On October 6, 2016, Kemin Industries, Inc. and Kemin Foods, L.C. (collectively, “Kemin”)—both of Des Moines, Iowa—filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.
The complaint alleges that OmniActive Health Technologies of India and OmniActive Health Technologies, Inc. of Morristown, New Jersey (collectively, “OmniActive”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain food supplements and vitamins, including ocular antioxidants and components thereof and products containing the same that infringe one or more claims of U.S. Patent Nos. 8,815,955 (the ’955 patent) and 9,226,940 (the ’940 patent) (collectively, the “asserted patents”).
According to the complaint, the asserted patents generally relate to protecting the retina from damage due to harmful blue light and ultraviolet light by the use of ocular antioxidants, such as lutein and zeaxanthin. In particular, the ’955 patent relates to methods of treating ocular disorders with ocular antioxidants, and more particularly to treating age-related macular degeneration in subjects, including subjects with hyperopia or astigmatism, with ocular antioxidants. The ’940 patent relates to methods of reducing blue and ultraviolet light damage to the eyes of subjects, including subjects with certain eye conditions, by administering ocular antioxidants.
In the complaint, Kemin states that OmniActive imports and sells products that infringe the asserted patents. The complaint specifically refers to Lutemax 2020 as an infringing product.
Regarding domestic industry, Kemin states that it makes and sells within the U.S. nutritional supplements that practice at least one claim of each of the asserted patents, including products sold under the trade name FloraGLO. Kemin further states that it has made significant investments in plant, equipment, labor, and capital in the U.S. relating to products that practice the asserted patents, and that it continues to invest heavily in relevant research, development, and manufacturing in the U.S. Kemin refers to a confidential declaration submitted with the complaint to support its domestic industry allegations.
As to related litigation, Kemin states that the asserted patents are the subject of a pending district court action filed by OmniActive Health Technologies, Inc. against Kemin in the U.S. District Court for the District of New Jersey. Kemin further states that it has been involved in prior litigation against OmniActive on unrelated patents.
With respect to potential remedy, Kemin requests that the Commission issue a limited exclusion order and permanent cease and desist orders directed at OmniActive and related entities.