`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`AKER BIOMARINE ANTARCTIC AS,
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`
`Plaintiff;
`
` v.
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`OLYMPIC HOLDING AS; RIMFROST AS;
`EMERALD FISHERIES AS; RIMFROST
`USA, LLC; AVOCA INC.; BIORIGINAL
`FOOD & SCIENCE CORP.,
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`
`Defendants.
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`
`
`
`
`
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`CA. No. ___________________
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`
`
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`JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Aker BioMarine Antarctic AS (“AKBM,” or “Plaintiff”) files this Complaint
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`against Defendants Olympic Holding AS; Rimfrost AS; Emerald Fisheries AS; Rimfrost USA,
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`LLC; Avoca Inc. and Bioriginal Food & Science Corp. (“Defendants”) for patent infringement
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`and alleges, based on information and belief, personal knowledge and publicly available
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`information, with respect to the infringing activity as follows:
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`THE PARTIES
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`1. Aker BioMarine Antarctic AS (“AKBM”) is a Norwegian corporation with its principal
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`place of business at Oksenøyveien 10, P.O. Box 496. N-1327 Lysaker, Norway.
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`2. Upon information and belief, Olympic Holding AS (“Olympic Holding”) is a Norwegian
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`corporation with its principal place of business at Fosnavåg Brygge Holmsildgata 12, P.O. Box
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`234, N-6099, Fosnavåg, Norway. Olympic Holding is the parent corporation of Rimfrost AS and
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`Emerald Fisheries AS.
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`10510339-v2
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`RIMFROST EXHIBIT 1021 page 0001
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 2 of 17 PageID #: 2
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`3. Upon information and belief, Rimfrost AS is a Norwegian corporation with its principal
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`place of business at Vågsplassen, 6090, Fosnavåg, Norway. Rimfrost AS was formerly known
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`as Olympic Seafood AS and is a wholly owned subsidiary of Olympic Holding.
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`4. Upon information and belief, Emerald Fisheries AS (“Emerald Fisheries”) is a
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`Norwegian corporation with its principal place of business at Fosnavåg Brygge, 6090 Fosnavåg,
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`Norway. Emerald Fisheries is a wholly owned subsidiary of Olympic Holding.
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`5. Upon information and belief, Stig Rune Remøy established Olympic Holding. Stig Rune
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`Remøy is a major shareholder and is chairman and only member of the board of Olympic
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`Holding. Stig Rune Remøy is also chairman of the board of all of Olympic Holding’s
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`subsidiaries, including Rimfrost AS and Emerald Fisheries. Upon information and belief,
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`Olympic Holding controls its subsidiaries Rimfrost AS and Emerald Fisheries regarding the
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`infringing acts described in this Complaint.
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`6. Upon information and belief, Avoca Inc. (“Avoca”) is a Delaware corporation with its
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`principal place of business at 841 Avoca Farm Rd., Merry Hill, North Carolina 27957.
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`7. Upon information and belief, Rimfrost USA, LLC (“Rimfrost USA”) is a Delaware
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`limited liability company with its principal place of business at 841 Avoca Farm Rd. Merry Hill,
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`North Carolina 27957. Rimfrost USA is a joint venture between Rimfrost AS and Avoca. Upon
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`information and belief, Rimfrost AS controls its joint venture Rimfrost USA regarding the
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`infringing acts described in this Complaint.
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`8. Upon information and belief, Bioriginal Food & Science Corp. (“Bioriginal”) is a
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`Canadian corporation with its principal place of business at 102 Melville Street, Saskatoon,
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`Saskatchewan, Canada S7J 0R1.
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`PAGE 2
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`RIMFROST EXHIBIT 1021 page 0002
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 3 of 17 PageID #: 3
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`9. Upon Information and belief, under the direction and control of Olympic Holding and
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`Rimfrost AS, Avoca processes denatured krill products prepared and supplied through the
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`operations of Olympic Holding, Rimfrost AS, Emerald Fisheries and Rimfrost USA to create and
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`sell infringing krill oil products in the United States. These products are marketed and sold in
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`various forms, including soft-gel, emulsion and bulk forms by Rimfrost USA and Bioriginal
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`under the name RIMFROST SUBLIME Krill, and under private label names for sale by others,
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`including Jamieson Laboratories Ltd. and Costco Wholesale Corp. (“Costco”). Costco’s private
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`label krill oil obtained from Defendants is called KIRKLAND SIGNATURE™ KRILL OIL, and
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`is sold in this District. These products are collectively referred to in this Complaint as the
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`Accused Products.
