Aker, Neptune Debate Another Krill Patent

ALEXANDRIA, VA The U.S. Patent and Trademark Office (USPTO) issued a new U.S. patent (No. 8,057,825) to Neptune Technologies and Bioressources Inc., providing Neptune with exclusive use of krill extracts in the United States as a method for reducing cholesterol, platelet adhesion and plaque formation. This new patent grants Neptune protection on specific cardiovascular health benefits, such as reduction of cholesterol, platelet adhesion and plaque formation when using krill extracts.

In response, Aker BioMarine filed a request for reexamination of all claims the recently issued patent, asking the USPTO to declare Neptune's claims to be unpatentable.  Aker said Neptune obtained the '825 patent by representing, contrary to the facts, that it was the first to discover the ability of krill oil to lower cholesterol and reduce platelet adhesion and plaque formation.  In its request for reexamination, Aker BioMarine sent publications that it said described the same uses and benefits of krill oil an outlined in the '825 patent.  Aker said the USPTO was not previously provided with copies of these publications nor informed of these facts.

"Patents should only be granted for novel inventions," said Eric Anderson, vice president of sales and marketing, Aker BioMarine Antarctic US. "Neptune obtained this patent by representing, contrary to the facts, that it was the first to discover the ability of krill oil to lower cholesterol and reduce platelet adhesion and plaque formation.  The U.S. patent office did not know, and was not informed by Neptune, of the numerous prior publications describing these same uses and benefits of krill oil.  Aker BioMarine has, however, made the patent office aware of them." 

Wael Massrieh, Ph.D, vice president, scientific affairs, Neptune Technologies & Bioressources Inc., said Neptune and its patent agents sent all the relevant information that was available at the time of the filing to the USPO. "As in any other patent application, the patent examiners also do their own independent research and investigations as well and do not solely rely on information submitted by an applicant,"

Michel Timperio, vice president business development, Neptune, added. "The USPTO is the foremost, reputable authority for awarding patents, and contrary to what Aker claims, the USPTO has not yet granted Akers request for reexamination."

However, Anderson said, "The mere fact that a reexamination is opened is a very strong indication that the USPTO will at least restrict the claims that were originally granted. We are very confident that the USPTO will reexamine this Neptune patent and will find the claims unpatentable."

This is the second Neptune patent that Aker BioMarine has asked the USPTO to reexamine. Aker also asked the USPTO to reevaluate the recently awarded U.S. patent No. 8,030,348, which secured Neptune's intellectual property on a composition of omega-3 phospholipids, which are the main bioactive ingredients in all krill oils.

"With this additional patent, Neptune is the only company exploiting krill while benefiting from protected intellectual property and commercialization rights for those cardiovascular applications," Timperio said. "This is another major gain, strengthening our leading edge in the U.S. market. Competitors and distributors previously claiming in the U.S. market these benefits for their krill extracts, will now be compelled to modify their claims and/or enter into licensing agreements with Neptune."

 This patent increases Neptune's number of patents to 78. Henri Harland, president and CEO, Neptune, said the company plans to protect all of its intellectual property. " Although Neptune remains open to negotiate commercialization license agreements since these additional assets enhance our commercial offering, making Neptune a partner of choice in the nutraceutical and pharmaceutical industries, Neptune will always stand by its patents and will continuously enforce them," he stated. 

"When Neptune first started filing for its patents the krill industry, including fisheries such as Aker, were solely focused on Krill as animal feed," Harland continued. "Neptune as a pioneer of the industry saw this unharnessed potential and lead the way to capitalize on it and create barriers of entry to competition, who realized afterwards what the potential for Krill oil for human health benefits"

However, Anderson said, "Neptune did not invent krill oil. Neptune did not invent the extraction of krill oil. Neptune did not invent the use of krill oil as a dietary supplement, nor to promote cardiovascular health. At Aker BioMarine, we are absolutely comfortable with our freedom to operate from Neptunes issued patents globally."