On Oct. 2, Aker BioMarine filed a petition for “Inter Partes” Review of U.S. Pat. No 8,278,351 (the ‘351 Patent) assigned to Neptune.
The ‘351 Patent is subject to ongoing litigation between Aker BioMarine and Neptune in Delaware and before the International Trade Commission (ITC). The petition filed on Oct. 2 includes scientific references that have not previously been presented to or considered by the U.S. Patent & Trademark Office (USPTO). These references and associated experimental evidence from scientific experts establish that the ‘351 Patent claims should not have been granted.
“In the process of defending ourselves in the ongoing ITC case Neptune has brought against us, we have discovered significant prior art not previously disclosed [by Neptune] that we believe the Patent Trials and Appeal Board will identify as detrimental to the claims of the ‘351 Patent,” said Hallvard Muri, CEO, Aker BioMarine. This gives us even more confidence that we will prevail in our cases against Neptune and have the '351 Patent invalidated.”
To date, Aker BioMarine has succeeded with every post-grant challenge of Neptune’s patents. Specifically, the claims of Neptune’s U.S. Pat. No. 8,030,348 (the ‘348 patent), parent to the ‘351 patent, and U.S. Pat. No. 8,057,825 (the ‘825 patent) have been rejected at the Action Closing Prosecution (ACP) stage in separate reexaminations requested by Aker BioMarine. The European Patent Office has likewise invalidated all claims of the European Patent corresponding to the ‘348 and ‘351 patents in an opposition proceeding requested by Aker BioMarine and Enzymotec.
Muri concluded, "From results obtained so far, it is evident that when reexamination and opposition offices worldwide have had a chance to thoroughly review Neptune’s patents they have found the claims to be unpatentable.”