A complaint filed with the U.S. International Trade Commission (ITC) has the potential to turn the krill industry on its head. Neptune Technologies & Bioressources, based in Laval, QC, Canada, believes several of its competitors in the krill oil category are infringing on at least one claim from its U.S. patent (#8,278,351), and the company wants it to stop.

“We are asking the ITC to put the knife through the heart,” states Tina Sampalis, M.D., Ph.D., chief global strategy officer for Neptune. “We are asking the ITC to block the entry of infringing products into the United States.” In the end, Neptune wants the ITC to stop Aker BioMarine AS, Aker BioMarine Antarctic USA, Inc., Aker BioMarine Antarctic AS, Enzymotec Limited, Enzymotec USA, Inc., Olympic Seafood AS, Olympic Biotec Ltd., Rimfrost USA, LLC, Bioriginal Food & Science Corp. and Avoca, Inc. (a division of Pharmachem Laboratories Inc.) from marketing, selling and importing krill paste and krill oils that violate Neptune’s patent rights, either directly or indirectly.

Sampalis says her company decided to file a complaint through the ITC as a more forceful way to deal with the alleged patent infringement. “We tried in other ways to enforce our patents, however [our competitors] are still not respecting them,” she states. Since their prior attempts involved extremely long processes, “we decided now is the time to go for the nuclear strike and we enforce our rights for these patents through the ITC.”

The ITC is considered one of the strongest and fastest routes to resolve patent disputes in the United States. In other forms of litigation, parties can submit motions, making for a longer process. “[The ITC] has a lot of power,” says Sampalis, noting its straightforward, strict processes are expedited. She adds, “It has the power to issue very broad and very severe remedies…its decisions are definitive.” Neptune hopes for resolution within 15–18 months of its early February filing.

Sampalis says to file an ITC complaint, companies must be confident in their case. “We would not take this risk, to go in front of the ITC, if we did not feel 100% secure about the validity of our patents, which we do,” she states.

Those accused of patent infringement disagree with the complaint, however, and they say they are not going to take it lying down. “Enzymotec is prepared to defend against the ITC action brought by Neptune, and is confident that it will prove, in a short timeline, that Neptune’s ‘351 patent is invalid and that its allegations of infringement are meritless.” says Elzaphan Hotam, CEO of Enzymotec USA, Morristown, NJ.

Aker BioMarine USA has a similar attitude. “We wholeheartedly disagree with the action. We think it is unfounded,” states Eric Anderson, vice president of global marketing for Aker BioMarine, Issaquah, WA. “It’s unfortunate that we have to go through these legal wars. But as a participant in this krill space, we have an obligation to do the right thing. We think the action is unfounded, so we will address it.”

Meanwhile, in a separate case, Aker BioMarine asked the U.S. Patent and Trademark Office (USPTO) to reexamine Neptune’s 8,057,825 patent, which contains claims about its krill’s ability to reduce cholesterol, platelet adhesion and plaque formation. In this reexamination, all 97 claims were denied and Aker BioMarine feels the patent has been lost.

To this, Sampalis said the patent has not been rejected; the action closing prosecution is a normal outcome when a complaint is received, she says. Neptune has an opportunity to respond to the letter, and the company says it will prove the claims are valid.

Published in WholeFoods Magazine, March 2013 (online 2/5/12)