At a hearing in Munich yesterday, opposition registered to Neptune’s European Patent EP1417211B1 in regard to a krill flavonoid known as lucenin-2, was found to be valid and the patent revoked.
The opponents to the patent - Norwegian firm Aker BioMarine and Enzymotec from Israel – said independent testing they conducted indicated the presence of the flavonoid, lucenin-2, but nothing unique to NKO.
However the revocation is subject to appeal and is therefore not final until that process is complete, possibly early 2010.
Neptune was unable to be contacted at the time of publication to determine if it was going to challenge the ruling in favour of Aker and Enzymotec.
“The EPO found the evidence was not enough to demonstrate the presence of the unique compounds mentioned in the patent,” said Dr Hogne Vik, executive vice president of documentation at Aker.
“We were never worried about infringing this patent but there has been a lot of noise created around it so we are very happy with this decision by the EPO.”
Vik said Neptune had requested the EPO delay the hearing but the EPO stated it wanted the matter heard before it broke for the Christmas break.
But detail of the ruling would not be published by the EPO until the appeal period concluded, Vik said, noting it was based on the idea of “insufficiency of disclosure”.
In a statement Aker said: “The oppositions were partly based on claims of insufficiency of disclosure in the granted European patent, meaning that the patent did not teach someone skilled in the art to repeat the invention with the claimed outcome.
Originally, Neptune had claimed that their product contained a novel flavonoid compound, but prior to the hearing the patentee admitted to the fact that the flavonoid they had described in the patent application was indeed a well known flavonoid known as lucenin-2.”
The 24 countries in which the patent was validated are Austria, Belgium, Bulgaria, Switzerland, Liechtenstein, Cyprus, Czech Republic, Germany, Denmark, Estonia, Spain, Finland, France, United Kingdom, Greece, Ireland, Italy, Luxembourg, Monaco, Netherlands, Portugal, Slovakia, Sweden and Turkey.
Novel foods, injunctions
December has been a good month for Aker as last week its Superba krill oil was granted novel foods substantial equivalence to NKO and it is now free to trade across the EU’s 27 member states. In doing so, it became the third company to achieve the status after Neptune and another Norwegian supplier, JFM Sunile AS.
Its appeal against a Neptune injunction that saw its Food Ingredients Europe stand cleared last month, is still being resolved in German courts.
Further details of that injunction have come to light with the main charge being that Aker was handing materials to EU customers without novel foods approval (which it did not have at the time).
It is believed a lawyer hired by Neptune was handed Aker materials on the first day of the show, before its stand was raided by Frankfurt court bailiffs shortly after the show opened for day two.
Krill are minute shrimp commonly eaten by whales, and which form the largest animal biomass in the world. Omega-3 rich krill oil harvested for human purposes accounts for less than one per cent of that biomass.