January 30, 2012 — KonaRed has filed amended counterclaims in the patent case started by VDF FutureCeuticals and pending before the Hawaii Court. The Court last month clarified what must be pled to claim VDF FC engaged in tortious interference and inequitable conduct. KonaRed has met those requirements by this refilling, and the now-strengthened counterclaims against VDF FC have been filed.
“VDF FutureCeuticals (“VDF FC”) has exposed themselves and their weak legal strategy with deceitful rhetoric and juvenile bluster,” said Shaun Roberts, the CEO of Kona Red. “They talk of procedural tactics designed to defer actions as a way of avoidance, but it is they who are avoiding the real issue by refusing to compete on a level playing field in the market place.”
“Rather than conduct an unnecessary contest of accusations, let us look at the facts,” said Steven M. Schorr, KonaRed”s CSO/COO. “First, we were never infringing on the patents. Second, we recognized that the patents themselves were flawed and invalid. So, consequently we indicated that we would move to reexamine, but first suggested the parties try to resolve the dispute. VDF FC refused. Then, their original law firm Fish & Co., LLLC dropped out of the case, when it was alleged that their patent counsel had obtained one of the patents through inequitable conduct (rather a smoking gun I should think). So, we filed with the USPTO for the re-exam. Subsequently, we moved to stay the Hawaii case pending the decision of the USPTO, which the Court agreed to do (http://docs.justia.com/cases/federal/district-courts/hawaii/hidce/1:2011cv00288/96392/48/?ts=1325066635 ). We think this was a very logical progression in the case. Recently, the USPTO not only accepted the re-exam, but rejected all of the claims of all three patents at issue in the case.”
“How Mr. Hunter can spin this development into a victory for his company is beyond comprehension” said Mr. Roberts. “This case is not an issue of procedure nor of statistics as VDF FC would suggest. Neither will name calling or false pretensions save the patents of VDF FC if the USPTO sees fit to confirm its rejection of the claims of all of the patents at issue, and potentially invalidate or narrow those claims.”
KonaRed holds that the fruit of the coffee plant without the bean has been used historically for over 500 years, both as a tea or extraction and as a food. In Ethiopia and Yemen, before the bean was roasted, the fruit was used in a drink called Qishar. In modern times, there are ample examples of prior art indicating that all of the techniques claimed by VDF FC were already patented. KonaRed has pointed this out to the USPTO and they have agreed, and have demonstrated this by rejecting all of the claims of the patents at issue.