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Krill Oil Co. Says Rivals Infringe Patent In ITC Suit (Law360)

Neptune Technologies & Bioressources Inc., a company that extracts oils from Antarctic krill used in health products, said Wednesday it has launched a complaint in the U.S. International Trade Commission against multiple rivals, alleging they infringe a patent related to its products.

Neptune claims several companies are importing or selling krill-based pastes and oils that directly or indirectly infringe on its U.S. Patent Number 8,278,351. The complaint targets several companies, including Enzymotec Ltd., Aker BioMarine AS, Olympic Seafood AS, Avoca Inc. and their related entities.

"The filing of the complaint is consistent with our philosophy that infringing competitors must be held accountable for their actions," Neptune President and CEO Henri Harland said in a statement. "This approach will enhance our business position as the leader and the innovator in this market."

Neptune seeks an order prohibiting the companies from importing, marketing or selling in the U.S. their krill-based products that allegedly infringe the '351 patent. The ITC is expected to formally commence its investigation within the next month, and the case will take between 15 and 18 months to conclude, Neptune said.

"When a company infringes our patents, without our permission or a license, we owe it to our shareholders and investors to protect the patents through every means available to us," Harland said.

The patent relates to a process for extracting oils from Antarctic krill, which are used in dietary supplements. The company's two flagship products are Neptune Krill Oil and ECO Krill Oil, and generally come in capsule form.

The complaint was filed days after Neptune announced the U.S. Patent and Trademark Office allowed the company a second continuation patent for the '351 patent and U.S. Patent Number 8,030,348. The continuation application contains a single claim related to Antarctic krill oil products, covering most krill oil products currently sold in the U.S., Neptune said.

During the patent prosecution process, Neptune said it provided the USPTO with all prior art references directed to the '351 and '348 patents. Aker BioMarine requested the patents be re-examined.

The '351 patent was issued by the USPTO in 2011. Days after the patent was issued, Neptune sued Enzymotec, Aker BioMarine and others in Delaware for patent infringement. According to Neptune's complaints, krill oil lowers "bad" LDL cholesterol, reduces chronic inflammation and improves cognitive function.  

On Wednesday, Aker BioMarine announced that a third Neptune patent, U.S. Patent Number 8,057,825, had been rejected by the USPTO during re-examination.

Aker BioMarine, Avoca and Enzymotec couldn't be reached for comment late Wednesday.

The patent-in-suit is U.S. Patent Number 8,278,351.

Counsel and case information was not immediately available.

--Additional reporting by Lana Birbrair. Editing by Jeremy Barker.  

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Jon Graves  Senior Counsel Reston
Stephen Smith  Partner Washington, DC, Reston
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