On December 19, 2011, the United States Patent and Trademark Office granted Aker BioMarine‘s request for re-examination of US patent number 8,030,348 assigned to Neptune Technologies & Bioressources.
"We are very confident with regard to our freedom to operate from Neptune‘s patents worldwide, and this decision from the USPTO confirms what we already knew, namely that the ‘348 patent was only granted because the USPTO was not provided with relevant prior art during its prosecution. Neptune should now withdraw its frivolous lawsuits, stop sending intimidating letters to distributors and marketing companies, and rather focus on competing fairly in the marketplace", Aker BioMarine‘s Executive Vice President for marketing and sales, Matts Johansen said on the company's website.
"As to the likely outcome of the re-examination, the industry should take guidance from the USPTO‘s publically available statistics which shows that in 89% of cases where re-examination is granted the claims are either changed (45%) or cancelled completely (44%).
We are aware that Neptune‘s recent lawsuits have created some uncertainty in the marketplace, and encourage interested parties to contact us with remaining questions or doubts in this regard."
Neptune Technologies & Bioressources said it welcomes the opportunity to reconfirm the validity of its Patent. "Contrary to Aker’s press release, the mere grant of the request to re-examine Neptune’s ‘348 patent does not mean that the U.S. Patent & Trademark Office has confirmed that the patent should not have been granted. In fact, while the USPTO grants approximately 95% of all requests for reexamination, in a majority of cases, the USPTO confirms the validity of the claims in the patent or grants amended claims. In addition, Aker’s assertion that the ‘348 patent was “only granted because the USPTO was not provided with relevant prior art during its prosecution” is false, the company stated.
Henri Harland, President and CEO of Neptune, stated: “Our ‘348 patent went through a rigorous examination in the USPTO, and all the relevant arguments presented by Aker in support of its re-examination request have already been considered by the USPTO. Neptune welcomes the opportunity to again vet the patentability of our claims before the USPTO as we are confident that the claims of the patent will be reconfirmed, notwithstanding Aker’s misleading characterization of the alleged prior art. Further, we note that in its press releases, Aker has not denied that it infringes the ‘348 patent. therefore, we expect that at the conclusion of the litigation process, Aker, Schiff and all the other defendants will be found to have infringed one or more valid claims of Neptune’s ‘348 patent, and will be permanently enjoined from making, using, selling, and offering to sell in the United States krill oil products.”
