USPTO rejects one of Neptune's krill patents; appeal forthcoming

By Hank Schultz

- Last updated on GMT

USPTO rejects one of Neptune's krill patents; appeal forthcoming
In the latest development in the nutraceutical world’s equivalent of the Wars of the Roses, the United States Patent and Trademark Office has ruled on a reexamination of a Neptune Bioressources and Technologies patent and has rejected all of its 148 claims.

The patent ruling, which can be appealed by Neptune, came as a result of a request by Neptune’s competitor, Aker BioMarine, to the USPTO to have the patent re-examined.  Aker has long maintained that the patent was overbroad and was granted without a sufficient consideration of prior art.

The patent in question, dubbed the 348 patent, is one of a family of patents which are in part the subject of litigation and/or re-examination. In addition, there are other Neptune patents, one of which is the subject of a case brought by Neptune against its competitors before the US International Trade Commission. The parties are locked in legal disputes elsehwere too, such as in Europe and Australia.

Aker has assumed the highest profile of the parties on the other side of the various patent disputes.  The others include Olympic Seafood AS and Enzymotec. From Aker’s point of view, the action by the USPTO will be the first of a cascading series of decisions that will ultimately result in the rejection of a large part of Neptune’s IP.

“We expect at that at the end of the day, all of the other patents will be canceled,”​ Matts Johansen, chief operation officer of Aker told NutraIngredients-USA at the VitaFoods trade show in Geneva. “We are going to fight this until the end.”

Rebuttal to come

Neptune, however, believes that the appeal process of this most recent decision will result in a vindication of its patent.  Aker had submitted information to the USPTO that it believes shows that the original patent was granted without sufficient consideration of prior art.  A point-by-point rebuttal of that information will tell a different story, Neptune believes.

“There are unresolved issues still outstanding including new information filed by Aker that Neptune has not had the procedural opportunity to rebut,”​ said Benoit Huard, Neptune’s director of legal affairs. “We strongly believe that once that information is rebutted, the USPTO will be better placed to confirm our position.”

Lawsuit dismissed

In another development, Neptune announced that the securities class action lawsuit filed against the company in December 2012 has been voluntarily dismissed by the plaintiffs.  That lawsuit alleged that company executives had made false and misleading statements about the company’s business in the period from December 2011 to November 8, 2012, the day that Neptune’s production facility in Sherbrooke, Ontario suffered an explosion and fire that heavily damage the plant and killed three workers.  Neptune officials say the company is still on track to reopen a rebuilt facility in Sherbrooke later this year and to finalize agreements with one or more third party processors to give the company some supply flexibility.

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