On August 12, 2016, Aker BioMarine Antarctic AS of Norway and Aker BioMarine Manufacturing, LLC of Houston, Texas (collectively, “Aker”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.
The complaint alleges that the following entities (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain krill oil products and krill meal for production of krill oil products that infringe one or more claims of U.S. Patent Nos. 9,028,877 (the ‘877 patent), 9,078,905 (the ‘905 patent), 9,072,752 (the ‘752 patent), 9,320,765 (the ‘765 patent), and 9,375,453 (the ‘453 patent) (collectively, the “asserted patents”):
- Olympic Holding AS of Norway
- Rimfrost AS of Norway
- Emerald Fisheries AS of Norway
- Avoca Inc. of Merry Hill, North Carolina
- Rimfrost USA, LLC of Merry Hill, North Carolina
- Rimfrost New Zealand Limited of New Zealand
- Bioriginal Food & Science Corp. of Canada
According to the complaint, the asserted patents generally relate to krill oil products and methods of making krill oil products. In particular, the asserted patents describe methods for treating krill to denature the lipases and phospholipases present in krill, and extracting the oil with a polar solvent to produce krill oil having certain characteristics. The produced krill oil products, which include krill oil capsules, contain specific ranges of ether and non-ether phospholipids, triglycerides, omega-3 fatty acids, and/or astaxanthin.
In the complaint, Aker states that the Proposed Respondents import and sell products that infringe the asserted patents. The complaint specifically refers to products that incorporate Rimfrost Krill Oil or Rimfrost Sublime as infringing products.
Regarding domestic industry, Aker states that its processes and products practice numerous claims of each of the asserted patents. Aker further states that it engages in a broad range of qualifying domestic industry activities in the U.S., including manufacturing products that practice the asserted patents. Aker specifically refers to a facility in Texas where it manufactures domestic industry products.
As to related litigation, Aker states that it is currently engaged in litigation against the Proposed Respondents in the U.S. District Court for the District of Delaware, where it is asserting the ‘877 and ‘905 patents.
With respect to potential remedy, Aker requests that the Commission issue a limited exclusion order and cease and desist orders directed at the Proposed Respondents and related entities.