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Aker's Australian krill composition patent survives challenge

By Hank Schultz , 05-Sep-2012
Last updated on 05-Sep-2012 at 00:12 GMT

Norway-based krill supplier Aker BioMarine announced Tuesday that Australian authorities have upheld the lion’s share of its Australian krill oil patent over a re-examination challenge lodged by competitor Neptune Technologies and Bioressources.

IP Australia upheld the “novelty and inventiveness” of the broad krill oil composition claims contained within the patent, which was granted in early January. Canada-based Neptune filed a request for re-examination on May 22.

“We are of course glad to see the novelty and inventiveness of our game changing krill oil composition claims being confirmed during re-examination. This patent, together with our ongoing ability to supply Australian companies, makes Aker BioMarine an attractive partner,” stated Matts Johansen, COO at Aker BioMarine.

Australia is an important krill market, according to Eric Anderson, vice president of sales for Aker BioMarine USA. The country is the world’s second-largest market for krill oil products and features triple-digit sales growth. What does this victory mean for Aker in this fertile field?

“We have notified the supply chain that we do have some intellectual property and that we are carefully evaluating our legal position. We are trying to determine the best strategy that would be most helpful to continuing the explosive growth of krill in that market,” Anderson told NutraIngredients-USA.

IP Australia did not, however, similarly uphold the portions of the patent that pertain to Aker’s extraction method. Nevertheless,  “while the examiner now found these particular process claims to lack novelty and/or inventiveness, this does not significantly change the commercial value of this patent,” said Edvard Brække, legal counsel to Aker BioMarine.

Aker’s patent application in January referenced earlier “prior art” including a process patent granted to the University of Sherbrooke in Australia in 2003 and to which Neptune is the exclusive worldwide licensee. Neptune has been supplying krill oil into the Australian market since 2007, followed first by Israel-based competitor Enzymotec and later by Aker.

When contacted by NutraIngredients-USA for the company’s reaction, officials at Neptune said the company would withhold official comment until after examining the full text of Aker’s press release.

The major krill suppliers have been locked in a legal battle over patent claims in the United States market, with Neptune having been granted U.S. patents in late 2011 and having applied for ‘continuation claims on those patents and Aker having formally requested re-examination of the patents. 

The legal wrangling seems to have done little to slow the momentum of krill oil products in the marketplace. Schiff Nutrition’s MegaRed product continues to be the biggest-selling single omega-3 product in the mass channel, according to Aker, which supplies the raw material. And all three major krill oil suppliers continue to forecast strong double-digit sales growth form the foreseeable future.

Anderson said Aker’s primary focus in Australia continued to be toward serving the needs of customers.

“Whatever we do, we want to do the right thing by the market,” Anderson said.

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