Faked Test and Inoperable Process Dooms Patent

Posted on | March 20, 2008 | No Comments

2008-1203 Use Techno v. Kenko USA
ND/CA 06-CV-02754

Plaintiff Use Techno appeals the grant of summary judgments in favor of defendants. Use Techno et al. are in the business of, and have patents related to, extracting corosolic acid from Banaba plants for use in lower human blood sugar levels.  They sued defendants Kenko USA and others for patent infringement, false advertising, and a declaration that defendants’ patent was invalid.  The court previously granted defendants summary judgment of no direct infringement as to one of the patents. 

Magistrate Judge Elizabeth LaPorte then found plaintiffs’ other patent invalid for enablement and inequitable conduct.  On enablement the court found that the extraction process described in the patent could not yield a corosolic content within the claimed range; as for inequitable conduct, the evidence showed that a clinical test described in the patent did not actual take place.  The court then granted defendants summary judgment on the false advertising claim because plaintiffs “failed to provide any expert reports on damages or to disclose any damages theory or computation of damages in initial disclosures or in discovery responses.”   

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