Neptune has announced that the United States Patent and Trademark Office (“USPTO”) recently issued a Right of Appeal Notice in an inter partes re-examination of Neptune’s U.S. Patent No. 8,030,348 (“the ‘348 Patent”). Despite the USPTO’s decision, the ‘348 Patent is still valid as Neptune has the right to appeal, which it intends to do.
According to the company, Enzymotec, in what Neptune claims is yet another clear attempt to shift focus from the on-going International Trade Commission (“ITC”) investigation of its infringement of other Neptune patents, issued a press release addressing the ‘348 Patent decision. However, said Neptune, Enzymotec failed to highlight that the decision has no impact on the ITC investigation into infringement of Neptune’s other composition of matter patents, as well as related federal court actions initiated by Neptune against Enzymotec and its distributors. Furthermore, said the company, the decision has no impact on Neptune’s license agreements with Rimfrost and Aker BioMarine.
The ITC operates independently of the USPTO and, in any event, the ‘348 Patent is not included as part of the ITC’s investigation, which is focused on Neptune’s composition of matter patents numbered US 8,278,351 and US 8,383,675, Neptune said, continuing that the suggestion that a rejection of a parent patent will lead to the same for continuation patents, which have different claims, is plainly untrue. Neptune believes that all other patents remain valid and enforceable. In addition, and despite all the re-examinations and reviews filed by its competitors, the USPTO continues to grant patents to Neptune, the company notes.
Neptune said that it remains confident in its legal strategy and will continue to actively defend its intellectual property. It will continue to pursue Enzymotec before the ITC, with the ITC hearing (trial) scheduled to commence on April 28, 2014. A decision will be rendered by the Administrative Law Judge (“ALJ”) within a few months afterwards. Should the ITC rule in favour of Neptune and Acasti, then Neptune believes that Enzymotec would be banned from importing infringing products in the USA.
