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Court to stay infringement litigation while Neptune’s krill patent is re-examined

By Elaine Watson , 03-Feb-2012

The court handling a patent infringement lawsuit filed by Neptune Technologies and Bioressources against Aker BioMarine and Schiff Nutrition has agreed to stay (temporarily halt) proceedings until a re-examination of the krill oil patent at issue is completed.

The lawsuit, filed by Neptune at the US district court in Delaware last October, claimed Aker and Schiff (which sells MegaRed supplements containing Aker’s krill oil) infringed Neptune’s #8,030,348 patent, which covers marine phospholipids to which the omega-3s EPA and DHA are bound.

The patent is currently being re-examined by the US Patent and Trademark Office (USPTO) following a request from Aker filed immediately after the patent was awarded last year.

Under the terms of the deal struck by the Delaware court, the litigation is now on hold pending the conclusion of the re-examination, said Neptune.

“Pursuant to an agreement by the parties… the court has ordered a stay of the litigation until the USPTO concludes its inter partes re-examination of the Neptune patent at issue in the case.”

Neptune: Confident patent claims will be reconfirmed

Chief financial officer André Godin said: ''During the stay period and the re-examination process, the '348 patent, which discloses and claims novel omega 3 phospholipid compositions suitable for human consumption, remains valid and enforceable.

“Neptune is confident that at the end of the re-examination process, the validity of the claims of the '348 patent will be reconfirmed'.”

Should Neptune prevail in the litigation, it could stop rivals from selling krill oil products in the US without first negotiating some kind of licensing deal with Neptune.

Aker/Schiff: Neptune patent is invalid

Aker Biomarine, which has dismissed Neptune’s lawsuit as “baseless” and “frivolous”, claims the ‘348 patent is invalid.

Executive vice president sales and marketing Matts Johansen said: "As we have previously told the industry, in 89% of cases where [inter partes] re-examination is granted, the patent claims are either changed (45%) or cancelled completely (44%).

"Consequently, we expect this lawsuit to go away following the USPTO's decision."

In a statement issued earlier this month after filing the motion to stay, Schiff Nutrition International said: “Schiff believes Neptune’s claims lack merit and the patent Neptune asserts is invalid.”

It added: “The mere fact that Neptune has filed claims against Schiff and Aker does not in any way affect Schiff’s ability to continue to sell and promote its top-quality krill oil.”

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