Aker Biomarine Antarctic As v. Olympic Holding As

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Aker BioMarine Antarctic AS (Norway)
  • Defendant: Olympic Holding AS; Rimfrost AS; Emerald Fisheries AS; Rimfrost USA, LLC; Avoca Inc.; Bioriginal Food & Science Corp.
  • Plaintiff’s Counsel: Venable LLP
• Case Identification: 1:16-cv-00035, D. Del., 06/24/2016
• Venue Allegations: Venue is alleged in the District of Delaware because the defendants are said to have transacted business in the district, and at least one defendant, Rimfrost USA, LLC, is a Delaware limited liability company.
• Core Dispute: Plaintiff alleges that Defendants’ krill oil products, and the methods used to produce them, infringe two U.S. patents related to krill oil compositions and methods for processing krill to preserve bioactive components.
• Technical Context: The technology lies in the field of nutritional supplements, focusing on methods to extract high-quality oil from Antarctic krill by preventing enzymatic degradation that can occur during harvesting and transport.
• Key Procedural History: The complaint alleges that the named inventor of the patents-in-suit is a former employee of the Plaintiff who was subsequently hired by Defendant Rimfrost AS. It further alleges that Rimfrost AS previously held a license from Plaintiff to related Australian patents, which was later terminated. Post-filing, all asserted claims of both patents-in-suit were cancelled in Inter Partes Review (IPR) proceedings before the U.S. Patent and Trademark Office.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,028,877 - “Bioeffective Krill Oil Compositions” (Issued May 12, 2015)

The Invention Explained

• Problem Addressed: The patent describes that when krill are frozen and transported over long distances for processing, the oil within them can degrade due to enzymatic activity, resulting in decomposed phospholipids and high levels of free fatty acids ’877 Patent, col. 2:4-14
• The Patented Solution: The invention claims a method for processing freshly caught krill, preferably on board a ship, that involves a denaturation step prior to oil extraction ’877 Patent, col. 9:26-34 This step, which can be achieved through heating, is designed to inactivate enzymes like lipases and phospholipases, thereby preserving the quality and stability of the krill material for subsequent extraction of a higher-quality oil with specific chemical compositions ’877 Patent, col. 9:48-61
• Technical Importance: This on-board denaturation process was designed to improve the quality and stability of the final krill oil product by preventing the enzymatic breakdown that occurs during conventional transport and storage of raw, frozen krill ’877 Patent, col. 9:51-61

Key Claims at a Glance

The complaint asserts independent claims 1 and 11 Compl. ¶¶45-46 Compl. ¶52

• Independent Claim 1: A method for producing krill oil, with key elements including:
  • Providing krill
  • Treating the krill to "denature lipases and phospholipases" to create a "denatured krill product"
  • Performing the providing and treating steps on a ship
  • Extracting oil from the denatured product with a polar solvent to yield a krill oil with specific weight/weight (w/w) percentages of ether phospholipids, non-ether phospholipids, and triglycerides
• Independent Claim 11: A method for producing krill oil, with key elements including:
  • Obtaining a "denatured krill product" made by treating freshly harvested krill to denature its lipases and phospholipases
  • Extracting oil from the denatured product with a polar solvent to yield a krill oil with the same specific w/w percentages as recited in claim 1

U.S. Patent No. 9,078,905 - “Bioeffective Krill Oil Compositions” (Issued July 14, 2015)

The Invention Explained

• Problem Addressed: The ’905 Patent shares a common specification with the ’877 Patent and addresses the same problem of krill oil degradation during conventional processing ’905 Patent, col. 2:4-14
• The Patented Solution: Rather than claiming the process, this patent claims the resulting product: an encapsulated krill oil composition defined by a specific concentration of "ether phospholipids" ’905 Patent, claim 1 The specification suggests that this particular composition results from improved processing methods that prevent degradation ’905 Patent, col. 9:51-61
• Technical Importance: The claimed composition, characterized by its specific phospholipid profile, is described as being more "bioeffective" for providing health benefits such as anti-inflammation, improved insulin resistance, and improved blood lipid profiles ’905 Patent, abstract

Key Claims at a Glance

The complaint asserts independent claim 1 Compl. ¶¶74-75

• Independent Claim 1: An encapsulated krill oil product, with key elements including:
  • A capsule containing an effective amount of krill oil
  • The krill oil comprises from about 3% to about 15% w/w ether phospholipids

III. The Accused Instrumentality

Product Identification

The accused products are krill oil dietary supplements, including those sold under the brand name RIMFROST SUBLIME Krill and as private label products, such as KIRKLAND SIGNATURE™ KRILL OIL Compl. ¶9