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`JURISDICTION AND VENUE
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`10. This action arises under the patent laws of the United States, Title 35, United States Code
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`§ 1, et seq. This Court has exclusive subject matter jurisdiction over this case for patent
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`infringement under 28 U.S.C. §§ 1331 and 1338(a).
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`11. Avoca and Rimfrost USA are both incorporated in Delaware. Personal jurisdiction exists
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`over all the Defendants, because the Defendants have sufficient minimum contacts with the
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`forum as a result of business conducted within the State of Delaware and this District. Personal
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`jurisdiction also exists specifically over the Defendants, because they, directly or through
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`subsidiaries, intermediaries or joint ventures, make, use, offer for sale, sell, import, advertise,
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`make available and/or market krill oil products and services within this District, that infringe
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`AKBM’s U.S. Patent Nos. 9,028,877 and 9,078,905 (collectively the “Patents-in-Suit”), as
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`described more specifically below.
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`PAGE 3
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`RIMFROST EXHIBIT 1021 page 0003
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 4 of 17 PageID #: 4
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`12. Venue is proper in the in this District under 28 U.S.C. §§ 1391(b)–(c) and 1400(b),
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`because the Defendants have individually transacted business in this District, have committed
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`acts of infringement of the Patents-in-Suit in this District, and more than one Defendant is
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`incorporated in this District.
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`PATENTS-IN-SUIT
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`13. U.S. Patent No. 9,028,877 (“the ’877 Patent”), entitled “Bioeffective Krill Oil
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`Compositions,” is valid and enforceable, and was duly issued in full compliance with Title 35 of
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`the United States Code by the USPTO on May 12, 2015. The ’877 Patent is a continuation of
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`U.S. Patent No. 9,034,388 (“the ’388 Patent) and claims priority from the following series of
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`provisional applications: U.S. Provisional Application No. 61/024,072 filed January 28, 2008;
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`U.S. Provisional Application No. 60/983,446 filed October 29, 2007; U.S. Provisional
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`Application No. 60/975,058 filed September 25, 2007; U.S. Provisional Application No.
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`60/920,483 filed March 28, 2007. A true and correct copy of the ’877 Patent is attached hereto
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`as Exhibit A.
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`14. AKBM is the owner by assignment of the ’877 Patent with sole rights to enforce the ’877
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`Patent and sue infringers.
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`15. U.S. Patent No. 9,078,905 (“the ’905 Patent”), entitled “Bioeffective Krill Oil
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`Compositions,” is valid and enforceable, and was duly issued in full compliance with Title 35 of
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`the United States Code by the USPTO on July 14, 2015. The ’905 Patent is a continuation of the
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`’388 Patent and claims priority from the following series of provisional applications: U.S.
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`Provisional Application No. 61/024,072 filed January 28, 2008; U.S. Provisional Application
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`No. 60/983,446 filed October 29, 2007; U.S. Provisional Application No. 60/975,058 filed
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`PAGE 4
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`RIMFROST EXHIBIT 1021 page 0004
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 5 of 17 PageID #: 5
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`September 25, 2007; U.S. Provisional Application No. 60/920,483 filed March 28, 2007. A true
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`and correct copy of the ’905 Patent is attached hereto as Exhibit B.
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`16.
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`AKBM is the owner by assignment of the ’905 Patent with sole rights to enforce
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`the ’905 Patent and sue infringers.
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`FACTUAL ALLEGATIONS AND BACKGROUND
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`Plaintiff AKBM’s Patented Technology and Pioneering Krill Oil Business
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`17. AKBM is a Norwegian fishing and biotech company that has been harvesting and
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`producing krill and krill oil for the animal, fish feed, food, dietary supplement and
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`pharmaceutical industries in its current form and through its predecessor corporation since 2003.
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`AKBM built its supply chain for krill in the Antarctic and is a leading supplier of krill products,
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`such as krill oil, worldwide.
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`18. AKBM’s krill oil product is sold under the name SUPERBA®. AKBM develops,
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`markets and sells its krill oil produced from sustainably harvested and traceable Antarctic krill.
