Kemin files suit for lutein patent

The maker of branded FloraGlo lutein claims OmniActives is threatening the intellectual property Kemin was in fact granted through US patent 5,382,714.

The Des Moines, Iowa-based company filed suit against OmniActive July 17 at the US District Court for the Middle District of Florida.

As in all patent disputes, the crux of the issue is the cumulative investment into research and development, as well as the subsequent potential drain in sales an infringement represents.

"Kemin spent considerable resources in dollars and years of staff time to develop the patented FloraGlo lutein ingredient," Kemin product manager Craig Maltby told NutraIngredients-USA.com The patent in question protects the 'process for isolation, purification, and recrystallization of lutein from saponified marigold oleoresin and uses thereof'.

While the court has not ruled or ordered in the case yet, OmniActives says it will "vigorously press its defenses at all appropriate legal platforms" .

The company, headquartered in Mumbai, India, insists it took into consideration the scope of Kemin's patent so as to ensure its activities were well-clear of its parameters.

"Having made deep investments in R&D, OmniActive respects intellectual property, and we have offered and sold our Lutemax free lutein range in the industry after ensuring uniqueness of our IP, patents and due diligence," OmniActives managing director, Sanjaya Mariwala told NutraIngredients-USA.

"We believe that there is no merit to the contentions by Kemin - OmniActive's Lutemax free lutein product is covered by the 6,743,953 patent and other patent pending technologies, which describes a very different product and process than the 5,382,714 patent."

The 714 patent at issue in the OmniActive suit was licensed exclusively to Kemin through a research collaborator and Catholic Univ. of America.

However, the company is protecting the timeframe within which it could still lose out on some of its investment in the antioxidant ingredient.

"FloraGLO Lutein is the largest volume product in Kemin Health's portfolio ," said Maltby.

"So it affects a significant portion of Kemin Health's business."

Derived from marigolds, FloraGlo is marketed for its potential to support eye and skin health.

OmniActives markets its Lutemax range of free lutein, lutein esters and zeaxanthin primarily for eye health.

The company also has a patent-pending beadletting technology for lutein and lutein esters, said Mariwala.

"OmniActives manufactures the patent protected Lutemax range… the world's first, and only complete source of both free lutein and lutein esters for food fortification and dietary supplementation," states the company on its website.

According to Mariwala, OmniActives only indirectly learned of Kemin's suit via press releases.

"Kemin Foods and our parent company Kancor are familiar with each other," said Mariwala.

"Therefore, the manner in which they chose to express their complaints and concerns through the court action about is certainly unusual."

OmniActives holds a patent for free Lutein (US Patent 6,743,953 for the preparation of xanthophyll crystals) as well as a patent for lutein esters (US patent 6,737,535 for trans-lutein enriched xanthophyll ester concentrate and a process for its preparation).

Kemin holds a second US patent for lutein - 5,648,564, "Process for the formation, isolation and purification of comestible xanthophyll crystals from plants" - as well as a number of lutein patents around the world.