LATEST NEW VISION ATTACK WITH
XANGO SMASHING COUNTER ATTACK BELOW
XANGO PATENT INVALID IN U.S. PATENT OFFICE FINAL ACTION
SCOTTSDALE, AZ - MAY 16, 2005. The U.S. Patent Office issued its final written opinion rejecting all 81 claims in XanGo's Patent No 6,730,333. This action was taken despite multiple meetings with XanGo's in-house patent expert Steven Bean, it's outside patent law firm and the review of over thirty pages of memoranda and supporting affidavits filed by XanGo LLC, a Lehi, UT company. Specifically, a panel of three expert U.S. Patent Officers, consisting of the primary examiner, a supervisor patent examiner and a special program examiner, found that every one of XanGo's 81 claims were unpatentable. The Patent Office's rationale was concise - basically that there is nothing novel or patentable in adding several fruit juices together. The Patent Office also rejected XanGo's claim that they were the first to introduce mangosteen juice into the market, specifically concluding: "Thus, the rejection [of the entire patent] is proper. THIS ACTION IS FINAL." You may review the entirety of the rulings by going to the office government Patent Application Information Retrieval System at http://portal.uspto.gov/external/portal/pair. After this site comes up, enter application No. 90/007,178, and click on the image file wrapper tab, which will reveal an index of the document history. Afterwards, click on Reexam Final Rejection - 4/21/2005.
In May 2004, XanGo sued New Vision and subsequently its subsidiary, Vemma, both Scottdale, AZ companies, for patent infringement. The Patent Office's final action ruling dealt a serious blow to XanGo's infringement lawsuit. BK Boreyko, President and CEO of New Vision and Vemma, stated, "You don't have to be a lawyer to understand that if they don't have a patent, then they don't have a lawsuit for infringement. From the beginning of this lawsuit, I have maintained two points. First, that XanGo's patent would be invalidated because you can't patent fruit juices. Second, even assuming their patent was enforceable, New Vision's and Vemma's mangosteen juice product does not infringe on their patent. It has always been my opinion that this lawsuit is not about patent infringement. Rather, XanGo is frustrated and embarrassed that New Vision and Vemma have produced superior mangosteen juice products into the marketplace. The independent test results don't lie. Our product contains a full spectrum of natural xanthones derived from mangosteen and pericarp extract. In fact, it takes 14 bottles of XanGo to equal the xanthone content of one bottle of our product. It really is that simple. XanGo should never have put so much emphasis on their patent or the fact that they will be the only company selling mangosteen juice. Their credibility will be severely questioned. The bottom line is that New Vision and Vemma will always sell a mangosteen juice product and my R&D team will always make sure it's the best."
By contrast, the lawsuit filed by Morinda (now Tahitian Noni) against XanGo and a number of its top officers who were formerly Morinda employees, is moving forward. Contrary to the false rumors being circulated by XanGo that this case has no merit, the law firm currently representing Morinda in the XanGo litigation, Ray Quinney & Nebeker, is one of the most reputable law firms in the State of Utah and has been compiling evidence for over 12 months. Its lawyers have been featured in Utah Business Magazine's "Utah's Legal Elite" and included in the publication of "The Best Lawyers in America 2005-2006". In the lawsuit filed by Morinda, it alleges XanGo and its top officers stole Morinda's property interest in mangosteen while they were employed by Morinda. The company claims that all intellectual property rights in the XanGo juice product (s), and all intellectual property rights stemming therefrom, are the exclusive property of Morinda. Morinda therefore seeks a constructive trust be imposed upon all assets, corporate opportunities, benefits and profits unlawfully obtained by XanGo. The result, if Morinda prevails, is that all XanGo assets will be transferred to Morinda. Multiple depositions are currently under way of XanGo's alleged "partner," Wild Flavor, which will shed light on whether Morinda can prove its past officers/employees were working on XanGo business while still employees of Morinda. Since public records show that the trademark of XanGo was applied for approximately five months before these officers were terminated from Morinda, this should be an interesting case to follow over the next 12 to 16 months. Wild Flavors has already confirmed it is not "partners" with XanGo, as XanGo has repeatedly represented.
