Neptune, Aker Clash Over New Krill Patent

LAVAL, Québec and OSLO, NorwayNeptune Technologies & Bioressources Inc. received a new patent (No. 8,278,351) from the U.S. Patent & Trademark Office (USPTO), and used it as a basis to file a second patent infringement lawsuit in the U.S. District Court for the District of Delaware alleging infringement against Aker BioMarine and other krill suppliers.

In response to the patent being issued, Aker requested USPTO re-examine Neptune's '351 patent because Aker questions the patentability of the claims. The '351 patent is a continuation of Neptune's U.S. Patent (No. 8,030,348), granted on Oct. 4, 2011. The first '348 patent is currently under re-examination at the USPTO after Aker requested it.

Both the '351 and '348 patents contain claims to krill extracts comprising a phospholipid suitable for human consumption.

Aker said, like with the '351 patent,  Neptune did not give the USPTO all of the necessary information to determine if the krill oil extracts and compositions could be patented for the new '351 patent. Aker said prior material, which was not provided to USPTO, establishes Neptune's processes were known well before the filing date of the patent.

"Neptune has incorrectly indicated that all evidence submitted in the re-examination of the '348 patent has been provided to the examiner of the '351 patent," said Attorney-at-Law Mitch Jones of Casimir Jones. "In particular, Neptune failed to provide the examiner of the '351 patent with key experimental evidence submitted in the re-examination on April 18, 2012. This evidence confirms the claimed phospholipids were present in the prior art krill oil."

Neptune pointed out USPTO issued this new  patent after reviewing supporting materials, including Aker's filed request to reexamine the 351 patent.

 The granting of the Continuation Patent further reinforces our position as the pioneer in the krill oil industry and reiterates to our investors, shareholders and clients that we are committed to continuously building and defending our intellectual property (IP) and market position, not only in the United States, but also throughout the world," said Henri Harland, president and CEO of Neptune.

In addition to seeking monetary damages for Defendants infringement of the 351 Patent, Neptune is also requesting injunctive relief to prevent the defendants from continuing to infringe Neptune's patent. Should Neptune prevail in securing the requested injunctions, it would prevent the defendants from manufacturing, using, offering for sale, selling and/or importing into the United States infringing krill oils.

Neptune's lawsuit names the defendants:  Aker Biomarine ASA, Aker Biomarine Antarctic AS, Aker Biomarine Antarctic USA Inc., Schiff Nutritional International and Schiff Nutrition Group Inc. Neptune has also filed a separate infringement action against Enzymotec Ltd., Enzymotec USA  Inc., and Mercola.com Health Resources LLC.

Neptune and Aker also clashed over another patent (No. 8,057,825) issued to Neptune in November 2011 for using krill to reduce cholesterol, platelet adhesion and plaque formation. Aker BioMarine filed a request for reexamination because 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.  The USPTO agreed to reexamine this patent in February 2012.

Also in February 2012, Neptune, Aker and Schiff Nutrition agreed to a stay of litigation in their patent infringement case until USPTO completed its re-examination of the original Neptune-held patent in question (No. '348).

The companies had similar patent battles in Australia as well, which concluded with Aker holding an Australian patent.