By Eric Schweibenz and Lisa Mandrusiak
On April 13, 2017, ALJ Dee Lord issued Order No. 13 in Certain Krill Oil Products And Krill Meal For Production Of Krill Oil Products (Inv. No. 337-TA-1019) construing several terms at issue in the investigation.

By way of background, this investigation is based on an August 12, 2016 complaint filed by Aker BioMarine Antarctic AS and Aker BioMarine Manufacturing, LLC alleging violation of Section 337 by way of unlawful importation into the U.S., selling for importation, and/or selling within the U.S. after importation certain krill oil products and krill meal for production of krill oil products that infringe one or more claims of U.S. Patent Nos. 9,028,877; 9,078,905; 9,072,752; 9,320,765; and 9,375,453. See our August 17, 2016 and September 14, 2016 posts for more details on the complaint and Notice of Investigation, respectively. U.S. Patent No. 9,078,905 was subsequently withdrawn from the Investigation.

In the Order, ALJ Lord addressed the following terms: (1) “krill oil,” (2) “polar krill oil,” (3) “krill” and “Euphausia superba,” (4) “denatured krill product,” and (5) “astaxanthin.”

Complainants proposed that “krill oil” be given its plain and ordinary meaning of oil produced from krill, whereas Respondents argued that it should be construed as “oil virtually free of enzymatically decomposed oil constituents that are obtained from krill following protein denaturation” based on a description in the patent specification referring to this passage as the “present invention.” ALJ Lord agreed with Complainants, and determined that “krill oil” should have its plain and ordinary meaning, declining to include Respondents’ additional limitations.

Similarly, Complainants argued that “polar krill oil” should simply be construed as krill oil containing polar lipids, whereas Respondents argued that the krill oil containing polar lipids must also be obtained from supercritical extraction with polar entrainer based on an embodiment in the specification. In rejecting Respondents’ argument, ALJ Lord noted “[t]here is noting in the specification to suggest that Respondents’ two proposed limitations, supercritical fluid extraction and polar entrainer, are the defining features of polar krill oil in the asserted patent.” Thus, the ALJ determined that “polar krill oil” shall be construed to mean krill oil containing polar lipids.

Although there was no dispute about the meaning or technical scope of the term “krill” as biological organisms of the order Euphausiacea, and Euphausia superba as a particular species that lives in Antarctic waters, the parties disputed whether or not the terms include only whole animals or also include processed pieces and parts. Complainants argued that the plain and ordinary meaning of krill includes krill parts, whereas Respondents argued that the specification indicates that krill does not include processed pieces or parts. ALJ Lord noted that this dispute is only relevant to interpreting the phrase “treating said krill,” but because this phrase was not offered for construction and there was no dispute regarding “krill,” she declined to construe the terms.

With regard to “denatured krill product,” the parties offered very similar constructions, explaining that the product was the result of treating krill to denature lipases and phospholipases. ALJ Lord noted that neither construction addresses the matter that is actually in dispute, which is whether denatured krill product is covered by the claim if it undergoes further treatment after it is denatured. In this situation, ALJ Lord determined that it was not necessary to construe “denatured krill product.” The ALJ noted that the parties could have sought construction of the term “said denatured krill product” or the “comprising” aspect of the claim stating “[t]he parties have not proposed a claim term for construction that resolves this issue; meanwhile, their agreement as to what constitutes ‘denatured krill product’ makes construction of that term unnecessary.”

The parties’ dispute with regard to “astaxanthin” centered on whether the molecule included both cis and trans stereoisomers (Complainants’ position) or only the trans stereoisomer (Respondents’ position). Complainants argued that the patent did not distinguish between the cis and trans forms in the specification or claims, instead opting to use the generic term “astaxanthin.” Respondents argued that the express definition section of the patents used an image of the trans stereoisomer, and the patent should be so limited. ALJ Lord agreed that the patentees’ express definition of the term governs, and thus “astaxanthin” was construed as trans-astaxanthin.