Neptune is opposing the application—AU2008291978, under the name “New Method for Making Krill Meal”—because it claims it has evidence that the invention claimed in the application is “neither new nor inventive”.
The company says it will present “clear disclosures in printed publications and patents, published years before Aker’s patent, that teach exactly what Aker claims in its patent application and serve as strong prior art against Aker’s patent.”
The move follows Neptune’s previous request for re-examination against Aker’s AU2008231570 patent, which lead the Australian Patent Office (APO) to invalidate Aker's claims to a krill oil production process for lack of the required novelty and inventive step.
“This is in line with Neptune’s intellectual property strategy aiming to reinforce its position as the krill oil innovator and a market leader, in order to secure the rapidly growing krill oil market and protect its distributors,” the company said in a release.
“Anyone who claims to be free to operate in Australia based on a patent licence from Aker is at risk, as Neptune firmly believes that Aker’s patents and patent applications will eventually be declared invalid by the APO or the courts, while Neptune’s patents will be enforceable” said Neptune’s chief global strategic officer, Dr Tina Sampalis.
The patents in question are unrelated to the four Australian innovation patents that were awarded to Aker earlier this month. Indeed, since announcing these patents, which relate to krill oil compositions and extraction, the Norwegian producer has agreed non-exclusive rights for Olympic Seafood-owned Rimfrost to access its patent portfolio in Australia.
Meanwhile, the United States Patent and Trademark Office has recently issued a final rejection for the corresponding patent application in the US to the one opposed by Neptune in Australia.
The US and European patent offices are yet to grant a patent to Aker for a krill oil composition or for a method to make krill products.