Functionality and Market Context

The accused products are krill oil supplements sold to consumers in soft-gel or capsule form Compl. ¶9 The complaint alleges that the products are manufactured through a multi-step process involving several defendants. This process is alleged to begin with the harvesting and on-board processing of fresh krill into a "denatured krill product" on the vessel "Juvel" Compl. ¶37 This intermediate product is then allegedly shipped to a facility in North Carolina where the final krill oil is extracted using ethanol, a polar solvent, before being encapsulated and sold in the United States Compl. ¶38 The complaint provides a flow chart from Defendant Rimfrost, which depicts the processing of krill from harvesting at sea to the final oil product Compl. ¶37, Exhibit I

IV. Analysis of Infringement Allegations

9,028,877 Patent Infringement Allegations

• Identified Points of Contention:
  • Functional Questions: A primary question may be whether the defendants' on-board processing of krill on the "Juvel" vessel performs the specific function of "denatur[ing] lipases and phospholipases" as required by the claim, or if it is a different process (e.g., for creating meal) that may not meet this limitation.
  • Evidentiary Questions: The allegation that the final accused products meet the precise weight-percentage ranges for multiple lipid components will depend on chemical testing and discovery. The complaint bases this allegation on "information and belief" Compl. ¶50

9,078,905 Patent Infringement Allegations

• Identified Points of Contention:
  • Compositional Questions: The central issue for this patent is purely compositional. The analysis will turn on factual evidence from testing of the accused products to determine if they contain "from about 3% to about 15% w/w ether phospholipids."

V. Key Claim Terms for Construction

The Term: "denature lipases and phospholipases" ('877 Patent, Claim 1)

• Context and Importance: This term is central to the asserted method claims of the ’877 Patent. The infringement analysis may depend on whether the defendants’ on-board processing of krill meets this functional requirement.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification suggests denaturation can be achieved by various means, including "thermal stress or by other means," and provides an example of heating to a temperature of "about 50° C. to about 100° C." '877 Patent, col. 9:32-34 '877 Patent, col. 9:49-50
  • Evidence for a Narrower Interpretation: The patent's objective is to prevent enzymatic degradation to preserve oil quality ('877 Patent, col. 9:51-61). A party could argue that this purpose limits the term to processes specifically proven to achieve that enzymatic inactivation, not merely any heating or processing step performed for other reasons.

The Term: "ether phospholipids" ('905 Patent, Claim 1)

• Context and Importance: This term defines the chemical composition at the heart of the ’905 Patent's asserted claim. Practitioners may focus on this term because infringement hinges entirely on the presence and quantity of this specific chemical class in the accused product.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification provides a structural definition, stating an ether phospholipid is one "having an ether bond at position 1 the glycerol backbone" and lists examples such as alkylacylphosphatidylcholine (AAPC) '905 Patent, col. 8:54-58
  • Evidence for a Narrower Interpretation: The interpretation could be contested based on the specific analytical methods required to identify and quantify these compounds or whether the term is limited to the specific examples disclosed in the specification.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that various defendants induced infringement by establishing a sales channel for the accused products and specifically intending for their partners and customers to directly infringe Compl. ¶¶58-62 Compl. ¶¶77-81 Knowledge is alleged based on the defendants’ hiring of the named inventor and their prior licensing of related Aker patents Compl. ¶¶30-35
• Willful Infringement: The complaint alleges willful infringement based on pre-suit knowledge of the patent applications that matured into the patents-in-suit Compl. ¶¶65, 69 This knowledge is allegedly evidenced by Defendant Rimfrost's hiring of the inventor in 2011 and its 2012 license to Aker’s related Australian patents Compl. ¶¶30, 33, 65

VII. Analyst’s Conclusion: Key Questions for the Case

While the complaint was filed on grounds of patent infringement, the most significant legal development occurred post-filing with the cancellation of all asserted claims of both the '877 and '905 patents in Inter Partes Review proceedings. This context reshapes the core issues.

• A primary issue raised by the complaint was one of process functionality: did the defendants' on-board processing of krill perform the specific enzyme denaturation required by the '877 patent's claims, or was it a distinct process for making krill meal that fell outside the claim scope?
• A second central question was one of chemical composition: would testing reveal that the accused krill oil products contain the specific type and amount of "ether phospholipids" required to infringe the claims of the '905 patent?
• Ultimately, the dispositive question for the case became one of patentability. The cancellation of all asserted claims suggests that the U.S. Patent and Trademark Office determined the claimed inventions were not patentable over the prior art, rendering the infringement allegations moot.