Aker's ITC case against Rimfrost et al. shows that krill wars aren't over yet

Aker is alleging that Rimfrost, along with parent company Olympic Holding  AS and several subsidiaries, and its distribution partner, Bioriginal, a division of Omega Protein, and its extraction partner Avoca, a division of Pharmachem, are infringing on patents it received in 2015 and earlier this year. All of those patents are continuations of the same basic patent, the ‘877’ patent, which Aker says covers “methods for treating krill to denature the lipases and phospholipases present in krill, and extracting the oil with a polar solvent to produce krill oil having certain characteristics. The produced krill oil products, which include krill oil capsules, contain specific ranges o f ether and non-ether phospholipids,​triglycerides, omega-3 fatty acids, and/or astaxanthin. The claims off the Asserted Patents are drawn to such krill oil products, and well as systems methods related to their production.”​

Aker BioMarine filed the suit in August, and the ITC responded with a notice in the Federal Register on Sept. 16 that it is commencing an investigation. The notice advises the various complainants that they will have 20 days to respond to the commission after being served with a notice of the investigation.

Limited exclusion order​

Aker is seeking a limited exclusion order, which is a common route to take in these type of cases, according to attorney Kevin Bell, an attorney in the Washington, DC-based law firm Porzio, Bromber & Newman, P.C., who has assisted in a number of patent suits in his practice. Bell, who has reviewed the suit, told NutraIngredients-USA that if Aker is successful, the named competitors would be forbidden to import their krill oil products and krill meat for production of krill oil products into the United States.  Aker is also seeking cease and desist orders, which would prohibit the Respondents and their related companies from importing, selling, marketing, advertising, transferring and/or soliciting U.S. agents and distributors for krill oil products and krill meat for production of krill oil products.

Bell said that taking the ITC route is a “big gun” approach, and can be thought of as putting all the cards on the table at once.  It could be akin to a weight lifter deciding not to lift lower weights in a meet and go all for nothing by making an attempt to hoist the heaviest weight at the end. The advantages are speed and certainty. There are no jury trials in this process, so there is no need to try to educate jurors on the complex technical matters on which the issue revolves. ITC cases are argued before an administrative law judge, who makes the ultimate ruling.

“Litigating patent disputes at the ITC is a very aggressive process.  It ​m​oves ​m​uch faster than district court litigation and has ​m​ore rules. Deadlines are ​m​uch shorter, discovery is often ​m​uch broader and an initial determination ​m​ust be reached by the Administrative Law Judge within a certain amount of ​m​onths,”​ Bell said.

Former employee ​

An interesting aspect of the case is the fact that Inge Bruheim, PhD, who once was Aker’s chief scientist, is now with Rimfrost and this fact formed part of Aker’s ITC complaint. This aspect of the case will probably preclude Rimfrost from using one of the common defenses in these case, that is, arguing that the patents themselves are invalid, though Bell said taking this tack can potentially be something of a two-edge sword.

“This issue is not uncommon in smaller industry sectors. Aker is essentially alleging that ​M​r Bruheim took what he was doing at Aker and used the same processes at Rimfrost,”​ Bell said.

“There are a lot of twists and turns that occur in litigating patent disputes.  In this case, the issue of ‘assignor estoppel’ will probably arise since ​M​r Bruheim ​m​ost likely assigned his inventions to Aker and could therefore be precluded from arguing that the patents are invalid.  It will be interesting to see which company has a chair when the ​m​usic stops on ​M​r Bruheim's work while employed at both companies,” ​he said.

Precise patent language​

Bell said the judge’s decision will hinge on how the original patents were worded, and crafting patent language is as much art as science.  Try to go too broad, and the patent office will reject the filing.  Get too specific, and the filer leaves room for follow-on competitors to make slight tweaks to the process with the ability to claim that now they’re doing something new.  Companies seeking to defend patents used to be able to rely heavily on something called the Doctrine of Equivalents (DOE), which means basically that insubstantial changes to a production process don’t move it out from under the patent umbrella. But in recent years courts have restricted the application of this doctrine, Bell said (though it is mentioned in the Aker filing). Bell said DOE can’t be used to recapture aspects of the patent that fell through the cracks when the original patent claim was crafted. If you disclose a variety of ways of doing something in your patent application, but then only claim one specific way for the patent itself, you might have a problem, Bell said.

“An example ​m​ight help: Suppose you disclose in the specification using a screw, rivet or nail to attach a part. If the claim only says using a nail, you cannot recapture using a screw or rivet, but you ​m​ay be able to use DOE to capture a competitor who uses glue, since glue was not ​m​entioned in the specification and there ​m​ay​ be an insubstantial difference (for the actual invention) between a nail and glue.  If the screw or rivet was not disclosed in the specification, then DOE ​m​ight capture them even through the claim said ‘nail.’ ”​ Bell said.

Krill wars, part II ​

When contacted by NutraIngredients-USA, Aker declined to comment further beyond the information contained in its court filings. As for the defendants, Avoca declined to comment and Rimfrost did not respond to a request for comment. Bioriginal vice president Joe Vidal had this to say: “We are confident in our position and look forward to a positive resolution.”​

In any case, the filing shows that there is plenty of fight left in the krill sector, despite the much ballyhooed burying of the hatchet among krill companies several years ago when Neptune Technologies and Bioressources prevailed​. According to Norwegian press reports​, in additional to the ITC case Aker has also filed suit earlier this year against Rimfrost and its associated entities in Norwegian court. 

“I'​m​ sure Aker spent ​m​onths with its counsel preparing for this filing. Clearly, the krill wars are not over yet, because an ITC investigation is a war,”​ Bell said.