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`The company uses a unique technology called ECO-HARVESTING® that brings live krill on
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`board its two harvesting vessels “Saga Sea” and “Antarctic Sea”. Aker’s harvesting technology
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`successfully prevents the unnecessary by-catch such as birds and sea mammals and reduces the
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`wastage incurred by traditional methods. As a result of its innovative and environmentally
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`friendly processes, AKBM was the first krill harvester to be awarded the Marine Stewardship
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`Council (“MSC”) Certification, exemplifying its commitment to sustainable fishing of krill.
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`19. AKBM has cooperated with the World Wildlife Fund for Nature (“WWF”) for over a
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`decade, and in January 2015 AKBM established the Antarctic Wildlife Research Fund (“AWR”)
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`together with WWF Norway and the Antarctic and Southern Ocean Coalition (“ASOC”). AWR
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`will raise donations from commercial and private partners in order to facilitate and promote
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`RIMFROST EXHIBIT 1021 page 0005
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 6 of 17 PageID #: 6
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`research on the Antarctic ecosystem, and a Science Advisory Group will evaluate and prioritize
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`scientific research proposals for the Board of the Fund. AKBM also took the initiative to
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`establish the Association for Responsible Krill Harvesters (“ARK”).
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`20. In 2014, AKBM launched U.S.-based krill processing operations in Houston, Texas,
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`through its joint venture company Aker BioMarine Manufacturing LLC.
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`21. AKBM has invested vast sums of money, years of research, capital and labor to develop
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`its novel krill oil processes and compositions embodied and described in the Patents-in-Suit.
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`AKBM utilizes its proprietary and environmentally-friendly ECO-HARVESTING® technology
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`to maintain the nutritional integrity of krill while minimizing environmental impacts. The
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`patented technology claimed in the Patents-in-Suit enables AKBM to produce high quality krill
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`oil with specific concentrations of bioactive ingredients that have been shown to provide health
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`benefits in both humans and animals.
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`22. The Patents-in-Suit are directed to krill oil compositions and processes for making krill
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`oil compositions having specific concentrations of phospholipids and other components that
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`provide enhanced health benefits in humans and animals. The claimed krill oils are extracted
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`from denatured krill products made on-board a ship from fresh krill resulting in krill oil
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`compositions having specific concentrations and ratios of ether and non-ether phospholipids that
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`were found to provide health benefits in a number of areas, including anti-inflammation,
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`antioxidant effects, insulin resistance and improved blood lipid profile.
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`Defendants’ Krill Oil Business, and Infringing Products and Processes
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`23. Throughout its years of operating in the krill oil market, Olympic Holding AS, its
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`subsidiaries, partners and joint ventures have systematically copied and utilized AKBM’s
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`RIMFROST EXHIBIT 1021 page 0006
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 7 of 17 PageID #: 7
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`strategy, methodology and patented technology to bring valuable krill oil products to market in
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`the United States and this District.
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`24. In 2011, Inge Bruheim, the first named inventor of the Patents-in-Suit and a former
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`AKBM employee, was hired by Olympic Seafood AS now Rimfrost AS. Mr. Bruheim is
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`currently research director at Rimfrost AS. Mr. Bruheim was aware of the applications that
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`issued into the Patents-in-Suit before and at the time he was hired by Rimfrost AS.
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`25. When leaving AKBM in 2009, Mr. Bruheim was aware of AKBM's then current business
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`strategy and processing techniques, facilities and capabilities. Specifically, Mr. Bruheim knew
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`that AKBM initially processed denatured krill product in New Zealand with a supercritical fluid
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`extraction process and later had transitioned to an ethanol extraction process through an
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`extraction partner in France. After Mr. Bruheim was hired at Olympic Seafood AS, Rimfrost AS
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`transitioned from processing denatured krill product with a supercritical extraction process in
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`New Zealand to an ethanol extraction process in North Carolina.
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`26. In 2012, AKBM granted Olympic Seafood AS, now Defendant Rimfrost AS, a
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`non-exclusive license to one or more of AKBM’s Australian krill oil patents (“AKBM Australian
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`Krill Oil Patents”). The AKBM Australian Krill Oil Patents are related to the Patents-in-Suit,
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`claim priority from the same patent applications and include claims with the same scope as the
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`Patents-in-Suit. The license was terminated in 2013.
