BioMar appealing patent lawsuit that resulted in NOK 23 million fine

BioMar announced 10 March that it plans to appeal a decision made in a recent patent lawsuit that resulted in a NOK 23 million (USD 2.4 million, EUR 2.1 million) fine for the company.

The lawsuit was related to a patented feed process created by STIM, a Norwegian feed producer that has created feeds dubbed “SuperSmolt” and “SuperSmolt FeedOnly.” The two feeds are designed to accelerate the smoltification of salmon – the process all salmon go through when maturing from primarily fresh water to salt water.

That technology was patented by STIM, and the courts found that BioMar Norway had infringed on the patent with feed called Intro Tuning.

“Not until the product was a success and STIM had built interest in the market did BioMar obtain a sample of STIM’s feed, in a way that the company has not been willing to explain the details of in court,” the court states in the initial findings on the patent lawsuit. “It has, however, come to light that this sample was analyzed by BioMar in order to produce an analogous product, allegedly at the request of customers. Through the examination of evidence, the courts find that this course of action is clearly not accepted in the industry and appears clearly blameworthy.”

The finding was welcomed by STIM, who developed the feed using a set of new discoveries related to calcium-sensing receptors in humans.

“American scientists understood that stimulating the same receptors in fish may lead to smoltification,” STIM stated in a press release.  “STIM (previously Europharma) bought the rights to the original SuperSmolt patent in 2008 and developed it further into SuperSmolt FeedOnly that was launched in 2014.”

According to STIM, the lawsuit found that the original patent – a process patent – applied, and the ruling clarified that use of smoltification feed may constitute infringement on the patent.

“Understanding that feed itself is not the issue, but that the actual use of such feeds may be a breach of the patent as the patent claim describes two elements, one being the feed, the other being the addition of PVCR modulators to the rearing water. The responsibility towards the patent holder may then be the fish farmer,” STIM stated.

STIM said it welcomed the judge's initial ruling, and said it was ready to continue to push its case after BioMar announced its appeal.

“The court’s judgment is important for an industry with great need for innovation. STIM is a relatively small company, but we spend large sums every year on research and development,” STIM CEO Jim-Roger Nordly said in a release. “The court’s ruling provides motivation for everyone who puts their money into developing new products and methods that can bring the industry forward. It is a clear signal that it is not acceptable to cheat and copy the innovations of others.”

BioMar’s appeal asserts that the company did not commit any wrongdoing, and that the patents related to STIM’s smoltification technology are invalid.

“BioMar has decided to appeal the judgement on having infringed one of the two existing STIM patents in Norway and violated the Marketing Act. The company does not agree to have copied a technology protected by valid patents or carried out other wrongdoings by the launch of the previous version of their smolt transfer product Intro Tuning,” BioMar stated.

The court's initial judgement didn’t affect BioMar’s ability to continue to produce and sell its current product portfolio in any countries, but the company is engaging in the appeal to free up the technology, it said. It asserted that - for the industry as a whole – patenting something as innovative and ubiquitously beneficial as accelerated smoltification is a step too far.

“BioMar Norway truly believes that a generally-known method to improve smoltification in aquaculture cannot be protected by a patent. As an important contributor to innovation in the industry and a company with a strong record of developing patented technology, we fully respect intellectual property rights,” BioMar Norway Managing Director Håvard Jørgensen said. “We however believe that in this case, we have not infringed any valid patent as the fundamental knowledge existed both internally in BioMar and within the industry prior to the filing of the STIM patent in question. We have continued to develop an approach to aid the smoltification process and by our innovations contributed with new feeds and technology to improve both cost-efficiency and biological impact.”

Despite the lawsuit having relatively little impact on BioMar’s ability to continue to create the feed, according to Jørgensen, the company will continue to fight the court’s decision.

“We will continue to fight for the industry’s right to produce feed to support the growth and health during seawater transfer and smoltification and such give farmers the possibility to implement the feeding strategy of their own choice,” he said.

Currently, BioMar and two other feed companies are challenging STIM’s patent by filing oppositions in the European Patent Office, according to BioMar. According to STIM, the patent process for SuperSmolt is still ongoing; The EPO is considering further applications by the company that would expand the SuperSmolt FeedOnly patent.