The #8,030,348 patent - awarded last fall - covers marine phospholipids to which the omega-3 fatty acids EPA and DHA are bound, and is currently being reexamined by the USPTO at the request of Neptune’s rival Aker BioMarine.
Should all of the claims in the patent be upheld during this re-examination process, rivals could be prevented from selling krill oil products in the US without first negotiating some kind of licensing deal with Neptune, claims the firm.
Neptune: This is a clear indication of the strength of the continuation claims…
A continuation is a patent application which follows, and claims priority to, an earlier filed patent application.
Neptune's continuation application (no. 13/189,714) contains claims to “further embodiments of the inventions... disclosed in the '348 patent”, said Neptune chief executive Henri Harland.
During prosecution, Neptune gave the USPTO “a substantial volume of prior art references and other materials, including the papers from re-examination requests filed by Aker BioMarine directed to the '348 patent and a related Neptune patent, and the oppositions being undertaken on related Neptune patents in Europe and Australia”, he said.
"The fact that the USPTO has allowed this continuation of the '348 patent, after considering the prior art and evidence submitted by Aker in the re-examination of the '348 patent, is for us, a clear indication of the strength of the continuation claims.”
Aker BioMarine: This does not change anything for our requested re-examination
However, Eric Anderson, VP sales & marketing at Aker BioMarine Antarctic US, told NutraIngredients-USA: "This does not change anything for our requested re-examination, and we are just now looking forward to USPTO making its conclusion."
Lawsuits filed by Neptune against Enzymotec, Aker BioMarine and Schiff Nutrition (which sells MegaRed supplements containing Aker’s krill oil) alleging infringement of the #8,030,348 patent are currently on hold during the re-examination process.
All three firms argue the patent is invalid.
Commenting on the lawsuit last fall, Enzymotec chief executive Dr Ariel Katz said: "I am convinced that this patent's claims are invalid, unenforceable and not infringed based on prior art and severe faults in the process conducted by Neptune at the USPTO."