The postponement will see the complaint process lasting almost a year, after the company filed a patent infringement complaint last April. The complaint relates to the sale and importation into the US of certain sucralose, sweeteners containing sucralose and related intermediate compounds.
The case is significant because if the company loses, other sucralose manufacturers would be much freer to enter the market, which has until now been controlled for the most part by Tate & Lyle.
Optimism on both sides
Following a postponement earlier this month, Tate & Lyle said it did not know why the ruling has been pushed back and would not speculate on what its postponement implies.
One of the manufacturers named in the filing, Guangdong Food Industry, said that it was looking forward to an “anticipated positive final ruling”.
Sanyong Wang, a corporate officer at Guangdong Food Industry said: “[Guangdong Food Industry] was the first company to manufacture sucralose outside of the U.S.A and continues to be committed to meeting its customer needs of high capacity and superior grade sucralose in the growing sucralose market in the United States and elsewhere, and remains confident of a positive outcome once the ITC issues its final determination."
The preliminary determination
Tate & Lyle’s original sucralose product patent was filed in 1976 but it has since expired, opening the product up to competitors. Despite this, the company still owns a host of patent rights to the process for manufacturing the sweetener.
Tate & Lyle’s initial claim accused manufacturers of using its patented processes for making sucralose, but a judge disagreed that any patents had been infringed in the preliminary determination in September.
A final ruling from the six-person Commission would be binding, and close down any prospect of a further appeal.
Manufacturers named in the filing include Changzhou Niutang Chemical Plant, Hebei Sukerui Science and Technology and Guangdong Food Industry.
Meanwhile, a similar case in Illinois Federal District Court, which was put on hold due to the ITC case, could still be reopened even if the Commission finds no infringement.
Patents for competitive advantage
In the last financial year, up to the end of March 2008, sucralose accounted for 21 percent of Tate & Lyle’s operating profit. It has stated that one of the key ways in which it defends its competitive advantage is its patent portfolio which includes process, product form and blend patents.
Globally, the high intensity sweetener market is worth $1.3bn and sucralose is the number one sweetener by value in food, with a 36 percent share. North America is the world’s largest market for high intensity sweeteners and sucralose is the leader with a 48 percent share of the market.
Tate & Lyle markets sucralose, the best-selling low-calorie sweetener in the US, under its Splenda brand.