Neptune and Acasti, a Neptune subsidiary, have announced that they have been unable to conclude a final settlement agreement through mediation with Enzymotec that would resolve the International Trade Commission (ITC) investigation into infringement of Neptune’s composition of matter patents, as well as related federal court actions initiated by Neptune against Enzymotec and its distributors. Neptune and Acasti will now pursue Enzymotec through the ITC and the federal district court in Delaware.
On February 14, 2014 Neptune and Acasti announced that they would participate in the ITC Mediation Program, in a final attempt to reach a mutually satisfactory agreement with Enzymotec. Given that this was unsuccessful, the ITC hearing (trial) will commence on April 28, 2014. A decision will be rendered by the Administrative Law Judge (“ALJ”) approximately two to three months afterwards. Should the ITC rule in favour of Neptune and Acasti, then Enzymotec, whose krill oil-based products are produced overseas, would be banned from importing infringing products into the USA.
All of Neptune’s USA patents are currently valid and enforceable, the company said, and Neptune has successfully continued to pursue additional continuation patents in the United States Patent and Trademark Office (USPTO). Furthermore, the review of certain Neptune patents by the USPTO is nothing new and were previously disclosed by Neptune, including the pending inter partes review regarding Neptune’s ‘351 composition of matter patent (No. 8,278,351).
Enzymotec’s recent press release highlights mere procedural aspects of the various post-grant proceedings on the Neptune patents. For instance, the pending inter partes review of Neptune’s ‘351 composition of matter patent (No. 8,278,351), which Neptune has already disclosed, has been instituted by the USPTO. Enzymotec is simply using scare tactics, according to Neptune.
Neptune said that it remains resolute in preventing infringing products from entering the U.S. market. As previously announced, based on the strength of Neptune and Acasti’s patents, settlement agreements were concluded with the eight other respondents named in the ITC investigation. Only Enzymotec remains outstanding.
