Battle Over U.S. Krill Oil Patent

By Mike Urch, SeafoodSource contributing editor
13 February, 2012 – Krill oil is the world’s best source of phospholipid enriched omega-3 oils, and food manufacturers are desperate to get their hands on a reliable, consistent source of it. This is the view of Dimitri Sclabos, general manager of Tharos, a consultancy based in Chile that has been advising on the utilization of krill in the Southern Ocean for 20 years.

“Krill oil is probably the hottest ingredient in the food market today,” he said. “It is used as the oil itself in capsule form, or as an ingredient in other foods such as milk, yogurt, etc.”

Because of its unique value as a human health supplement, a battle royal has developed between companies selling krill oil capsules in the United States.

At the end of last year, Norway’s Aker BioMarine, which produces and sells krill oil, won an official re-examination of a patent granted to another company selling krill oil, Neptune Technologies & Bioresources of Canada.

The U.S. patent awarded to Neptune — No. 8,030,348, known as the ‘348 patent — discloses and claims novel omega-3 phospholipid compositions suitable for human consumption. With the IP (intellectual property) status accorded by the patent, rival companies such as Aker BioMarine and Enzymotec, an Israeli firm, were prevented from selling their krill oils in the country because they had similar core components.

According to Aker BioMarine, Neptune was only assigned the patent because the United States Patent and Trademark Office (USPTO) was not given all the relevant information about the “uniqueness” of its product.

Sclabos agrees that the IP awarded to Neptune should not have been granted. “USPTO lacked key information regarding the novelty on Neptune’s application,” he said, “as well as the information that the European patent office had already declined an application due to lack of novelty.”

Only 1 percent of patent review applications are usually granted, and the fact that this one is going ahead has big implications for not just the three companies mentioned above but others such as Nippon Suisan of Japan that are also attempting to break into this lucrative field.

The protagonists in the litigation have agreed to a cessation in hostilities while the patent is being reviewed, although Neptune says during the re-examination process “the ‘348 patent remains valid and enforceable.” Also, it believes that at the end of this process, “the validity of the claims of the ‘348 patent will be reconfirmed.”

However, Matts Johansen, Aker BioMarine’s executive VP for marketing and sales, says “in 89 percent of cases where re-examination by the USPTO is granted, the claims are either changed (45 percent) or cancelled completely (44 percent).”

So why all this fuss? Not only is krill oil a natural source of the omega-3 fatty acids — eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA) — plus the antioxidant astaxanthin, it is unique in that the majority of the fatty acids are provided in phospholipid form. This means there is increased tissue accumulation of the fatty acids and improved blood lipid profiles. Krill oil therefore has a much better health-boosting effect than fish and other omega-3 containing oils.

The health supplement industry is worth millions of dollars, so it is small wonder that Aker BioMarine and Neptune are fighting over the patent, particularly when the share prices of both companies are in the doldrums.

Neptune boasts that its krill oil is “the only omega-3 source offering the first and only clinically proven omega-3 marine phospholipids.” Meanwhile, since Aker BioMarine owns a trawler actually fishing for krill in Antarctic waters, it can claim that it has “100 percent traceability from the Antarctic sea to the end user” for its krill products. Furthermore, the company points out that only its Antarctic krill fishery has been awarded Marine Stewardship Council certification.

The arguments will undoubtedly rumble on, but it is to be hoped that the re-examination of the ‘348 patent will bring them to an end so that all krill oil producing companies can compete on a level playing field to the eventual benefit of the U.S. public. New players utilizing new technologies and with different cost structures entering the marketplace will make prices more competitive.

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Picture of Dimitri Sclabos
Dimitri Sclabos

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