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`27. In a press release of November of 2012, Mr. Bjørnar Kleiven, managing director of
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`Olympic Seafood AS now Rimfrost AS, stated: “As we reviewed Aker BioMarine’s Australian
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`patent portfolio we found that licensing it was necessary to secure Olympic Seafood’s continued
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`right to offer krill oil in Australia” … “With this license in place, we can now offer RIMFROST
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`SUBLIME Antarctic krill oil, with full freedom to operate in the strong and growing Australian
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`PAGE 7
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`RIMFROST EXHIBIT 1021 page 0007
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 8 of 17 PageID #: 8
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`market.” RIMFROST SUBLIME Antarctic krill oil is an Accused Product. See Exhibit C
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`(Rimfrost Sublime Press Release: Olympic Seafood and Aker BioMarine Announce Licensing
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`Agreement for Krill Oil Patents in Australia (Nov. 21, 2012.))
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`28. One or more of the Defendants was aware of or should have been aware of the
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`applications that issued as the Patents-in-Suit at least when Inge Bruheim was hired by
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`Olympic Seafood AS in 2011 or when AKBM granted Olympic Seafood AS, now Rimfrost AS,
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`a non-exclusive license to one or more of AKBM’s Australian Krill Oil Patents in 2012.
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`29. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries act
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`in concert to prepare and provide denatured krill product that is then processed and sold in the
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`United States as the Accused Products. Specifically, denatured krill product for domestic
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`processing is prepared on-board the krill-harvesting vessel “Juvel” owned and operated by
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`Emerald Fisheries in the Southern Ocean. The denatured krill product is shipped by Rimfrost AS
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`to Rimfrost USA, which then provides the denatured krill product to Avoca for processing. See
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`Exhibits D-E (Rimfrost Bills of Lading).
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`30. Upon information and belief, krill harvested on the Juvel undergoes a two-step process
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`for producing krill oil at the direction and control of Olympic Holding, Rimfrost AS, and
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`Emerald Fisheries. As described in the Patents-in-Suit, Emerald Fisheries performs the first step
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`of the process on-board the Juvel by processing fresh Antarctic krill to create a denatured krill
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`product. See Exhibit F1; Exhibit G2; Exhibit H (Rimfrost Presentation: Formulation of Tablets
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`with Omega-3 Phospholipids From Krill); Exhibit I (Rimfrost Flow Chart); Exhibit J (Rimfrost
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`Brochure).
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`1 https://www.youtube.com/watch?list=UU3q_renufwnrU4S64fjHmmQ&v=G22B3px1K2I
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` 2
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` http://www.rimfrostkrill.com/about-krill/what-is-krill/
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`PAGE 8
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`RIMFROST EXHIBIT 1021 page 0008
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 9 of 17 PageID #: 9
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`31. Upon information and belief, after the denatured krill product is produced on-board the
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`Juvel, the denatured krill product is provided to Avoca by Rimfrost USA for processing at its
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`facility in North Carolina. Avoca extracts krill oil from the denatured krill product with the use
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`of ethanol, a well-known polar solvent. Avoca processes the denatured krill product at the
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`direction of and for Rimfrost AS and Rimfrost USA. Upon information and belief, Rimfrost
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`USA, Bioriginal, Costco and others then sell krill oil produced by Avoca in various forms as the
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`Accused Products throughout the United States. See Exhibits F-J; Exhibit K (Rimfrost Website
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`Printouts); Exhibit L (Avoca, Olympic Seafood Form Krill Oil Joint Venture (Oct. 23, 2012));
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`Exhibit M (Bioriginal to Distribute New Rimfrost Krill Collection (Nov. 18, 2012)).
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`32. Upon information and belief, the Accused Products are compositions claimed by the ’905
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`Patent and produced from processes claimed by the ’877 Patent. Defendants’ manufacture, sale,
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`offer for sale or use of the Accused Products in this District directly infringes the claims of the
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`Patents-in-Suit.
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`33. Through their sales, joint ventures, manufacturing and processing operations related to
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`the Accused Products, the Defendants have willfully infringed, literally or through the doctrine
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`of equivalents, and continue to willfully infringe, literally or through the doctrine of equivalents,
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`induce others to infringe, and/or contributorily infringe the Patents-in-Suit.
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`34. The Defendants’ infringement of the Patents-in-Suit has been and is deliberate, has
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`directly caused monetary damage to AKBM, has caused price erosion in the United States krill
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`oil market, and is an egregious and exceptional case of willful infringement.
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`PAGE 9
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`COUNT I
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`INFRINGEMENT OF U.S. PATENT NO. 9,028,877
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`35. AKBM re-alleges and incorporates by reference the allegations contained in paragraphs 1
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`through 34 of this Complaint.
