Aker BioMarine had requested a review of the US PTO patent granted to rival Neptune Technologies & Bioresources, and this patent review has now been granted by the US PTO for all 21 claims covered by this patent. The review was granted based on a number of references provided by Aker BioMarine which raised questions as to the validity of the patent, which has been used by Neptune in recent lawsuits against competitors.
Neptune had filed these suits in Delaware, and the fact that the US PTO granted the review is a good indication that Aker and other companies targeted in the suits will prevail in court. The examiner from the US PTO noted that the original patent which was granted to Neptune claimed protection on a natural product (fresh krill meat) which was not invented by the company.
Aker is pleased with the decision by the US PTO and is confident that their freedom to operate with respect to the patent in question will be upheld in the review process. The company has argued that the only reason the US PTO granted the original patent to Neptune is that they were not aware of all the prior art which was relevant to the patent application.
In light of the review decision by the US PTO, Aker is calling on Neptune to withdraw their lawsuits based on this patent and cease the intimidating correspondence they have been sending to marketing companies and distributors of Aker products. The patent in question was only granted one month ago, and it covers methods of reducing the formation of plaque and lowering cholesterol in humans using krill extract. Aker filed a request for a re-examination of the patent on the first day it was granted to Neptune. In spite of the fact that the request for review has been granted by the US PTO, Neptune has refused to withdraw its lawsuits and has stated that they believe that their patent will stand up to the review process.
Neptune has stated that they will defend their intellectual property in court. They argue that simply because a re-examination of that patent has been granted by the US PTO, it does not provide strong indication that the claims of the issued patent will end up being restricted. However, in 89% of USPTO review cases the patent claims are either changed or cancelled.
