Here's Wysong's Answer Docket Entry 17 & Counter and Nestle's Answer to it Docket Entry 21:
*Wysong's Amended Answer is too large to post, if anybody wants a copy of Docket entry 28, just let me know & I'll email it to you.Excerpt from Docket Entry 28: Wysong's Amended Answer
(which IMO should be required reading for ALL of the PFC's):
COUNT III - SHERMAN ACT VIOLATIONS/PATENT MISUSE AND ATTEMPT TO MONOPOLIZE
COMES NOW defendant/counterclaim plaintiff Wysong Corporation, by and through undersigned counsel, and for Count III of its counterclaim respectfully represents unto the Court as follows:
41. Wysong incorporates paragraphs 1-40 of the Counterclaim as if more fully set
42. As more fully stated in paragraphs 15 through 29, supra, Nestec obtained Claims
1-17 of the ‘569 patent by knowingly and willingly failing to disclose to the PTO certain prior art, existing invention, and/or existing products which utilized the same or substantially the same methods, processes, and end products that are contemplated by Claims 1-17 of the ‘569 patent.
43. On information and belief, neither Nestec nor any of its subsidiaries actually offers for sale any dried, ready-to-eat pet food kibble comprising a gelatinized starch matrix with a lipid coating including a probiotic microorganism, but instead seeks to generate revenue only by threatening infringement litigation by and through license agreement with manufacturers of probiotic pet foods.
44. On information and belief, Wysong believes that Nestec seeks to obtain through
threats of expensive and time consuming litigation license agreements from each of at least 25 companies that use, or advertise the use, of probiotics in the sale of natural pet food products with the intention of fixing prices, limiting competition, inflating prices and attempting to control, directly or indirectly, the probiotic pet food market in the United States.
45. Despite the fact that Nestec and its parent, Nestle S.A., and its wholly owned
subsidiary, Nestle Purina Pet Care Global Resources, Inc., are aware that Patent ‘569 was obtain without full disclosure of Wysong’s prior art, Nestec has threatened protracted litigation over the patent which was fraudulently obtained by concealing Wysong’s prior art and through misrepresentation and failure to disclose material facts at the time the patent application was filed in 1997.
46. Because Nestec, by and through its parent, Nestle, and its subsidiary, Purina,
dominate a large part of the pet food market in the United States, the threatened patent suits coupled with proposed licensing agreements are nothing more than an attempt to control and to monopolize the probiotic pet food market.
47. Nestec has conspired with its parent Nestle, and the parent’s wholly owned subsidiary, Purina, to destroy competition in an attempt to control the market in the probiotic natural pet food market in the United States through threatened infringement litigation with Wysong and other probiotic pet food manufacturers and distributors.
48. The probiotic pet food market consists of various manufacturers of natural pet foods, including Wysong, who manufacture and sell natural probiotic pet food products to distributors for wholesale and retail distribution in the United States.
49. The probiotic pet food market is a nationwide market which includes various trade mark products which use the probiotic pet food process.
50. Nestec has sought to destroy competition in the probiotic pet food market through the licensing, or attempted licensing, of its improperly obtained and invalidly patented product(s) (i.e. method) from many, if not all, of the competing manufacturers and distributors of natural pet food products, including Wysong.
51. Nestec has tried through its licensing scheme to limit the sale of probiotic products unless such products are covered by its licensing agreement despite the fact that it has not identified any specific product or products it contends are in conflict with its patent.
52. Nestec has engaged in predatory and anticompetitive conduct through threatened infringement litigation in an attempt to dominate and control the probiotic market for pet food.
53. Nestec has engaged in predatory and anticompetitive conduct through the licensing or attempted licensing of its improperly obtained and invalidly patented coating process and/or licensing of product(s) of competing manufacturers and distributors, including Wysong.
54. As Nestec holds the ‘569 patent, it can lessen or destroy competition in the U.S. market for dried, ready-to-eat pet food kibble comprising a gelatinized starch matrix with a lipid coating including a probiotic microorganism by threatening expensive and lengthy litigation against competitors with the intention of monopolizing the domestic market for these products.
55. These actions directly affect, artificially inflate and attempt to control the market for dried, ready-to-eat pet food kibble comprising a gelatinized starch matrix with a lipid coating including a probiotic microorganism, as competitors must pass-on the expenses of the licensing agreements to the consumer and mass distributors.
56. Nestec has improperly sought to enforce the ‘569 patent against Wysong through the filing of the complaint, when Nestec knew or should have known that the ‘569 patent is invalid and unenforceable in light of the proceedings before the EPO during the prosecution of related patent applications, EP 97200830 and EP 97200047, to which the ‘569 patent claims priority.
57. Nestec has improperly sought to enforce the ‘569 patent through the filing of the complaint, when Nestec knew or should have known that the ‘569 patent is invalid and unenforceable as anticipated or obvious, or for otherwise failing to comply with the U.S. Patent Laws, including 35 U.S.C. § 101-103, 111-113, and 133.
58. Nestec’s false assertion over patent rights that were known or should have been
known to Nestec to be invalid had a substantial adverse effect on the price of probiotics pet foods within the market to Wysong’s disadvantage, decreasing the sale of its products and attempting to fix prices and thereby caused harm to Wysong, in violation of Section 1 of the Sherman Act and Section 3 of the Clayton Act.
59. If Nestec succeeds in its scheme to control the market through its licensing
agreements, the effect will be to artificially inflate and fix prices as the smaller companies are squeezed out of the market prermitting Nestec to set the minimum prices for probiotic pet food products and even eliminate these products in favor of its pet food products which do not use probiotics.
60. In summary, Nestec, alone and in combination with its parents and subsidiaries, have combined and conspired to fix prices, to control and eliminate competition, and to unreasonably restrain interstate commerce in the probiotic pet food market in the United States, directly causing injury and damages to Wysong by disparaging its products and its right to
continue to manufacture, sell and distribute probiotic products resulting in the diminution of sale ands and other damages which are the direct proximate result of the actions of Nestec and its parent and its subsidiary as Wysong concedes that this claim and the following claim for vertical and horizontal price fixing are premised on the defense to the ‘569 patent claims which have been challenged in the United States Patent Office and in this court as stated herein.
61. Nestec’s Sherman and Clayton Acts violations are such the Wysong is entitled to treble damages pursuant to Section 4 of the Clayton Act.
WHEREFORE, Wysong demands judgment in its favor on all Counts of the Counterclaim and award the following relief to Wysong:
A. Declare that Wysong’s products and use of probiotics do not infringe Claims 1-17
of the ‘569 patent;
B. Declare that Claims 1-17 of the ‘569 patent are invalid and unenforceable;
C. Declare that Nestec S.A. has violated Section 1 of the Sherman Act [15 U.S.C. § 1] and Section 3 of the Clayton Act [15 U.S.C. § 14] and abused and misused its patent rights in an attempt to control the market
D. Award both actual and punitive damages to Wysong, including treble damages
under the Sherman and the Clayton Acts, namely, 15 U.S.C. § 1 and 15 U.S.C. § 14;
E. Award Wysong attorneys’ fees and costs associated with the defense of the
Complaint and the bringing and prosecution of the Counterclaim; and
F. Order such other relief this Court deems just and proper.