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`36. On May 12, 2015, the USPTO duly and legally issued the ’877 Patent entitled
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`“Bioeffective Krill Oil Compositions.”
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`37. Inge Bruheim, Snorre Tilseth and Daniele Mancinelli are joint and true inventors of the
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`’877 Patent. By operation of law and as a result of written assignment agreements, AKBM
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`obtained the entire right, title, and interest to and in the ’877 Patent.
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`38. Upon information and belief, the Defendants infringe literally or under the doctrine of
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`equivalents, induce others to infringe, and/or contributorily infringe one or more claims of the
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`’877 Patent. Non-limiting examples of such infringement are set forth below.
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`39. Claim 1 of the ‘’877 Patent recites:
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` 1. A method of production of krill oil comprising:
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`a) providing krill;
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`b) treating said krill to denature lipases and phospholipases in said krill to
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`provide a denatured krill product; and
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`c) extracting oil from said denatured krill product with a polar solvent to
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`provide a krill oil with from about 3% to about 10% w/w ether phospholipids;
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`from about 27% to 50% w/w non-ether phospholipids so that the amount of total
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`phospholipids in said krill oil is from about 30% to 60% w/w; and from about
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`20% to 50% w/w triglycerides, wherein said steps a and b are performed on a
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`ship.
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`RIMFROST EXHIBIT 1021 page 0010
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 11 of 17 PageID #: 11
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`40. Upon information and belief, at the direction of Olympic Holding, Rimfrost AS and
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`Emerald Fisheries act in concert to harvest and denature krill on the Juvel krill vessel, and
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`provide the resulting denatured krill product to Avoca through Rimfrost USA. By taking such
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`action, Olympic Holding, Rimfrost AS and Emerald Fisheries practice the limitations of claim 1
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`– “a) providing krill;” “b) treating said krill to denature lipases and phospholipases in said krill to
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`provide a denatured krill product;” and “wherein said steps a and b are performed on a ship.”
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`41. Upon information and belief, at the direction of Olympic Holding, Rimfrost AS provides
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`the denatured krill product made on Emerald Fisheries’ Juvel krill vessel to Rimfrost USA for
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`delivery to Avoca. Upon information and belief, Avoca processes the denatured krill product by
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`extracting krill oil from the denatured krill product with the use of ethanol. By taking such
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`action, Avoca practices the limitation of claim 1 - “c) extracting oil from said denatured krill
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`product with a polar solvent.”
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`42. Upon information and belief, the krill oil produced by Avoca includes the limitation of
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`claim 1 – “a krill oil with about 3% to about 10% w/w ether phospholipids; from about 27% to
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`50% w/w non-ether phospholipids so that the amount of total phospholipids in said krill oil is
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`from about 30% to 60% w/w; and from about 20% to 50% w/w triglycerides.” For example, the
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`KIRKLAND SIGNATURE KRILL OIL contains krill oil comprising from about 3% to 10%
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`w/w ether phospholipids, from about 27% to 50% w/w non-ether phospholipids, from about 30%
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`to 60% w/w total phospholipids and from about 20% to 50% w/w triglycerides.
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`43. Upon information and belief, Rimfrost USA, Bioriginal, Costco and others are offering
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`for sale and selling krill oil, and consumers are using such krill oil, such as the Accused
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`Products, which were produced by Avoca pursuant to the process recited above, throughout the
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`RIMFROST EXHIBIT 1021 page 0011
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 12 of 17 PageID #: 12
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`United States and in this District. The offer for sale, sale and use of such products directly
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`infringes Claim 1 of the ’877 Patent under at least 35 U.S.C. § 271 (g).
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`44. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
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`through their actions set forth above, actively and knowingly induce the direct infringement of
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`Claim 1 of the ’877 Patent in violation of 35 U.S.C. § 271 (b).
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`45. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
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`through their actions set forth above, contributorily infringe claim 1 of the ’877 Patent in
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`violation of 35 U.S.C. § 271 (c).
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`46. Claim 11 of the ’877 Patent recites:
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`11. A method of production of krill oil comprising:
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`a) obtaining a denatured krill product produced by treating freshly
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`harvested krill to denature lipases and phospholipases in said krill; and
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`b) extracting oil from said denatured krill product with a polar solvent to
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`provide a krill oil with from about 3% to about 10% w/w ether phospholipids;
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`from about 27% to 50% w/w non-ether phospholipids so that the amount of total
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`phospholipids in the krill oil is from about 30% to 60% w/w; and from about 20%
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`to 50% w/w triglycerides.
