European Patent Office Revokes Krill Composition Patent

Neptune Technologies & Bioressources Inc’s (‘Neptune’) European Patent EP1417211B1 has been opposed by Aker BioMarine and the Israeli company Enzymotec. The filed oppositions were dealt with by the European Patent Office (‘EPO’) in a hearing in Munich on December 14th. EPO’s opposition division concluded the hearing to revoke Neptune’s European patent on the basis of insufficiency of disclosure.

The oppositions were partly based on claims of insufficiency of disclosure in the granted European patent, meaning that the patent did not teach someone skilled in the art to repeat the invention with the claimed outcome. 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.

The written decision of the EPO will not be available until early 2010. The decisions of the opposition division are subject to appeal and hence the revocation will not be final until the expiry of the two-month appeal period that starts when the EPO issues its written decision.

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