On January 29, 2013, Neptune Technologies & Bioressources Inc. and Acasti Pharma Inc. (“Acasti”) (collectively, “Neptune”) — both of Canada — 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 omega-3 extracts from marine or aquatic biomass and products containing same that infringe one or more claims of U.S. Patent No. 8,278,351 (the ‘351 patent):

  • Aker BioMarine AS of Norway
  • Aker BioMarine Antarctic USA, Inc. of Issaquah, Washington
  • Aker BioMarine Antarctic AS of Norway
  • Enzymotec Limited of Israel
  • Enzymotec USA, Inc. of Morristown, New Jersey
  • Olympic Seafood AS of Norway
  • Olympic Biotec Ltd. of New Zealand
  • Avoca, Inc. of Merry Hill, North Carolina
  • Rimfrost USA, LLC of Merry Hill, North Carolina
  • Bioriginal Food & Science Corp. of Canada  

According to the complaint, the ‘351 patent generally relates to a krill extract comprising omega-3 fatty acids, including eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA), attached to phospholipids wherein the extract is suitable for human consumption.  In particular, the phospholipids carry the EPA and DHA directly into cells, allowing the human body to absorb them very easily.

The complaint states that the Proposed Respondents import and sell products that infringe the ‘351 patent, and specifically refers to various products associated with the Proposed Respondents.

Regarding domestic industry, Neptune asserts that it has invested heavily in engineering, manufacturing, sales, and marketing to commercialize its marine-based phospholipid technology in the U.S.  Neptune states that its NKO product practices the ‘351 patent, and that it has partnered with U.S. companies to manufacture and distribute the NKO product.  In particular, Neptune states that it ships bulk krill oil to the U.S. where it is encapsulated into softgels by one of Neptune’s domestic contractors.  Neptune also states that Acasti advances a range of bioactive proprietary phospholipid ingredients through pharmaceuticals, including prescription medical foods, over-the-counter products, and prescription drugs.  Neptune specifically refers to Acasti’s Onemia product, which it alleges practices the ‘351 patent.  According to the complaint, Acasti partners with U.S.-based companies to manufacture and distribute the Onemia product in the U.S.

As to related litigation, Neptune states that on October 2, 2012, it filed two lawsuits in the U.S. District Court for the District of Delaware alleging that certain of the Proposed Respondents and others infringe the ‘351 patent.  Those cases are currently pending.  Neptune also states that it is involved in other litigations (not involving the ‘351 patent) with some of the Proposed Respondents.  Neptune further states that a request for ex parte reexamination of the ‘351 patent was filed with the USPTO on October 2, 2012, and that that request has been assigned to an Examiner for determination.

With respect to potential remedy, Neptune requests that the Commission issue a permanent exclusion order and a permanent cease and desist order directed to the Proposed Respondents, their subsidiaries, related companies, and agents.