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`47. Upon information and belief, and as described above, Avoca obtains from Rimfrost USA
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`the denatured krill product made by Olympic Holding, Rimfrost AS and Emerald Fisheries. By
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`taking such action, Avoca practices the limitation of claim 11 – “a) obtaining a denatured krill
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`product produced by treating freshly harvested krill to denature lipases and phospholipases in
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`said krill.”
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`48. Upon information and belief, and as described above, Avoca processes the denatured krill
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`product by extracting krill oil from the denatured krill product with the use of ethanol. By taking
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`such action, Avoca practices the limitation of claim 11 - “b) extracting oil from said denatured
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`krill product with a polar solvent.”
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`49. Upon information and belief, and as described above, the KIRKLAND SIGNATURE
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`KRILL OIL product produced by Avoca includes the limitation of claim 1 – “a krill oil with
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`from about 3% to about 10% w/w ether phospholipids; from about 27% to 50% w/w non-ether
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`phospholipids so that the amount of total phospholipids in the krill oil is from about 30% to 60%
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`w/w; and from about 20% to 50% w/w triglycerides.” Avoca thereby directly infringes claim 11
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`of the ‘877 Patent under at least 35 U.S.C. § 271 (a).
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`50. Upon information and belief, Rimfrost USA, Bioriginal, Costco and others are offering
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`for sale and selling krill oil, such as the Accused Products, and consumers are using such krill
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`oil, which was produced by Avoca pursuant to the process recited above, throughout the United
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`States and in this District. The offer for sale, sale and use of such products directly infringes
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`Claim 11 of the ’877 Patent under at least 35 U.S.C. § 271 (g).
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`51. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
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`through their actions set forth above, actively and knowingly induce the direct infringement of
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`Claim 11 of the ’877 Patent in violation of 35 U.S.C. § 271 (b).
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`52. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
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`through their actions set forth above, contributorily infringe claim 11 of the ’877 Patent in
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`violation of 35 U.S.C. § 271 (c).
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`RIMFROST EXHIBIT 1021 page 0013
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 14 of 17 PageID #: 14
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`53. The Defendants’ infringement of the ’877 Patent has caused substantial and irreparable
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`harm to AKBM, and will continue to cause such harm unless and until their infringing activities
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`are enjoined by this Court. AKBM does not have an adequate remedy at law.
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`54. The Defendants’ infringement of the ’877 Patent has directly caused significant monetary
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`damage to AKBM, including price erosion in the United States krill oil market, and is an
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`egregious and exceptional case of willful infringement. AKBM is entitled to recovery of
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`monetary damages for such injuries pursuant to 35 U.S.C. § 284 in an amount to be determined
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`at trial, including an award of treble damages.
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`55. Upon information and belief, the Defendants’ infringement of the ‘877 Patent has been
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`willful and deliberate, making this an exceptional case entitling AKBM to recover additional
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`damages and attorneys’ fees pursuant to 35 U.S.C. § 285.
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`COUNT II
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`INFRINGEMENT OF U.S. PATENT NO. 9,078,905
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`56. AKBM re-alleges and incorporates by reference the allegations contained in paragraphs 1
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`through 55 of this Complaint.
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`57. On July 14, 2015, the USPTO duly and legally issued the ’905 Patent entitled
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`“Bioeffective Krill Oil Compositions.”
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`58. Inge Bruheim, Snorre Tilseth and Daniele Mancinelli are joint and true inventors of the
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`’905 Patent. By operation of law and as a result of written assignment agreements, AKBM
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`obtained the entire right, title, and interest to and in the ’905 Patent.
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`59. Upon information and belief, the Defendants infringe literally or under the doctrine of
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`equivalents, induce others to infringe, and/or contributorily infringe one or more claims of the
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`’905 Patent. Non-limiting examples of such infringement are set forth below.
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`RIMFROST EXHIBIT 1021 page 0014
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 15 of 17 PageID #: 15
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`60. Claim 1 of the ’905 Patent recites:
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` 1. Encapsulated krill oil comprising:
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`a capsule containing an effective amount of krill oil, said krill oil comprising from
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`about 3% to about 15% w/w ether phospholipids.
