Aker, Neptune Debate Krill Patent Claims

ARLINGTON, Va.The U.S. Patent and Trademark Office (USPTO) granted Neptune Technologies & Bioressources, Laval, Quebec, a new patent (No. 8,030,348) covering omega-3 phospholipids comprising polyunsaturated fatty acids, one of the main bioactive ingredients in all recognized krill oils. However, Aker BioMarine , Oslo, Norway, requested that the USPTO reexamine the krill oil claims in the patent.

Aker BioMarine said the phospholipid contents created with the krill extraction outlined in the patent were in use before Neptune filed the patent.

Neptune said the patent covers novel omega-3 fatty acid phospholipid compositions suitable for human consumption, synthetic and/or natural, regardless of the extraction process, including compositions extracted from marine and aquatic biomasses. The company said, the 8,030,348 patent protects Neptune Krill Oil (NKO®) and also covers amongst others, oils and powders extracted from krill, containing marine phospholipids bonded to eicosapentaenoic acid (EPA) and/or docosahexaenoic acid (DHA), distributed and/or sold in the U.S. market.

Aker said the USPTO was not informed of these facts, was not provided with copies of the relevant publications and was not informed of proceedings in the European patent office in which Neptune's related European patent was ruled invalid. 

This patent grant is the result of mistakes made by both the USPTO and Neptune, said Hallvard Muri, CEO of Aker BioMarine. Contrary to Neptune's patent claims, Neptune did not invent a phospholipid composition containing the omega-3 fatty acids EPA and DHA. The fact is that these phospholipids occur naturally in krill and a significant amount of prior art was not disclosed in the Neptune application. Before the patent was granted, we even sent Neptune a copy of crucial and unconsidered prior art, but despite this, they chose not to withdraw the patent application from issue.

Aker BioMarine said it retained an expert to repeat the experiments that Neptune conducted and relied on to convince the U.S. patent office to issue the patent. Aker BioMarine said those experiments, when properly conducted and analyzed, confirm that prior extraction methods produced a krill oil extract containing the claimed phospholipid. These facts and the prior publications are discussed in the request for reexamination, according to Aker, which asks the patent office to declare the recently issued claims to be unpatentable.

Neptune has provided the U.S. examiner with all the relevant documentation of which we were aware, said Tina Sampalis, chief scientific officer, Neptune. The 348 Patent differs from the patent issued in Europe (PT1417211 (E)) as it is not restricted by the obligatory presence of flavonoids or other antioxidants. In addition, although the European patent has been ruled invalid, Neptune filed an appeal and is confident that the decision will be overturned.

Henri Harland, Neptune's president and chief executive officer, said Neptune retained the services of a law firm to prepare the files to obtain the patent.

Neptune filed a complaint on against Aker Biomarine ASA, Aker Biomarine Antarctic USA Inc. and Schiff Nutrition on Oct. 4, 2011, and filed another complaint against Enzymotec Limited, Enzymotec USA Inc., Mercola.com Health Resources LLC and Azantis Inc. also on Oct. 4, 2011. Both complaints were filed in the U.S. District Court for the District of Delaware and claim infringement of the '348 patent. "It is also the management's obligation to protect and defend Neptune's assets, in order to maximize shareholder's value; we intend to fully enforce our patent against anyone who infringes," Harland said.

"We regard this as another frivolous lawsuit from Neptune, Muri said. In 2009, Neptune filed a patent infringement lawsuit in U.S. District Court, District of Massachusetts, against Aker BioMarine ASA; Jedwards International, Quincy, Mass.; and Virgin Antarctic LLC; alleging infringement of a U.S. patent (No. 6,800,299) related to a method of extracting total lipid fractions from krill.

Harland added We expect a strong reaction from the competition as this new patent implies that they will not be authorized to distribute and/or sell any krill oil with the above mentioned composition in the United States, unless they reach an agreement with Neptune.