Judgments Announced in Martek Cases

COLUMBIA, Md.Martek Biosciences Corp. announced the release of two judgments in pending lawsuits concerning patent infringement of its docosahexaenoic acid (DHA) in foods and dietary supplements. In the first case, a three-judge panel of a district court in Dusseldorf, Germany, orally announced a judgment in favor of Martek in a suit filed against Lonza Ltd., Celanese Ventures GmbH and Nutrinova Nutrition Specialties & Food Ingredients; in a separate suit against Lichtwer Pharma GmbH, a customer of Nutrinova, a similar judgment was announced. The suits involved the sale of DHA fatty acid products for use in functional foods and dietary supplements, and claim infringement of Marteks European patent (No. 0 515 460). The court was expected to deliver a written judgment by the end of November. The decisions may be appealed to the higher regional court.

In the second case, a U.S. district court judge in Wilmington, Del., ruled on various post-trial motions and entered a permanent injunction in Marteks favor against Lonza and Nutrinova in a pending patent infringement suit concerning U.S. sale of DHA for use in functional foods and dietary supplements. The judge upheld an October 2006 jury verdict that the defendants infringed on certain patents (U.S. Patent Nos. 5,340,594 and 6,410,281) and that the patents were valid; he also upheld the jury verdict of willful infringement on the 281 patent. The judge reversed the jurys finding that claims under another patent (No. 6,451,567) were enforceable. The decisions may be appealed to the U.S. Court of Appeals for the Federal Circuit.

Regarding the U.S. case, Roman Quinter, head of Lonzas nutrition department, stated: The judges decision is a positive development in Lonzas long term plan of bringing our microbial oil-based DHA to the U.S. market. The 567 patent was the broadest patent asserted by Martek, and we are glad that the district court judge realized that Martek obtained patent claims beyond that permitted by law. In the meantime, while we consider appeal, we have alternative processes options, which are covered by our own pending patents, for the manufacturing patent that was upheld by the Delaware court.

In additional news, Martek announced the Opposition Division of the European Patent Office (EPO) upheld one of Marteks European DHA patents. The modified claims of the patent are narrower than the claims originally granted but broader than the claims previously upheld in a December 2000 Opposition Division hearing. The patent, which expires in November 2010, relates to fermentation processes, human and animal food products, pharmaceutical uses of certain claimed microorganisms and Marteks food DHA production strain. Fermentation process claims were upheld by the EPO, while certain product claims were narrowed by the elimination of coverage for extracted DHA oil.