In the suit, filed on Monday in district court in Nevada, Aker alleges that Luhua and a marketing partner called Infiniti Nutraceuticals are infringing on one of Aker’s patents, the so-called ‘765’ patent. (As a shorthand, patents are typically referred to by the last three digits of the number issued by the US Patent Office.) The patent, which was issued in April, 2016, protects Aker’s new concentration technology and refers to “new krill oil compositions characterized by having high amounts of phospholipids, astaxanthin esters and/or omega-3s.”
This is the second infringement action Aker has filed in recent weeks. In an earlier action, Aker filed a case before the ITC listing Rimfrost and parent company and allied divisions and its distribution partner Bioriginal and extraction partner Avoca as defendants.
Krill wars
Aker and Neptune Wellness Solutions, the two companies that sit atop the category pyramid, were the most active litigants in the past, but a recent agreement ended hostilities between the two companies.
Neptune, based in Canada, was the pioneer of krill oil as a dietary ingredient and did some of the early scientific work underpinning krill oil’s effectiveness. Aker BioMarine was a later entrant that had the advantage of being part of a large, diversified Norwegian company and also in being vertically integrated with its own fleet of krill harvesting vessels. Aker and Neptune fought each other for years over the scope and validity of their various patents, a fight that included the filing of a case before the International Trade Commission.
As the category developed and as Aker and Neptune spent time and money fighting with each other over alleged patent infringements, other competitors started to creep in besides the other two main players in the category—Enzymotec of Israel and Rimfrost of Norway. It is one of these new companies in the category—Chinese firm Luhua BioMarine—that is the subject of a suit by Aker.