Neptune ups ante by filing unfair trade complaint against krill competitors

30-Jan-2013 - Last updated on 30-Jan-2013 at 17:13 GMT

In another busy day in the ongoing struggle among krill oil suppliers over IP protection, a trade complaint was filed, this time with the International Trade Commission, and the re-examination of a patent passed a procedural benchmark that one company said was tantamount to that patent’s dismissal.

First to the trade action: Neptune Technologies and Bioressources announced this morning that it has filed a complaint with the United States International Trade Commission alleging that its competitors are engaging in unfair trade practices by importing krill oil products that infringe on one of its patents, dubbed the “351 Patent.” This patent covers claims to krill extracts comprising phospholipids bonded to EPA and/or DHA which are suitable for human consumption, and Neptune announced Friday that it had received a second continuation patent on these claims.

The respondents named in the suit are Aker BioMarine AS, Aker BioMarine Antarctic USA, Inc., Aker BioMarine Antarctic AS, Enzymotec Limited, Enzymotec USA, Inc., Olympic Seafood AS, Olympic Biotec Ltd., Rimfrost USA, LLC, Bioriginal Food & Science Corp. and Avoca, Inc., a division of Pharmachem Laboratories Inc.

“Neptune’s patent estate reflects its position as the pioneer and market leader in the field. The filing of the Complaint is consistent with our philosophy that infringing competitors must be held accountable for their actions,” said Henri Harland, Neptune’s CEO and President.

“We firmly believe that these companies are engaging in unfair trade practices,” Tina Sampalis, Neptune’s chief global strategy officer told NutraIngredients-USA.

Neptune is seeking an order prohibiting these companies from importing any krill-based products that infringe on the 351 Patent. The company said it that the ITC investigation will formally commence within the next month or so, and that the case will take a total of about 15 to 18 months to conclude.

“The ITC is one of the fastest means for judicial resolution of a patent dispute in the United States,” Harland said.

Re-examination of ‘825 Patent’

In another development today, Aker BioMarine announced a procedural move called an “Action Closing Prosecution” in the United States Patent and Trademark Office’s reexamination of another Neptune patent. Aker said USPTO’s action amounted to a rejection of that patent’s claims as unpatentable.

The patent in question is referred to as the “825 Patent” that contains 97 claims to methods of reducing cholesterol, platelet adhesion, and plaque formation by the administration of krill oil. The re-examination now enters a 60-phase in which both parties can submit comments.

"When scrutinizing the patentability of Neptune’s patents during re-examinations and opposition proceedings, both the USPTO and the European Patent Office have to date consequently adopted Aker BioMarine’s arguments for invalidity rather than Neptunes arguments for patentability, and this is yet another example of this so far unbroken trend,” says Edvard Braekke, Aker BioMarine s attorney.

In force, or not?

As is usual in this ongoing battle, there is no agreement as to what the USPTO’s action means, nor whether the patent in question is still in force. Neptune’s Sampalis said Aker was trying to give the impression that USPTO had arrived at a definitve conclusion, something she said was untrue.

“It’s a joke. That is the mildest, most polite way I can describe it,” she said.

Shifting focus

Sampalis said in Neptune’s view Aker was trying to shift the focus away from the impeding ITC suit, and from the fact that Neptune continues to add to its IP portfolio.

“The USPTO is giving us patents one after the other. They are just trying to shift the attention. The defendants will never acknowledge the validity. They are never going to go out and say Neptune’s patents are valid.

“This is just a game to them. We are willing to play that game and we are darn good at it,” Sampalis said.

Eric Anderson, head of global sales for Aker, repeated a sentiment often heard on Aker’s side of table, namely that the ongoing legal battles damage the sector’s credibility and work to the detriment of all of the players in the sphere.

“It’s unfortunate. But if we are going to be active in this space we have to respond and we have to challenge intellectual property that is not accurate,” he said.