DCT

2:16-cv-02314

Aker Biomarine Antarcitic As v. Luhua Biomarine Shandong Co Ltd

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:16-cv-02314, D. Nev., 10/03/2016
  • Venue Allegations: Plaintiff alleges venue is proper in the District of Nevada because Defendants have transacted business, presented infringing products at a Las Vegas trade show, and committed acts of patent infringement in the district.
  • Core Dispute: Plaintiff alleges that Defendants’ krill oil nutraceutical products infringe a patent related to specific krill oil compositions.
  • Technical Context: The technology concerns compositions of krill oil, a popular dietary supplement valued for its high concentration of omega-3 fatty acids, phospholipids, and the antioxidant astaxanthin.
  • Key Procedural History: Subsequent to the filing of this complaint, the asserted patent was the subject of an inter partes review (IPR) proceeding (IPR2018-00295). The U.S. Patent and Trademark Office issued a certificate on February 5, 2021, cancelling all 48 claims of the patent. The patent also contains a terminal disclaimer over a parent patent, U.S. Patent No. 9,034,388.

Case Timeline

Date Event
2007-03-28 U.S. Patent No. 9,320,765 Priority Date
2016-04-26 U.S. Patent No. 9,320,765 Issue Date
2016-10-03 Complaint Filing Date
2017-12-15 IPR Proceeding Filed (IPR2018-00295)
2021-02-05 IPR Certificate Issued Cancelling All Claims of '765 Patent

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

U.S. Patent No. 9,320,765 - "Bioeffective Krill Oil Compositions"

The Invention Explained

  • Problem Addressed: The patent describes a problem with conventional krill oil processing, where transporting frozen krill from the Antarctic for processing can lead to degradation of the material. This results in commercially available krill oil supplements that contain decomposed phospholipids and high levels of free fatty acids, diminishing their quality and bioactivity (’765 Patent, col. 2:3-14).
  • The Patented Solution: The invention is a krill oil composition with specific, high-quality characteristics, including defined concentrations of phospholipids, triglycerides, and astaxanthin esters. These compositions are derived from krill meal that can be processed on-board a ship immediately after capture, which involves a denaturation step to inactivate enzymes and prevent the degradation that occurs with frozen transport (’765 Patent, Abstract; col. 10:1-17). The result is a more stable and potent krill oil product.
  • Technical Importance: The patented approach sought to deliver a higher-purity krill oil by solving the logistical and chemical degradation problems associated with bringing a sensitive biological material from a remote environment to market (’765 Patent, col. 2:3-17).

Key Claims at a Glance

  • The complaint does not specify which claims are asserted, alleging infringement of "at least one claim" (Compl. ¶13). Independent claim 1 is representative of the invention.
  • Independent Claim 1 of the ’765 Patent requires:
    • A krill oil composition comprising Euphausia superba krill oil suitable for oral administration;
    • said krill oil comprising greater than about 3% ether phospholipids w/w;
    • from about 27% to 50% non-ether phospholipids w/w, such that total phospholipids are from about 30% to 60% w/w;
    • from about 20% to 50% triglycerides w/w; and
    • astaxanthin esters in an amount of greater than about 100 mg/kg of said krill oil.
  • The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

  • ICERUBY Krill Oil and ICERUBY Krill Oil Capsules (the "accused products") (Compl. ¶12).

Functionality and Market Context

  • The complaint identifies the accused products as krill oil sold in both bulk and capsule form for nutraceutical purposes (Compl. ¶¶3, 7, 11). Luhua is alleged to manufacture the products, while Infiniti is alleged to import, distribute, and sell them in the United States (Compl. ¶¶11, 15-16). The complaint does not provide any specific technical details regarding the composition of the accused products, beyond the conclusory allegation that they meet the limitations of the patent.

IV. Analysis of Infringement Allegations

The complaint pleads infringement in a conclusory manner, stating that the accused products "practice each and every limitation of at least one claim" without mapping specific product features to claim elements. No probative visual evidence provided in complaint. The following chart summarizes the allegations for representative Claim 1 based on the general assertions in the complaint.

