Zoomessence Inc v. McCormick & Co Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ZoomEssence, Inc. (Delaware)
  • Defendant: McCormick & Company, Inc. (Maryland); FONA International, LLC; FONA Technologies, LLC
  • Plaintiff's Counsel: Miller Fair Henry PLLC
• Case Identification: 2:25-cv-01240, E.D. Tex., 03/31/2026
• Venue Allegations: Plaintiff alleges venue is proper over Defendant McCormick in the Eastern District of Texas based on infringing acts committed in the district and because McCormick maintains a "regular and established place of business" through its contractual control over dedicated retail shelf space and product displays within the district.
• Core Dispute: Plaintiff alleges that Defendants' "TrueTaste®" flavor technology, which converts liquids to powders, infringes two patents related to low-temperature spray drying and was developed using Plaintiff's misappropriated trade secrets.
• Technical Context: The technology concerns methods for spray drying heat-sensitive ingredients, such as flavors, at near-ambient temperatures to avoid the degradation and loss of volatile compounds associated with conventional high-heat processes.
• Key Procedural History: The complaint alleges a complex history between the parties, beginning with a 2011 Non-Disclosure Agreement (NDA) under which Plaintiff shared proprietary information with Defendant FONA. After communications ceased, the parties re-engaged under a 2019 NDA, which Plaintiff alleges FONA also violated by misappropriating trade secrets to develop its competing "TrueTaste®" technology, which became a key asset in FONA's $710 million acquisition by McCormick. The complaint also alleges Defendants had knowledge of the patents-in-suit since at least July 2017 through a direct notice letter and through citations made during the prosecution of their own patents.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,551,527 - "Methods and Apparatus For Low Heat Spray Drying"

The Invention Explained

• Problem Addressed: Traditional spray drying, a century-old process for converting liquids to powders, requires high-temperature gas (typically 180-200° C) Compl. ¶2 '527 Patent, col. 2:5-22 This intense heat can evaporate, oxidize, or otherwise degrade sensitive or volatile components ("the load"), such as flavors and fragrances, diminishing the quality and performance of the final powdered product '527 Patent, col. 2:32-41
• The Patented Solution: The '527 Patent discloses a method for spray drying ingredients using air at a temperature below 100° C '527 Patent, claim 1 The method relies on a specific slurry formulation, comprising water, a carrier (like starch), and the active ingredient, which has a significantly higher viscosity (500 to 16,000 mPa-s) and lower water content (20 to 50 wt. %) than conventional slurries '527 Patent, claim 1 '527 Patent, col. 1:1-3 This formulation allows for effective drying without the damaging high heat of prior art methods.
• Technical Importance: The ability to create powders from liquids at low temperatures enables the preservation of delicate, heat-sensitive ingredients, improving product quality, reducing energy consumption, and making it possible to powder compounds that were previously unsuitable for spray drying Compl. ¶3

Key Claims at a Glance

• The complaint asserts infringement of at least independent claim 1 Compl. ¶150
• The essential elements of independent claim 1 are:
  • forming a slurry including water, a carrier, and an ingredient, where the slurry has a viscosity of 500 to 16,000 mPa-s and contains 20 to 50 wt. % water;
  • the carrier comprises starch or modified starch;
  • the ingredient is from a group including foods, flavors, fragrances, medicaments, bacteria, probiotics, and pigments;
  • atomizing the slurry to generate a spray of liquid droplets;
  • introducing the spray into a drying chamber; and
  • feeding air at a temperature less than 100° C. into the chamber to dry the droplets and form a dried powder of encapsulated particles.
• The complaint reserves the right to assert additional claims Compl. ¶149

U.S. Patent No. 9,332,776 - "Methods and Apparatus For Low Heat Spray Drying"

