Tuesday, February 10, 2009

David vs. Goliath in 2009 - Let the battle commence: Nestle/Purina vs. the Natural pet food industry (Featuring: Wysong as "David")

While the business of natural and healthy pet food is at one side tremendously interesting and can be highly rewarding, it is at the end of the day for all parties directly involved what some would call “the same story day after day”. Sure if taken seriously, it makes us learn every day something new, just like the saying goes: One never stops learning. And it most certainly makes you feel good when you see that with the knowledge obtained you can indeed make a difference in a pet’s life. But aside from pet food recalls, which unfortunately have become an almost daily occurrence it is a pretty quiet life. Don’t get me wrong, I don’t need any sensations, but a little spice once in a while certainly would be welcome as a refreshing change. And since I am not expecting any breaking news and events, it came as a big surprise when this past Friday I received an e-mail from Wysong. Now here’s something happening what you don’t see every day. For starters, see for yourself what it was about, here is a reprint:

e-mail received from Wysong Friday 02/09/09 Part 1

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.

e-mail received from Wysong Friday 02/09/09 Part 2 Official Press Release

FOR IMMEDIATE RELEASE: Wysong Corporation 989.631.0009 / 989.631.9280 Wysong site
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.
Wysong Corporation

You see now what I was talking about? I am pretty sure you agree with me, this is big time news. As you all know, I am a very enthusiastic fan not just of Dr. R.L. Wysong, D.V.M. himself with his extremely informative publications and books, but also of his company with its products, a true treasure chest of resources for optimal health. In addition I like the company’s philosophy and mission to encourage pet owners to think on behalf and in the best interest of not just their pets, but also for themselves. “Wysong uses business as a tool to do good, not as a mere opportunity for profit. In every way possible, Wysong attempts to make a better world and prevent disease and suffering by wise holistic approaches that respect nature and treat humans and pets as higher ethical and thinking creatures.” (Wysong as a holistic company). Simply said, a company offering products conceived by common sense, grounded in science and proven with results. Products that work, as I have proven to many of our customers time and time again.

Let’s just take a look at the mission statements of the 2 opponents:
Nestle/Purina states on their website:
Quote: “At Purina we're passionately committed to making pets' lives better.
At Nestle Purina PetCare, we're passionately committed to making pets' lives better. As the pace of change in pet care accelerates, our challenge is to lead with fresh, innovative approaches to making the lives of dogs and cats better. We are proud of our heritage, and we are constantly exploring new trends and ideas that define the future of pet care and of Nestle Purina.
Purina is a wholly-owned subsidiary of Nestlé S.A., Avenue Nestlé 551800 Vevey, Switzerland. “ End of quote.
Nestle on its website claims:
Quote: “Nestlé is committed to the following Business Principles in all countries, taking into account local legislation, cultural and religious practices:
Nestlé's business objective is to manufacture and market the Company's products in such a way as to create value that can be sustained over the long term for shareholders, employees, consumers, and business partners.
Nestlé does not favor short-term profit at the expense of successful long-term business development.
Nestlé recognizes that its consumers have a sincere and legitimate interest in the behavior, beliefs and actions of the Company behind brands in which they place their trust, and that without its consumers the Company would not exist.
Nestlé believes that, as a general rule, legislation is the most effective safeguard of responsible conduct, although in certain areas, additional guidance to staff in the form of voluntary business principles is beneficial in order to ensure that the highest standards are met throughout the organization.
Nestlé is conscious of the fact that the success of a corporation is a reflection of the professionalism, conduct and the responsible attitude of its management and employees. Therefore recruitment of the right people and ongoing training and development are crucial.
Nestlé continues to maintain its commitment to follow and respect all applicable local laws in each of its markets. End of quote.

Wysong says in it’s “Statement of Purpose” (Wysong Resource Book for Thinking People Page 2)
Quote: “Wysong is an organization dedicated to enhancing the health of humans, the animals in their care, and the environment in which we all live. Throughout the world, the short-sighted and selfish inclination to exploit the Earth as a limitless raw material is steadily unraveling the delicate natural web which is critical to healthful living. The mercantilist ethic of privatizing gain but commonizing consequences is incompatible with a sustainable healthy planet. We believe humankind has a fundamental fiduciary obligation to protect and ensure a better world for future generations. Wysong is actively engaged in research, product development, and environmental and nutritional health education. Research is intended to offer responsible alternatives which promote health as a number one priority, and products are designed in accord with the logic that ultimately all healing comes through nature.” End of quote

Now, let me ask you this: Your pet is suffering from disease. You are having problems with the commercial products available at mass merchandise marts and grocery stores. It appears to you as if your vet is not able to help you with his approach of prescribing “his” food. And now you are looking for a new beginning with an all new approach to health and well being. Which company would you follow? I think there is no need for me to say any more.

My initial response to Dr. Wysong, published on his site, was as follows:
“Hi Doctor: We will support you as much as we just can. To start with I will be commenting on our Blog and see if we can get the word out. Also included will be announcements in our monthly e-news. As a relatively young, but fast growing holistic pet nutrition on-line store we cannot afford any of the much needed financial support, however we will back you morally. Being a holistic pet food store offering only the healthiest and best pet products available on the market today, we proudly carry and quite successfully promote the entire Wysong pet product line. We have had great success in helping many pet owners who came to us asking for help for their unhealthy pets. In most cases, thanks to your products we were able to make a huge difference and today every Wysong customer of ours is a very pleased and satisfied one owning very healthy and happy pets. I think at this point it would be repetitive to say I am one of your greatest fans. We are sure that the current events will strengthen your position in the market even more and open many more eyes. This, at the end would be a victory on your part. Always remember, it was David who won. Please let us know if there is anything you want us to do to support you even more. Please feel free to add our site to your "List of other websites talking about David vs. Goliath"
Good luck and keep up the great work. Paul, The Pet Food Examiner”

Other responses on the Wysong site as of tonight so far range from being emotional to more factual, but all are common in one point: Undivided support for “David”.
Stay tuned as in nearest future I will discuss this “case” in more detail. The facts, the truth, the reactions. It is going to be very interesting. I also invite everybody to actively participate and express your very own opinion about this subject matter. Show your support for “David”. And if you don’t support him, sound off anyway. We love lively discussions. After all, I am convinced it is to benefit a very good purpose and supports one cause only: Regardless of whether it is Wysong or anybody else following the same holistic principles, it all is in the best interest of our beloved companion animals.

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