Texarkana doc says supplier stole idea for poultry sanitizer

Marilyn Tennissen Dec. 20, 2007, 5:47am

Texarkana resident B. Eugene Guthery, M.D., claims he invented a formula to sanitize poultry using organic acids that allow it be used in meat for human consumption. But Dr. Guthery alleges that when he contacted the supplier of the organic acid he needed for his invention, the supplier took his idea and had its own patent issued.

According to the plaintiff's original complaint, filed Dec. 12 in the Texarkana Division of the Eastern District of Texas, Dr. Guthery's inventions specified a formula and method utilizing fatty acids in combination with an organic acid. One of the organic acids for use in the formulation was acetic acid, the same acid found in common vinegar.

His invention was patented by U.S. Patent No. 5,234,703 on Aug. 10, 1993. A continuation of the patent was issued Nov. 15, 1994, as U.S. Patent No. 5,364,650.

In subsequent work to improve the formulation, Guthery determined that a precursor of acetic acid existed, namely peracetic acid, which oxidizes and provides improved antibacterial quality while still remaining safe for human consumption.

The suit continues that in order to confirm his concept of peracetic acid for use in poultry sanitization, Dr. Guthery sought a commercial source of peracetic acid and found that FMC was the primary vendor of peracetic acid in the U.S.

According to its Web site, FMC Corporation is a diversified chemical company with leading positions in agricultural, industrial and consumer markets. Founded in 1883, FMC states that it uses an array of advanced technologies in research and development to improve the delivery of medications; enhance foods and beverages; power batteries; protect crop yields, structures and lawns, and advance the manufacture of glass, ceramics, plastics, pulp and paper, textiles and other products.

Guthery says he request a shipment of the acid through Lisa Kurschner at FMC, who had to give approval for transportation because of peracetic acid's explosive properties.

Guthery claims Kurshner needed to know the reason for his shipment, so he gave a detailed explanation of his work on poultry and his intention to use the acid to improve the killing of bacteria on poultry. Guthery said he received the requested shipment and another at a later date.

"Unbeknownst to Dr. Guthery at the time and after the communications with FMC's representative, defendant FMC filed a patent application which claimed use of peracetic acid to kill bacteria on poultry," the original complaint states.

The complaint says FMC was issued U.S. Patent No. 5,632,676 on May 27, 1997. Kurshner and George Diken were named as inventors.

Guthery believes his conception as to the use of peracetic acid for poultry sanitation pre-dated any work by FMC and that he is entitled to be named as a joint inventor on the patent.

The first count of the complaint requests that the Director of Patents issue a certificate correcting the '676 Patent to include B. Eugene Guthery as an inventor.

In Count II, Guthery requests that the Patent Office should declare the '676 Patent unenforceable due to FMC's failure to disclose information about Guthery's work.

County III alleges misappropriation because FMC never initiated or conducted research on poultry sanitation using peracetic acid until Guthery spoke to Kurshner. Count IV alleges that the defendant's acts were willful and deliberate.

Guthery is seeking compensatory, punitive and exemplary damages, fees, costs and other relief.

D. Scott Hemingway of Hemingway & Hansen LLP in Dallas is representing the plaintiff.

The case has been assigned to U.S. District Judge T. John Ward.

Case No. 5:07-CV-186-TJW

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