Krill oil dispute turns ugly as new patent prompts wave of litigation

Neptune’s patent (no. 8,030,348​) - granted yesterday - covers ‘natural marine source phospholipids comprising polyunsaturated fatty acids and their applications’, and was immediately challenged by arch rival Aker Biomarine, which has formally requested that the patent office re-examine it.

Neptune: Suffered ‘irreparable injury’ ​

Neptune, however, immediately launched two lawsuits enforcing the patent, which is valid until 2025 and covers marine phospholipids to which the omega-3 fatty acids EPA and DHA are bound.

The first​, filed at the US district court in Delaware yesterday, accuses Aker Biomarine ASA, its US subsidiary Aker Biomarine Antarctic USA, Inc, and Schiff Nutritional International (which sells MegaRed supplements containing Aker’s Superba krill oil), of patent infringement.

The second​, also filed in Delaware, 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.

Neptune alleges that the infringements have caused it “irreparable injury​” and is seeking unspecified damages plus a permanent injunction preventing all defendants from selling products containing the allegedly patent-infringing krill oils in question.

Aker: Neptune lawsuit is ‘baseless’ and ‘frivolous’​

Aker Biomarine, which dismissed Neptune’s lawsuit as “baseless​” and “frivolous​”, said it would “defend itself and its product vigorously against such infringement allegations”.​

Executive vice president sales and marketing Matts Johansen told NutraIngredients-USA: “It is very frustrating, and it’s costly, but we’ve been through all this before. We would like to spend our time and money on research into the benefits of krill oil. The biggest challenge is all the unnecessary stir it causes in the market.”​

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He added: “We sent Neptune prior art but they chose to ignore it. I am not going to speculate over the reasons why. I’m not an expert in patent law but I believe there is an obligation on the part of a patent holder to all relevant information on. ​​

“But we are very confident that we can defend ourselves against the patent infringement claims.”​

Neptune: Rivals will not be allowed to sell krill oil in the US without talking to us​

Neptune said it had not received a copy of Aker’s request to re-examine 8,030,348, but insisted that “all pertinent documents​” had been filed with the US patent office and that it had been assisted throughout by "one of the leading law firms in the US". ​

Chief Scientific officer Dr Tina Sampalis said Neptune had “absolute confidence”​ in its patent and the complete and rigorous process by which the US Patent office had gone about assessing it.

She also stressed that Neptune’s US patent was different from the (contested) European patent that Aker referred to in a press release issued yesterday about the patent (see below).

Neptune chief executive Henri Harland said: “We are not surprised by the competition’s reaction because this valid and solid patent covers any marine phospholipid with EPA and DHA as is also found in krill oil. This implies that competition will not be authorised to sell krill oil in the US unless they reach an agreement with Neptune.​

“It is our obligation to stakeholders to protect Neptune’s assets which we invested significant resources developing. Neptune has openly communicated its patent portfolio and proceedings, and it is in competitors’ interests to comprehend their implications. Neptune is the pioneer of this field and intends to justly maintain its leadership."​

Aker: Neptune and US Patent and Trademark office both made mistakes​

In its request for re-examination sent to the US Patent and Trademark Office (USPTO) yesterday, Aker alleged that extractions of krill “performed before Neptune's purported invention​” had produced oils containing the phospholipids in question, and that Neptune had failed to pass this information onto the USPTO.

It also alleged that the USPTO had not been informed of proceedings in the European patent office “in which Neptune's related European patent was ruled invalid”​.

Aker chief executive Hallvard Muri added: "This patent grant is the result of mistakes made by both the USPTO and Neptune. Neptune did not invent a phospholipid composition containing the omega-3 fatty acids EPA and DHA.​

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"These phospholipids occur naturally in krill and a significant amount of prior art was not disclosed in the Neptune application. Before the patent was granted we even sent Neptune a copy of crucial and unconsidered prior art, but despite this they chose not to withdraw the patent application from issue.”​

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A very public spat​

While Aker and Neptune have both been singing from the same hymn sheet recently on the issue of unscrupulous firms peddling ‘fake' krill oil containing “next to no phospholipids​”, they have been at loggerheads from the outset over intellectual property and other regulatory issues.

While most of the wrangling has been over patents, the two also hit the headlines in 2009 at the Food Ingredients Europe trade show in Frankfurt when Neptune won an injunction under EU novel foods legislation that saw bailiffs clear Aker’s stand of materials.

A separate case against Aker brought by Neptune and L'Universite de Sherbrooke in 2009 alleging infringement of Neptune’s US process patent no 6,800,299 is ongoing.

Enzymotec was unavailable for comment as this article went to press.