patents on inventions that others made 20 years before (it can happen but is unlikely). If Wysong is correct, they will win. If not, the patent owner will win. Why would you want to sign a petition to stop the lawsuit?

x-wysong customer (user link) says:

Wysong plays good guy, writes books but is a hypocrit

Dr. Wysong writes books, definitely a little off from the normal rationale, with his more recent book and MANY articles found online all over, he encourages employees to be loyal to their employers, to think outside the box and try to consistently help the company, encourage sales, to live their employer’s company on their own time as much as at work, to always go the extra mile for their company, etc etc – guess what? One of their employees, talked me and many many many others into using Wysong, educated hundreds of people, knew the products inside and out, promoted Wysong on her own website, promoted it on yahoo and MSN groups, talked it to her family, friends, and strangers. She believed in this company wholeheartedly and ruthlessly defended it. But guess what, she was canned for putting up a website http://apps.facebook.com/causes/231005/50069849?m=6d54c0aa that encouraged people to support Wysong after being told by a fellow employee (a newbie computer geek no less who was apparently brown nosing and looking to point out all the screw ups HE could single handedly fix [I bet wonder how many ‘screw ups’ he created to make himself look good]) and actually asking permission both from him and the president there. Being told anyone could do whatever they wanted on their own time but Wysong themselves could not do anything other than the official press releases and that he had verified this with the boss. Funny less than a week later she was canned and this was a primary point used against her. So they aren’t such the good guys, looking to can good employees for doing no more than supporting their company and offering no recourse, asking no questions, just determining through this tech guy I guess that she was violating company policy and damaging their cause with Purina. Funny, private time apparently is to be controlled by this company too.

I sure wish I had employees who followed my published recommendations to a T and put the company first on their own time!!!! If this company is this loyal to its employees, I can bet there is more to the story with Purina (not that I would feed their junk either).

Had reliable sources for this and find their ’causes’ to fire a long time loyal employee (while others in the company also participated) for such trumped up nonsense very sad. If you need money and need to do layoffs, do them, don’t screw people over, take away a reference, deny unemployment etc for what is so obviously a set up situation and the response to it was well within reason, but if there is no one there to ask that counts or cares, there is no one there to prevent fraud against an employee (heck better to just use the information shared against the employee at a later date) or many other issues that could come about.

Their advertising claims to have teams of veterinarians working there doing research. I visited the company. There is not one single VET working there, other than Dr. Wysong who comes in when he feels like it, and has no personal contact with customers. Some barely trained technicians with only one or two with any credentials that would even make sense to a pet food company, let alone to make recommendations to PEOPLE! So one of their biggest arguments to other companies isn’t much better in their little company either. Not saying their stuff is bad, just saying the folks that run that place sure could take a few lessons in reality and humanity.

There’s always more to the story.

Sorry, but coming across this article just set me off after hearing my favorite tech there was ‘no longer there’ and asking around – amazing what I learned and I haven’t even talked to her yet!!!!

Jeff

j.j. says:

Re: Wysong plays good guy, writes books but is a hypocrit

Jeff,

I don’t know where you get your information from, but its ridiculous. Frankly, I’d be embarrassed for wasting so much time telling people things that aren’t true. I’ve known this family and this company for years, and to even suggest that they are uninvolved or somehow lost on the ethics of business is absolutely off-base. You couldn’t be farther from the truth. And I’ve heard about your aforementioned friend, who was fired, and about the number of other much more significant reasons she was let go. That isn’t what this forum is about — but hopefully you’ll find out the whole truth.

Dr. Wysong built, with his own hands, a vet clinic in Midland and lived and worked there while he built the Wysong brand from the ground up. That you even suggest laziness, or as you put it: he “comes in when he feels like it,” shows you have really no grasp on the internal structure at Wysong. Furthermore, your comments regarding “barely trained” staff only tells me that you have little experience with what “trained” means. Do you often spend time at human and pet health-food headquarters? I felt the need to step in, considering how ignorant the comments are.

To doubters: Regarding the prior art. It DOES exists, and I believe it will prevail in court.
Lets just hope this mega-company will not run an honest, hard-working, company that strives to bring longevity to our lives and the lives of our pets into the ground with financial loop-holes and litigation-bullshit.

Nicole says:

After Investigating

After researching this, it appears that Wysong has give only its side of the story. They say they had probiotics in the 1980s but there is nothing to show that they are not just saying that. I looked and they did not file any patent applications and there are no publications. It looks like they got caught doing something that was patented and are trying to get off the hook by getting sympathy. I suggest that everyone heck the facts before supporting Wysong.

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