The Oslo District Court has ruled in favour of STIM, finding that both patents protecting the SuperSmolt technology are fully valid, and concluding that Biomar should compensate STIM for patent infringement and breaching codes of business conduct.
“We are pleased that the court found in favour of STIM on all the key points of the case. It is a thorough and well worked out decision that explicitly states the innovative value of the original SuperSmolt patent as well as the SuperSmolt FeedOnly patent,” said CEO Jim-Roger Nordly of the patent holder STIM, commenting that Biomar had asked the court to invalidate both patents, but this claim was not supported.
According to the court ruling “there was a clear need for this invention and finding solutions in this area had been a focus for a long time without such solutions being found.”
Following this court ruling, Biomar was found to have infringed patents by copying SuperSmolt FeedOnly and selling its feed under the name Intro Tuning. Damages of NoK 10 million have been awarded to STIM and Biomar is believed to be facing a total bill in excess of NOK 23 million.
Biomar’s course of action was examined during the court’s hearing regarding complaints of infringements on the Norwegian Marketing Act, which included accusations of misleading marketing as well as breaches on the business code of conduct. Oslo District Court found the accusations to be valid and again Biomar must pay NOK 6,5 million in compensation.
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. It has, however, come to light that this sample was analysed 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 appear clearly blameworthy, the court documents state. (Translation by STIM).
According to STIM, an important element in the ruling is the court’s clarification that the use of smoltification feed may also constitute infringement of the original SuperSmolt patent, which is a process 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. In court, STIM argued that the responsibility for such infringements should fall on Biomar through so-called indirect infringement. Biomar would not accept responsibility and the court, expressing some degree of doubt, concluded that the responsibility in such cases lay with the fish farmer and not the feed producer.
The patent process regarding the SuperSmolt technology is not yet completed. The European Patent Organisation (EPO) is currently considering additional applications that will further expand the SuperSmolt FeedOnly patent within the full patent description filed in 2014.
“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. 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,” said Jim-Roger Nordly.
The precursor to SuperSmolt FeedOnly was originally developed as a result of new discoveries relating to so-called Calcium Sensing Receptors in humans. American scientists understood that stimulating the same receptors in fish may lead to smoltification. 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.
The technology has to a large extent solved one of salmon farming’s biggest challenges, namely mortality and poor growth after sea transfer because of sub-optimal smoltification. SuperSmolt FeedOnly allows the fish to smoltify under constant light and without the threat of desmoltification. Its ability to synchronise the smoltification so that every fish has good seawater tolerance at the time of transfer has had a big impact on fish welfare, survival and growth performance.
“SuperSmolt is a true game-changer,” Jim-Roger Nordly said.
“It has undoubtedly been instrumental in significantly reducing mortality post-transfer, and the economic benefits for fish farmers are also significant. They now transfer fish groups that perform from day one at sea and reach slaughter size faster.”
SuperSmolt FeedOnly is currently being used in all major salmon producing countries.
