US patent office grants Aker request to re-examine Neptune's patent; Neptune accuses Aker of 'misleading characterization' of prior art

The #8,030,348​ patent, awarded in October, covers marine phospholipids to which the omega-3 fatty acids EPA and DHA are bound, and was immediately challenged by Aker, which is one of several parties currently being sued by Neptune for allegedly infringing the patent.

Aker is still waiting to hear from the USPTO about its request for the re-examination of a second patent recently awarded to Neptune assigning it the exclusive use of krill extracts in the US as a method for reducing cholesterol, platelet adhesion and plaque formation in (#8,057,825).

Aker executive vice president for marketing and sales Matts Johansen told NutraIngredients-USA: “We are confident that we will prevail, but the USPTO has not yet ruled on this one (#8,057,825)”​

USPTO: 'Claims 1-21 of the '348 patent will be examined as requested'​

The re-examination was granted on all 21 claims of Neptune’s #8,030,348 patent.

In its decision the USPTO says: "The present request for inter partes reexamination establishes a reasonable likelihood that requester will prevail with respect to claims 1-21 of the United States Patent Number 8,030,348."​

To access the decision and case history, click here​.

Matts Johansen added: "We are very confident with regard to our freedom to operate from Neptune's patents worldwide, and this decision from the USPTO confirms what we already knew, namely that the '348 patent was only granted because the USPTO was not provided with relevant prior art during its prosecution. ​

“Neptune should now withdraw its frivolous lawsuits, stop sending intimidating letters to distributors and marketing companies, and rather focus on competing fairly in the marketplace.”​

Neptune: Confident patent will be reconfirmed​

However, Neptune Chief Scientific Officer Tina Sampalis, M.D., Ph.D, told NutraIngredients-USA: "Contrary to Aker’s deliberately misleading statements, the mere grant of the request to reexamine Neptune’s ‘348 patent does not in any way suggest that the U.S. Patent Office has confirmed that the patent should not have been granted. ​

"The patent went through a rigorous patent office examination the first time, and all relevant arguments presented by Aker in support of its re-examination request have already been considered and rejected by the patent office. ​

"Notwithstanding Aker’s misleading characterization of the alleged prior art, Neptune is confident that the claims of the patent will be reconfirmed which will strengthen even more Neptune’s position. Further, we note that in its press releases, Aker has not denied that it infringes the ‘348 patent."​

Patent infringement lawsuits​

Neptune has already moved to enforce the #8,030,348 patent, recently filing two lawsuits at the US district court in Delaware.

The first accuses Aker Biomarine ASA, its US subsidiary Aker Biomarine Antarctic USA, Inc, and Schiff Nutrition International (which sells MegaRed supplements containing Aker’s Superba krill oil), of patent infringement.

The second levels the same allegations against Israeli krill oil supplier Enzymotec; its US subsidiary Enzymotec USA, Inc; Mercola.com Health Resources LLC (which sells krill oil Neptune claims infringe its patent); and Azantis, which distributes Enzymotec’s omega-3 phospholipids in the US.

Henri Harland, president of Neptune, added: "We expect that at the conclusion of the litigation process, Aker, Schiff and all the other defendants will be found to have infringed one or more valid claims of Neptune's '348 patent, and will be permanently enjoined from making, using, selling, and offering to sell in the United States krill oil products." ​

Click here​ for details.