The Invention Explained

• Problem Addressed: The patent addresses the "significant degradation of performance" and "loss of revenue" caused by conventional high-heat spray drying, which alters or destroys the desired components (the "load") of a product like a flavor or fragrance '776 Patent, col. 2:32-41 The goal is to produce a powder that retains the original characteristics of the active ingredient with high fidelity.
• The Patented Solution: The '776 Patent claims a spray dried powder characterized by its high retention of the initial active ingredient. The invention achieves this result through a low-heat process that involves applying an electrostatic charge to the slurry before or during atomization '776 Patent, abstract This charge causes the atomized droplets to repel each other and undergo "coulombic fission," where they break apart into smaller sub-droplets, dramatically increasing the surface area for evaporation and enabling rapid drying without heat '776 Patent, col. 6:55-68 '776 Patent, col. 7:20-28 The resulting powder contains a final active ingredient whose key chemical components ("principle molecular types") are present in a weight percentage that is "within about 5%" of their percentage in the initial, pre-processed ingredient '776 Patent, claim 1
• Technical Importance: This technology produces a shelf-stable powdered product that preserves the original profile of volatile and sensitive ingredients with exceptionally high fidelity, a significant improvement over powders made with heat-based methods Compl. ¶92 Compl. ¶96

Key Claims at a Glance

• The complaint asserts infringement of at least independent claim 1 Compl. ¶187
• The essential elements of independent claim 1 are:
  • A spray dried powder comprising a plurality of dried particles;
  • Each particle contains a final active ingredient encapsulated within a carrier, resulting from drying a slurry;
  • The initial active ingredient in the slurry includes "principle molecular types" from which a food, flavor, fragrance, etc., is obtained;
  • The final active ingredient contains components corresponding to the initial ingredient; and
  • A weight percentage of at least one of the principle molecular types in the final active ingredient is "within about 5%" of the weight percentage of the corresponding type in the initial active ingredient.
• The complaint reserves the right to assert additional claims Compl. ¶186

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are Defendants' "TrueTaste®" products and the "TrueTaste® Technology" used to create them Compl. ¶83 This technology is alleged to be a low-temperature, liquid-to-powder conversion process that utilizes "PolarDry®" electrostatic spray drying equipment, including Models 050 and 050+, manufactured by non-party Fluid Air, Inc. Compl. ¶81 Compl. ¶83 Compl. ¶152 Compl. ¶154

Functionality and Market Context

• The complaint alleges the accused process employs electrostatic spray drying to convert a liquid slurry into a dried powder at low temperatures Compl. ¶152 This slurry is alleged to consist of water, a carrier such as starch, and an active ingredient Compl. ¶157 Compl. ¶160 A promotional diagram for the PolarDry® system shows it operating at a temperature range of 35° C to 100° C, in contrast to conventional spray drying shown operating up to 230° C Compl. p. 51 The complaint alleges that Defendants' promotional video for TrueTaste® features footage of the PolarDry® equipment in operation Compl. ¶153 A screenshot from this video depicts the large-scale industrial machinery allegedly used to produce the accused products Compl. p. 46
• Defendants are alleged to have marketed TrueTaste® as a "revolutionary low-temperature spray drying process" and an "industry-changing liquid-to-dry conversion process that nobody else has" Compl. ¶122 Compl. ¶124 The complaint asserts that this technology was a "key driver" of McCormick's $710 million acquisition of FONA Compl. ¶127

IV. Analysis of Infringement Allegations

U.S. Patent No. 9,551,527 Infringement Allegations

Identified Points of Contention:

• Evidentiary Question (Viscosity): The complaint alleges that a slurry with 40%-50% water "inherently has viscosities in the claimed range of 500 to 16,000 mPa-s" Compl. ¶159 A central factual dispute may be whether the slurries used in the accused process actually meet this specific viscosity limitation, an issue that will likely require expert testimony and testing of the accused process.
• Scope Question: The claim requires feeding "air" at a certain temperature. The accused process uses a "drying gas stream" Compl. ¶161 The parties may dispute whether the specific composition of the drying gas used in the PolarDry® system falls within the scope of the term "air" as used in the patent.

U.S. Patent No. 9,332,776 Infringement Allegations

Identified Points of Contention:

• Evidentiary Question (Retention Percentage): The allegation for the "within about 5%" limitation rests on "data provided by FONA" Compl. ¶195 A core issue will be the nature and interpretation of this data. The case may turn on whether discovery confirms that the accused products meet this high-retention threshold, which is a key inventive concept of the patent.
• Technical Question: The claim requires that the final particle "contain an amount of final active ingredient encapsulated within a carrier." The parties may dispute the degree of encapsulation achieved by the accused process and whether it meets the standard required by the claim language, as interpreted in light of the specification.