'765 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A krill oil composition comprising Euphausia superba krill oil suitable for oral administration... The accused products are identified as krill oil products manufactured, sold, and distributed as nutraceuticals in bulk and capsule form. ¶¶7, 11, 12, 15 col. 35:34-36
said krill oil comprising greater than about 3% ether phospholipids w/w of said krill oil; The complaint alleges the accused products meet all claim limitations, which includes the required concentration of ether phospholipids. ¶¶13, 17 col. 35:37-38
from about 27% to 50% non-ether phospholipids w/w of said krill oil so that the amount of total phospholipids in the composition is from about 30% to 60% w/w... The complaint alleges the accused products meet all claim limitations, which includes the required concentrations of non-ether and total phospholipids. ¶¶13, 17 col. 35:39-43
from about 20% to 50% triglycerides w/w of said krill oil, The complaint alleges the accused products meet all claim limitations, which includes the required concentration of triglycerides. ¶¶13, 17 col. 35:43-44
and astaxanthin esters in amount of greater than about 100 mg/kg of said krill oil. The complaint alleges the accused products meet all claim limitations, which includes the required concentration of astaxanthin esters. ¶¶13, 17 col. 35:45-47
  • Identified Points of Contention:
    • Factual Question: The central dispute would concern the actual chemical composition of the accused ICERUBY products. The complaint offers no factual evidence (e.g., chemical analysis, testing data) to support its assertion that the products meet the specific quantitative ranges for phospholipids, triglycerides, and astaxanthin esters required by Claim 1. This would be a primary focus of discovery.
    • Scope Questions: The interpretation of the term "about," which qualifies every numerical range in Claim 1, would be a critical point of contention. The parties would likely dispute whether this term allows for a meaningful deviation from the recited values or if it is limited to minor variations attributable to measurement error.

V. Key Claim Terms for Construction

  • The Term: "about"
  • Context and Importance: This term is used to qualify every numerical limitation in independent claim 1 (e.g., "about 3%," "about 30%," "about 100 mg/kg"). The construction of "about" is therefore fundamental to the scope of the claims. Its definition will directly determine whether the measured composition of the accused products falls inside or outside the claimed ranges. Practitioners may focus on this term because, in a case centered on quantitative thresholds, its interpretation can be dispositive of infringement.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The patent does not provide an explicit definition for "about," which may support giving the term its plain and ordinary meaning of "approximately" or "close to." The repeated and consistent use of the term before each numerical value in the claims suggests an intentional effort to avoid being limited to the exact numbers recited.
    • Evidence for a Narrower Interpretation: A party may argue that the specification's numerous tables detailing specific compositional data (e.g., Tables 9, 17A, 20A) provide a precise context that should limit the scope of "about." This argument would suggest the term is intended to cover only the inherent variability of the measurement techniques used, rather than a substantial deviation from the claimed figures.

VI. Other Allegations

  • Willful Infringement: The complaint alleges that Defendants' infringement is willful (Compl. ¶¶14, 18). The sole factual basis provided for this allegation is knowledge of the ’765 patent "at least as of the date when it was notified of the filing of this action" (Compl. ¶¶21, 26). This is an allegation of post-suit willfulness, as no facts are alleged to support pre-suit knowledge of the patent.

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

The analysis of this dispute, based on the complaint and the patent's subsequent history, raises several fundamental questions for the court.

  • Threshold Legal Question: The most critical issue is the legal effect of the post-filing cancellation of all claims of the '765 patent. A central question for the court will be whether this action can be maintained for past damages when the asserted patent claims have been cancelled ab initio through an inter partes review proceeding, effectively rendering them void as if they had never issued.

  • Evidentiary Question: Presuming the case could proceed, a key evidentiary question would be one of compositional fact: what is the precise chemical composition of the accused ICERUBY products? The outcome of the infringement analysis would depend entirely on empirical evidence, such as third-party laboratory testing, establishing whether the products meet the specific quantitative limitations of the asserted claims.

  • Claim Construction Question: The primary legal question for the infringement analysis would be one of definitional scope: how broadly should the term "about" be construed? The court's interpretation of this single word would define the boundaries of every numerical range in the asserted claims and would therefore be a decisive factor in the infringement determination.