Krill wars round two: Neptune patent is ‘invalid’ and ‘unenforceable’, says Enzymotec

By Elaine Watson

- Last updated on GMT

Related tags Krill oil Patent application Neptune

Enzymotec has been trying to differentiate itself in the krill oil market by focusing on freshness indicators such as Trimethylamine (TMA) and total volatile basic nitrogen (TVN)
Enzymotec has been trying to differentiate itself in the krill oil market by focusing on freshness indicators such as Trimethylamine (TMA) and total volatile basic nitrogen (TVN)
Israeli nutritional lipids giant Enzymotec has weighed into the patent infringement row engulfing the krill oil industry with a statement from its boss declaring rival Neptune’s new US patent for marine phospholipids ‘invalid’ and ‘unenforceable’ and promising to explore all legal avenues to challenge it.

After a “thorough assessment​ [of rival Neptune Technologies & Bioressources’ newly-granted US patent no 8,030,348] by Enzymotec’s professional experts and third party consultants, we have concluded that there is no basis for the patent claims being asserted against Enzymotec and certain of its customers" ​said Enzymotec chief executive Dr Ariel Katz.

Enzymotec: ‘We will explore all available legal actions’

He added: "I am convinced that this patent's claims are invalid, unenforceable and not infringed based on prior art and severe faults in the process conducted by Neptune at the US Patent Office.

“A related European patent submitted by Neptune was revoked following an opposition process initiated by Enzymotec and we are confident that this patent will end in the same way.

"Neptune’s recent provocative actions and press release are without merit and Enzymotec will explore all available legal actions to protect itself and its customers including making claims against Neptune for any damages caused by this frivolous legal harassment."

Aker Biomarine: Neptune claims are ‘unpatentable’

His comments came after Enzymotec, along with its US krill oil distributor Azantis, Norwegian rival Aker Biomarine, Schiff Nutrition International and Health Resources, found itself at the receiving end of a lawsuit ​filed by Neptune in Delaware on October 4 alleging infringement of the patent in question.

Neptune, which is seeking unspecified damages plus an injunction preventing the defendants listed above from selling krill oil products in the US, says the patent means rivals will not be allowed to sell krill oil in the US unless they reach an agreement with Neptune, as the patent holder.

Aker Biomarine yesterday dismissed Neptune’s lawsuit as “baseless” ​and “frivolous​” and called on the US Patent office to re-examine the patent, which it says covers materials naturally found in krill that were therefore “unpatentable​”.

Schiff and Mercola have yet to make any public comments, but Azantis director of sales Mickey Schuett told NutraIngredients-USA: "We feel the same way they​ [Aker and Enzymotec] do, that this is a frivolous and without merit suit. We are sure that once all the facts are presented to the patent office it will be overturned."

Neptune: ‘Not surprised’ by competitors’ reaction

However, Neptune said it had every right to defend its intellectual property.

Speaking to NutraIngredients-USA on Tuesday, chief scientific officer Dr Tina Sampalis said Neptune had “absolute confidence​” in its patent, which she stressed was different from the (contested) European patent mentioned by Aker and Enzymotec in press releases issued in the wake of the lawsuits.

Neptune chief executive Henri Harland added: “We are not surprised by the competition’s reaction because this valid and solid patent covers any marine phospholipid with EPA and DHA as is also found in krill oil. This implies that competition will not be authorised to sell krill oil in the US unless they reach an agreement with Neptune.”

What is krill?

Krill are deepwater marine planktonic crustaceans that look like tiny shrimps.

Nutritionally, krill oil is an excellent source of the long-chain omega-3 fatty acids EPA and DHA, which are rendered more bioavilable because they are carried by phospholipids rather than triglycerides (as in fish oil).

Krill oil also naturally contains antioxidants including astaxanthin, as well as vitamins E and A, which makes it more stable than other sources of polyunsaturated fatty acids.

The harvesting of Antarctic krill for human consumption (as opposed to fish feed) is relatively recent and is monitored by international organization the Commission for the Conservation of Antarctic Marine Living Resources.

Click here​ to read more coverage of the dispute on NutraIngredients-USA.

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