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`61. Upon information and belief, and as described above, encapsulated krill oil products,
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`such as the Accused Products produced by Avoca, and offered for sale and sold by Rimfrost
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`USA, Bioriginal, Costco and others, throughout the United States and in this District, include
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`“krill oil comprising from about 3% to about 15% w/w ether phospholipids.” For example, the
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`KIRKLAND SIGNATURE KRILL OIL product contains krill oil comprising from about 3% to
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`about 15% w/w ether phospholipids. The manufacture, offer for sale, sale and use of such
`
`products directly infringes Claim 1 of the ’905 Patent under at least 35 U.S.C. § 271 (a).
`
`62. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
`
`through their actions set forth above, actively and knowingly induce the direct infringement of
`
`Claim 1 of the ’905 Patent in violation of 35 U.S.C. § 271 (b).
`
`63. Upon information and belief, Olympic Holding, Rimfrost AS and Emerald Fisheries,
`
`through their actions set forth above, contributorily infringe claim 1 of the ’905 Patent in
`
`violation of 35 U.S.C. § 271 (c).
`
`64. The Defendants’ infringement of the ’905 Patent has caused substantial and irreparable
`
`harm to AKBM, and will continue to cause such harm unless and until their infringing activities
`
`are enjoined by this Court. AKBM does not have an adequate remedy at law.
`
`65. The Defendants’ infringement of the ’905 Patent has directly caused significant monetary
`
`damage to AKBM, including price erosion in the United States krill oil market, and is an
`
`egregious and exceptional case of willful infringement. AKBM is entitled to recovery of
`
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`PAGE 15
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`RIMFROST EXHIBIT 1021 page 0015
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 16 of 17 PageID #: 16
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`monetary damages for such injuries pursuant to 35 U.S.C. § 284 in an amount to be determined
`
`at trial, including an award of treble damages.
`
`66. Upon information and belief, the Defendants’ infringement of the ‘905 Patent has been
`
`willful and deliberate, making this an exceptional case entitling AKBM to recover additional
`
`damages and attorneys’ fees pursuant to 35 U.S.C. § 285.
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`PRAYER FOR RELIEF
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`WHEREFORE, AKBM prays for relief as follows:
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`A.
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`Judgment that the Defendants have infringed, induced others to infringe, and/or
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`contributorily infringed the Patents-in-Suit;
`
`B.
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`An order permanently enjoining the Defendants from further infringing the
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`Patents-in-Suit;
`
`C.
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`D.
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`An award of damages pursuant to 35 U.S.C. § 284;
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`A declaration that the Defendants’ infringement was willful and deliberate, and an
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`increase to the award of damages of three times the amount found or assessed by the Court, in
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`accordance with 35 U.S.C. § 284;
`
`E.
`
`F.
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`An order for an accounting of damages from Defendants’ infringement;
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`A declaration that this case is exceptional pursuant to 35 U.S.C. § 285, and an
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`award of attorneys’ fees and costs; and
`
`G.
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`Any additional award or further relief the Court may deem just and proper.
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`RIMFROST EXHIBIT 1021 page 0016
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`PAGE 16
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`Case 1:16-cv-00035-LPS-CJB Document 1 Filed 01/22/16 Page 17 of 17 PageID #: 17
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`DEMAND FOR JURY TRIAL
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`Pursuant to Federal Rule of Civil Procedure 38(b) and Civil Local Rule 38.1, AKBM
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`hereby demands a trial by jury on all issues so triable.
`
`
`
`VENABLE LLP
`
`
`/s/ Jamie L. Edmonson
`
`Jamie L. Edmonson (No. 4247)
`Daniel A. O’Brien (No. 4897)
`Venable LLP
`1201 North Market Street, Suite 1400
`Wilmington, Delaware 19801
`(302) 298-3535 (Telephone)
`(302) 298-3550 (Facsimile)
`jledmonson@venable.com
`dao’brien@venable.com
`
`Counsel for Aker BioMarine Antarctic AS
`
`
`
`
`Dated: January 22, 2016
`
`
`
`OF COUNSEL:
`
`Adam R. Hess
`Andrew F. Pratt
`VENABLE LLP
`575 Seventh Street, NW
`Washington, DC 20009
`(202) 344-4000
`arhess@venable.com
`afpratt@venable.com
`
`Alper T. Ertas
`VENABLE LLP
`505 Montgomery Street
`Suite 1400
`San Francisco, California 94111
`(415) 653-3750
`atertas@venable.com
`
`
`
`10510339-v2
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`PAGE 17
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`RIMFROST EXHIBIT 1021 page 0017
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`