Canada's Neptune Technologies & Bioressources says it will appeal a decision by the European Patent Office (EPO) to revoke a patent protecting its NKO-branded krill Omega 3 ingredient.
At a hearing in Munich on 14 December, the EPO's Opposition Division heard Norway's Aker BioMarine and Israel's Enzymotec, both krill ingredient suppliers, dispute European Patent EP1417211B1 on the basis of "insufficiency of disclosure".
Their opposition centred on a flavonoid known as lucenin-2. According to Neptune, its presence in NKO is unique, but its rivals told EPO officials that tests had shown it was not present in the krill ingredient. The EPO, which will not publish its full decision until the New Year, found in their favour and revoked the patent.
In a statement, Aker said: "Originally, Neptune had claimed that their product contained a novel flavonoid compound, but prior to the hearing the patentee admitted to the fact that the flavonoid they had described in the patent application was indeed a well known flavonoid known as lucenin-2.
"When repeating Neptune's patented invention in preparation for the hearing, the independent analytical labs appointed by the opponents could not detect the presence of any novel or known flavonoid."
But Neptune has launched a vigorous defence of the patent and insisted it will appeal the EPO's decision at the earliest opportunity. Tina Sampalis, Neptune's chief scientific officer, said: "The key part of the argument by Aker and Enzymotec was that their tests failed to show the presence of lucenin-2. However, their tests were not sensitive to detect lucenin-2 at the levels present in NKO and thus their presentation is misleading. The evidence presented was not accurate and we will have our chance to prove this in the appeal."
Sampalis also disputed the relevance of the assertion by Aker and Enzymotec that lucenin-2 was a "well known" flavonoid and was not therefore unique to NKO."The key is that it had never before been isolated from marine sources," she said. "This remains novel."
The stage is now set for a long, drawn out battle. Neptune's appeal cannot be filed until the EPO issues its written decision, probably some time in January. The appeal is unlikely to be heard by the EPO's Technical Board of Appeal before 2011, and possibly even later than that.
Sampalis said: "This is an interlocutory decision of the Opposition Division. Once the OD has issued its written decision, some time in the New Year, Neptune will file an appeal and the decision to revoke will be suspended until the Technical Board of Appeal at the EPO has heard the appeal, sometime in 2011 or 2012 — or possibly later. Until the decision of the appeal the patent remains enforceable. We believe in our patents and we will defend them."
This is not the first time suppliers of ingredients derived from the tiny crustacean krill have clashed. At November's Functional Ingredients Europe trade show in Frankfurt, the German authorities seized marketing materials belonging to Aker after Neptune brought an injunction related to an alleged breach of Novel Foods Regulation. Since that incident, Aker has achieved Novel Foods approval for its Superba krill oil from the Finnish Food Safety Authority, Evira. According to EU law member states may approve novel food status providing there is no opposition from the European Food Safety Authority (EFSA). As of press time, the approval from Evira was confirmed and approval from EFSA was imminent.