We are pleased that with the recent U.S. Patent Office ruling, we can all return our focus to the important issues for free competition in the market place, such as who has the better quality product, greater credibility and more stable future. New Vision has a ten-year history of success, honesty and top quality products backed by independent testing results. You can judge XanGo's credibility for yourself based on the developments during its brief history and pending litigation.
XANGO SHOOTS BACK!
Market leaders and innovators are often the subject of misinformation campaigns by frustrated or unprofessional competitors. Such is the case for XanGo, creator of the mangosteen beverage category and its leading product, XanGo™ Juice. XanGo’s phenomenal success makes us a target for struggling competitors.
New Vision’s May 16, 2005 statement is just the latest in a sad string of misinformation.
XanGo’s Patent Reexamination
In its May 16, 2005 statement, New Vision suggests that the Patent Office has completed the reexamination of XanGo’s patent (U.S. Patent No. 6,730,333) and that XanGo’s patent is no longer valid. This is reckless and incorrect. Those who understand the patent process can attest that the reexamination proceeding in the U.S. Patent Office is a lengthy process and did not conclude with the “final” action. Indeed, a “final” rejection is not fully upheld in the vast majority of reexamination proceedings.
A diagram of the reexamination process, which further refutes New Vision’s statement, is shown on the U.S. Patent Office web site at www.uspto.gov/web/offices/pac/mpep/documents/2200_2201.htm.
XanGo remains confident in a favorable outcome from the reexamination proceeding. Most importantly, while the reexamination proceeding is ongoing, the U.S. courts recognize XanGo’s patent as valid and enforceable.
New Vision’s “Mangosteen” Drink
New Vision is promoting misinformation about what is actually in its own mangosteen product. New Vision and Vemma, both owned and operated by Benson Boreyko, sell the same product under different names. On the label for its drink, New Vision claims:
“This . . . formula is made in a base of whole fruit mangosteen juice and pericarp [and] whole leaf aloe vera juice . . .”
In contrast, in court documents filed by New Vision in the patent infringement lawsuit, New Vision claims:
•“New Vision USA’s mangosteen product does not include as an ingredient any juice of any kind much less juice from fruit of a Garcinia mangostana L. tree . . .”
“New Vision USA’s mangosteen product does not include as an ingredient any juice of any kind much less juice from fruit of a Garcinia mangostana L. tree . . .”•“Aloe vera juice is not an ingredient of New Vision’s mangosteen product.”
“Aloe vera juice is not an ingredient of New Vision’s mangosteen product.”•“Defendants do not know, and therefore deny, that New Vision USA’s mangosteen product
“Defendants do not know, and therefore deny, that New Vision USA’s mangosteen product contains as an ingredient any pericarp, much less pericarp processed or ground from whole fruit pericarp.”
•“Defendants believe, but do not know, that the fruit from which the powder compound is extracted comes from the species of Garcinia mangostana L.”
“Defendants believe, but do not know, that the fruit from which the powder compound is extracted comes from the species of Garcinia mangostana L.”New Vision is saying one thing in court and another on its product label. How can New Vision claim that its product is superior when it apparently does not know the product’s ingredients?
In addition, contrary to New Vision’s statement, XanGo has successfully partnered with WILD Flavors to produce the industry’s leading mangosteen beverage, XanGo™ Juice. In fact, in its corporate publication, WILD Telegraph, WILD Flavors described its “exclusive partnership” with XanGo as one of its success stories.
New Vision’s Struggling Business
In addition to presenting inaccurate information in its statement, New Vision also fails to disclose the present circumstances of its own business. Just three weeks ago in open court, New Vision’s attorney stated that Mr. Boreyko had to funnel $3 million of his own money into the business last year. This fact is in contrast to Boreyko’s recent public statements about his past business success. Based on the most recent Dunn & Bradstreet reports, the 10-year-old New Vision company has lost 90 percent of its sales over the last eight years and continues to trend down.
