Schiff Nutrition Files for Stay in Krill Oil Patent Infringement Case

January 24, 2012, by Mandour & Associates, APC

Los Angeles – Schiff Nutrition International, Inc. announced that it along with Aker BioMarine Antarctic USA, Inc., and Aker BioMarine ASA (collectively, Aker) have filed a motion to stay the patent infringement lawsuit filed by Neptune Technologies & Bioressources (Neptune).

The patent infringement complaint, filed in a Delaware federal court, alleges that Schiff MegaRed infringes U.S. patent 8,030,348, which was issued to Neptune in October 2011. No rulings or injunctions have been placed against Schiff and Aker at this point, and the mere fact that Neptune has filed claims against them has not in any way affected Schiff’s ability to sell and promote its krill oil.

A motion to stay is a request to temporarily stop a case or halt proceedings. Courts can subsequently lift the stay and resume proceedings, however a stay is sometimes used as a strategy to postpone proceedings indefinitely.

The motion to stay for this case follows Schiff and Aker’s request for the United States Patent and Trademark Office (USPTO) to re-examine the Neptune ’348 patent. In its request to the USPTO, Aker cited several prior art references that were not included in Neptune’s patent application. By granting the re-examination request, the USPTO has issued an initial rejection of all twenty one claims of the ’348 patent. According to statistics provided by the USPTO, re-examination requests take on average three years for a decision, and of the re-examination certificates issued, claims were modified or cancelled in eighty nine percent of the cases.

In July 2011, Schiff and Aker entered into an indemnity supply agreement in which Aker agreed to supply Schiff with its Marine Stewardship Council certified krill oil. The agreement also protects Aker from any losses incurred as a result the patent infringement lawsuit. Under the same supply agreement, Schiff and Aker have agreed to collaborate on future innovations for the nutrition industry.

Schiff Nutrition International, Inc. is a global leader of vitamins, nutritional supplements, and meal replacement bars. Its portfolio consists of well-known brands such as Schiff Move Free, Schiff MegaRed, Schiff Mega-D3, and Tiger’s Milk nutrition bars. In business since 1937, Schiff’s corporate headquarters, manufacturing and distribution facilities, are located in Salt Lake City.