The US company said yesterday that its European patent on DHA oil has been upheld by the European Patent Office after a challenge by Aventis and Japanese firm Nagase & Co.
The two opposing parties can however appeal the decision in the two months following a written opinion. An appeal process would then add up to two years of further uncertainty over patent rights to the product.
The patent in question, covering microbial oils rich in DHA or docosahexaenoic acid and methods for their production, is also under threat from German rival Nutrinova, which makes a similar product derived from microalgae.
Martek, which sued the firm and its parent company Celanese for infringement of the patent early last year, said that yesterday's decision by the European patent office's opposition division was an important advance in this case too.
"Today's favourable ruling confirms Martek's strong intellectual property position in Europe for DHA oil and the production of DHA oil and further strengthens our extensive patent portfolio for Martek's DHA and ARA oils that provides us with critical competitive advantages," said Henry Linsert, Martek's chairman and CEO.
Martek sells its DHA oil for supplements in the US under the Neuromins DHA name and in Europe as DHA Gold but its chief revenue source comes from sales to infant formula makers. It holds a 75 per cent share of the DHA and ARA infant formula market in the United States and aims to be in the upper-90s by the end of 2005.
Martek has also brought an action against Nutrinova in the US for infringement of several of its DHA oil patents in that market.
However in an interview with NutraIngredients-USA.com earlier this year, Kevin Connelley, Martek finance director, noted: "European patents are easier to obtain and easier to challenge than US patents. In the US, challenges must go through the court system."
Martek is also looking to confirm the patent rights on another, less important, product, arachidonic acid. Only sold in infant formula, it too has been subject to challenges in recent months.
In April, the opposition division of the European Patent Office upheld the European ARA oil patent but in a form that resulted in narrower claims than those originally granted. Martek said it would appeal the decision.
"We expect it to end up closer in scope to the original," Connelley said at the time.