New Vision’s attempt at a mangosteen drink was in response to XanGo’s category creation success. Faced with such formidable competition, New Vision has resorted to its unfortunate campaign of misinformation.
New Vision’s Commentary on the Morinda Litigation
New Vision resorts to misleading characterizations of a separate lawsuit between Morinda and XanGo. That New Vision would repeat the baseless legal claims raised against XanGo by Morinda shows how desperate it is to deflect attention from its own problems. In that lawsuit, XanGo filed a counterclaim against Morinda and others asserting claims for unfair competition, false advertising, trademark infringement, unfair and deceptive trade practices, defamation, and other claims. The only substantive ruling to date in that law suit was when the court sanctioned Morinda for failure to cooperate in discovery and for violation of a protective order. Based on that ruling, the court entered sanctions against Morinda and ordered it to pay XanGo in excess of $20,000 in fines and attorney’s fees.XanGo’s Market Leadership
XanGo created the mangosteen beverage category and was the first to market with a superior product. Our distributors and consumers illustrate the truth. By any measure of success –be it meeting attendance, product sold, distributor enrollment, or commissions paid – XanGo’s success speaks for itself.
Together we have built this magnificent success, and together we will continue to advance XanGo’s distributor network, sales and standing as the undisputable creator of the mangosteen beverage category. It is vital that we all remain focused on those admirable goals in the midst of these attempts to distract us.
If you have any questions about further misinformation from New Vision or other companies struggling to keep up with XanGo, please call your upline leaders. Thank you for your continued contributions to our coveted success.
Sincerely,
Gary Hollister
CEO
December 2004 RELEASE XANGO In Reply
FOR IMMEDIATE RELEASE CONTACT: Bob Freeze
XanGo, LLC
Ph (801) 816-8240
Cell (801) 330-6407
bob.freeze@xango.net
XanGo LLC Provides Update on New Vision Lawsuit
LEHI, UT—December 21, 2004—XanGo, LLC, a Utah company offering a patented dietary supplement beverage, XanGo™ Juice, made from the mangosteen plant, announced today an update on its federal lawsuit against New Vision U.S.A., Inc. and related parties. In the lawsuit filed in May 2004, New Vision is accused of willfully infringing XanGo’s U.S. Patent No. 6,730,333, titled “Nutraceutical Mangosteen Composition.”
XanGo affirmed today that on December 15, 2004, the Honorable Judge Tena Campbell rejected New Vision’s attempt to delay the patent infringement lawsuit and ultimately ruled that XanGo’s lawsuit against New Vision should proceed toward trial. New Vision had argued that the lawsuit should be put on hold pending re-examination of XanGo’s patent. XanGo presented evidence that although 91% of re-examination requests are granted, the vast majority of such proceedings (88%) result in a valid patent
XanGo General Counsel Bryan Davis explained, “During the re-examination process, our patent is valid and enforceable, and we are entitled to assert our patent rights against infringers such as New Vision. We were pleased that Judge Campbell concluded that XanGo’s lawsuit against New Vision should continue without delay.”
XanGo President Aaron Garrity commented, “We have successfully created a new category of dietary supplements. Naturally, there are those who would like to mimic XanGo’s unparalleled success and have therefore challenged our patent. We believe our position as the world leader in mangosteen-based dietary supplements will be strengthened as the patent is defended and reaffirmed. This will particularly benefit our global network of independent distributors that continues to grow at a remarkable pace.”
About XanGo, LLC
XanGo, LLC is a privately held company that offers a patented dietary supplement beverage, XanGo™, through a global network of independent distributors. As the first company to market a mangosteen beverage, XanGo has created a new category of dietary supplements. Headquartered in Lehi, Utah, XanGo currently has operations in the U.S., Japan, Australia, New Zealand, Canada, Mexico, the Philippines, Hong Kong, Trinidad, and Tobago. For additional information, please visit www.xango.net.
Copyright XanGo, LLC. All rights reserved.
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NO PRESS RELEASE FROM NEW VISION: HERE IS LINK TO THE NEW VISION AND MORINDA STATEMENT