V. Key Claim Terms for Construction

• The Term: "viscosity in a range of from 500 to 16,000 mPa-s" '527 Patent, claim 1

• Context and Importance: This numerical range is a primary feature distinguishing the claimed method from conventional spray drying, which the patent specification characterizes as using much lower viscosities of 10-300 mPa-s '776 Patent, col. 2:1-3, incorporated by reference Infringement of this element is pleaded on the basis of inherency Compl. ¶159, making the precise boundaries and measurement conditions of this range critical to the dispute.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claim presents a clear numerical range without specifying measurement conditions (e.g., temperature, shear rate), which may support an argument that the term should apply to any standard measurement that falls within those numbers.
  • Evidence for a Narrower Interpretation: The specification states that "Formation of the slurry is controlled such that regulation of at least one of the viscosity...is obtained" '776 Patent, col. 6:18-22 A defendant may argue that this implies a specific, controlled measurement protocol and that the claim should be limited to viscosities measured under conditions disclosed or implied by the patent's examples.

• The Term: "principle molecular types" '776 Patent, claim 1

• Context and Importance: This term defines the chemical components that must be measured to determine whether the "within about 5%" retention limitation is met. The definition of what qualifies as a "principle" type will be dispositive for the infringement analysis of the '776 Patent's product claims.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claim itself broadly defines them as types "from which at least one of a desirable food, flavor, fragrance, medicament, and pigment is obtained" '776 Patent, claim 1 The specification provides an example of D-Limonene as a principal type obtained from orange oil, suggesting it refers to key, character-defining compounds '776 Patent, col. 12:18-22
  • Evidence for a Narrower Interpretation: A defendant may argue the term is limited to only the most abundant molecule(s) by weight in an ingredient, or only those specifically responsible for its primary function (e.g., the most dominant flavor compound). The patent's focus on D-Limonene, a major component of citrus oil, could be used to support an argument against applying the term to minor or trace components.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant McCormick actively induces infringement of both the '527 and '776 Patents. The alleged acts of inducement include providing instructions to third parties like Fluid Air on the development and use of the accused PolarDry® equipment, as well as marketing the TrueTaste® products and hosting "Flavor University" courses that allegedly instruct customers on infringing uses Compl. ¶¶170-175 Compl. ¶¶200-204
• Willful Infringement: Willfulness is alleged for infringement of both patents based on alleged pre-suit knowledge. The complaint asserts McCormick knew of the patents since at least July 6, 2017, via a notice letter sent to its subsidiary FONA Compl. ¶182 Compl. ¶209 It further alleges knowledge based on FONA's citation of the Asserted Patents as prior art during the prosecution of its own patents, which McCormick allegedly monitored Compl. ¶182 Compl. ¶209

VII. Analyst's Conclusion: Key Questions for the Case

• A core issue will be one of evidentiary proof: The complaint presents a detailed narrative of alleged corporate espionage, culminating in the launch of a copycat product. This narrative relies heavily on information allegedly obtained from a "former FONA consultant" and "data provided by FONA" Compl. ¶132 Compl. ¶195 A central question for the court will be whether the evidence produced in discovery substantiates these allegations, or if Defendants can establish that the TrueTaste® technology was the product of legitimate, independent development.
• A key technical question will be one of functional equivalence: Does the accused PolarDry® process, as operated by Defendants, truly replicate the specific, claimed parameters of the patented technology? This will involve factual inquiries into whether the accused slurry inherently meets the high-viscosity limitation of the '527 Patent and whether the resulting TrueTaste® powder achieves the "within about 5%" ingredient retention rate of the '776 Patent.
• A final question will be one of definitional scope: The infringement analysis for the '776 Patent will depend significantly on the court's construction of the term "principle molecular types." Whether this term is construed broadly to include a wide range of an ingredient's chemical constituents or narrowly to cover only the most predominant molecules could be dispositive of the infringement question for the accused powder products.