US Patent Office to Re-Exam Neptune Patent

As to the likely outcome of the reexamination, the industry should take guidance from the USPTO‘s publically available statistics which shows that in 89% of cases where reexamination is granted the claims are either changed (45%) or cancelled completely (44%).

The United States Patent and Trademark Office granted Aker BioMarine‘s request for reexamination of US patent number 8,030,348 assigned to Neptune Technologies & Bioressources. The reexamination was granted on all 21 claims of the patent and in view of multiple references presented to the USPTO by Aker BioMarine.

This is the patent that Neptune has asserted against Aker BioMarine and certain other companies in recent lawsuits in Delaware. In its decision the USPTO states that: "[Aker BioMarine‘s] request for inter partes reexamination establishes a reasonable likelihood that [Aker BioMarine] will prevail with respect to claims 1-21 of the United States Patent Number 8,030,348." In affirming the rejections, the Examiner notes that the originally granted patent claims minimally read on fresh krill meat, a product that was of course not invented by Neptune. The USPTO‘s decision can be downloaded from their home page.

Aker BioMarine‘s Executive Vice President for marketing and sales, Matts Johansen, adds:

"We are very confident with regard to our freedom to operate from Neptune‘s patents worldwide, and this decision from the USPTO confirms what we already knew, namely that the ‘348 patent was only granted because the USPTO was not provided with relevant prior art during its prosecution. Neptune should now withdraw its frivolous lawsuits, stop sending intimidating letters to distributors and marketing companies, and rather focus on competing fairly in the marketplace.

As to the likely outcome of the reexamination, the industry should take guidance from the USPTO‘s publically available statistics which shows that in 89% of cases where reexamination is granted the claims are either changed (45%) or cancelled completely (44%).

We are aware that Neptune‘s recent lawsuits have created some uncertainty in the marketplace, and encourage interested parties to contact us with remaining questions or doubts in this regard."