Neptune to appeal European patent revocation

By Shane Starling

- Last updated on GMT

Related tags Patent

Canadian global krill leader, Neptune Bioressources and Technologies, has confirmed it will appeal a decision taken by the European Patent Office (EPO) yesterday to revoke its krill patent.

Opposition to the patent by Norwegian firm Aker BioMarine and Enzymotec from Israel was upheld by the EPO in a Munich hearing yesterday, but Neptune noted that the status quo is unchanged due to its impending appeal, which freezes the revocation.

“We will be defending this patent,” ​said Neptune senior scientific officer, Tina Sampalis, who noted that the Munich ruling was yet to be written into the EPO’s books – expected in January.

Her statement to backed a comment from the company in its third quarter results statement that showed revenue was up by between 39 and 55 percent for the quarter from $2.45m to between $3.4m and $3.8m.

Sampalis said Neptune was ready to defend the patent on the grounds for the Munich ruling – that the patent was insufficiently disclosed.

She said an appeal may take 2-3 years to be heard and affirmed the company had attempted to have the hearing delayed due to her own pregnancy, rather than any desire to forestall the process.

“The patent has been misread by one of the opponents and that has formed the grounds for this decision. All the information is there,” ​she said.

Neptune’s European Patent EP1417211B1 relates to the extraction of a krill​ flavonoid known as lucenin-2.

“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.

But detail of the ruling would not be published by the EPO until the appeal period concluded, Vik said, noting it was based on the idea of “insufficiency of disclosure”.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.”

Sampalis said it was not the compound, but the means of extraction that was unique.

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.

In its Q3 statement, Neptune said it had filed counterclaims against Schiff over a supply dispute, but would not reveal intended actions over a dispute with former client, Valensa.

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