Patents Applicable to Enhanced Bioremediation with Emulsified Vegetable Oils

Fredrickson et al., 1993, Enhancement of In Situ Microbial Remediation of Aquifers
US patent No. 5,265,674 issued to Battelle Memorial Institute claims the use of innocuous oils, either neat or emulsified, to treat toxic cases with both organic compounds and nitrates.  Although Fredrickson et al. sought a general patent for the use of innocuous oil for remediation, prior art by Dietz (US patent No. 3,268,607) limited them to sites where both organic compounds and nitrates are contaminants and are remediated simultaneously (cf. amendment to Fredrickson).

Borden et al., 2002, Method for Remediation of Aquifers
US patent No. 6,398,960 issued and reissued (RE 40,448E) to Solutions IES Inc. and Terra Systems claims bioremediation of a sediment by injecting a microemulsion in a five step process comprising (a) evaluating an aquifer for contaminants, (b) determining whether a pretreatment should be done and if so pretreating the aquifer, (c) treating the aquifer with the microemulsion, (d) determining whether a post treatment should be done and if so doing such and (e) monitoring the aquifer for results.  Newman Zone® is not a microemulsion and using Newman Zone® does not require determination of the need for either pretreatment or post-treatment because neither is necessary (cf.  patent examiners comments;Soo and Radke, 1986; Paul and Moulik, 2001).  The method claimed in this patent was generated with United States government funds as a result of which the government and its contractors have a royalty free right to practice the claimed method. 

Following the initial declaration by the Patent Office of the reexamination of the reissued patent (RE 40,448; Reexamination Communication) because of the likely unpatentability of the two claims not limited to microemulsions, the Patent Office has issued a final rejection of these claims on the basis of the art cited by the requester for the reexamination (Final Rejection, Reexamination Certificate; see also Reexamination 09/009,302).  In addition, seven basic claims reading on the use of microemulsions for remediation were also rejected by the Patent Office as unpatentable over the art cited by the requester that involves both earlier literature and patents.  The actions of the Patent Office confirm our belief that the general application of emulsified vegetable oil for bioremediation is not affected by this patent.

Newman, 2004, Substrate and Method for Anaerobic Remediation
US patent No. 6,806,078 claims a factory process to manufacture a pasteurized vegetable oil emulsion for use in bioremendiation.  Newman Zone® is the only product that is manufactured under this patented process.  The process is also patented in Australia and Canada and a patent is pending in the European Union.
 

The US Patent Office has reaffirmed its unpatentability ruling of nine claims of the Solutions IES reissue patent RE 40,448 reading on emulsions in general as well as what the inventors called "microemulsions," even after argument by the patent owner to the contrary.  The European Patent Office has revoked the equivalent European patent (1,315,675) on the basis of prior art, thereby also rendering any national patents based on the European patent unenforceable (Decision, cf. Minutes).  It remains to be seen if the patent holder intends to appeal these rulings, which we feel are fully justified.

The Australian Patent Office, although upholding the Solutions IES patent, has construed the claimed invention as being limited to microemulsions as such are defined in the art.  Because Newman Zone® is not a microemulsion, the patent does not affect our ability to sell our products for bioremediation in Australia.

We are not aware of any enforceable third party intellectual property that would limit the general use of vegetable oil emulsions for bioremediation.  The use of innocuous oils for remediation dates back to the 1970s and the use of vegetable oil emulsions for bioremediation was first discussed in the early 1990s.  Although improvement patents have issued on the basic concept of using an oil emulsion for remediation, there are no patents that would prevent the use of Newman Zone® in the US or for international projects.  We offer a high quality emulsion products with unique qualities based on our proprietary processing methods at reasonable prices.  However, we encourage our customers to get bids from our competitors so they know they are getting good value.