UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CYANOTECH CORPORATION
`Petitioner
`v.
`THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS
`Patent Owner
`____________
`
`
`Case IPR2013-00401[1]
`
`Patent 5,527,533
`
`
`
`
`Before SCOTT E. KAMHOLZ, SHERIDAN K. SNEDDEN, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`____________
`
`
`REPLY OF PETITIONER
`CYANOTECH CORPORATION
`
`____________
`
`
`Submitted: May 21, 2014
`
`                                                            
`[1] Consolidated with Case IPR2013-00404
` 
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`TABLE OF CONTENTS
`
`
`I. Patent Owner cannot recast the bases of invalidity.
`
`II. The photic and ischemic insults in the ‘533 patent initiate a chain of events
`that, like vitamin A deficiency (“VAD”), vitamin C deficiency, vitamin E
`deficiency, other types of photic insult, and most retinal genetic disorders,
`causes retinal damage, injury, and disease.
`
`
`
`
`2
`
`
`
`
`
`
`
`1
`
`
`III. In administering astaxanthin to retard the progress of xerophthalmia, and in
`larger doses, to cure xerophthalmia, Grangaud necessarily treated the retinal
`damage, injury, and disease that are the sequelae of chronic VAD, as shown
`by Dowling.
`
`
`
`
`
`
`
`
`5
`
`
`IV. The oxidant to antioxidant ratio can be increased either (A) by increasing the
`concentration of reactive oxygen species compared to the concentration of
`antioxidants, or (B) by reducing the concentration of antioxidants compared to
`the concentration of oxidants; either means of increasing the oxidant to
`antioxidant ratio can be an “initiating event” of retinal damage and injury, and
`if the imbalance continues, of retinal disease.
`
`
`
`6
`
`
`V. The appearance of macrophages, as described and shown by Dr. Tso in Ex.
`1062, and microglia in the retina and subretinal space means the innate
`immune system has been triggered to dispose of cellular debris (among other
`functions) through phagocytosis, which always means the appearance of more
`free radicals.
`
`
`
`
`
`
`
`
`8
`
`
`VI. At the time that Grangaud administered astaxanthin, the rats in both test and
`control groups, all of whom had been vitamin A deficient since weaning, were
`suffering from retinal injury and disease and under free radical attack. 10
`
`
`VII. Reading and Hayes disclose that vitamin E deficiency leads to the same
`degenerative sequelae as vitamin A deficiency, vitamin C deficiency, photic
`or ischemic insult, and retinal genetic disorders: retinal damage, triggering of
`the innate immune response in the retina, and phagocytosis of photoreceptors.
`
`
`
`
`
`
`
`
`
`
`
`11
`
`
`IX. George Wald and René Grangaud were correct about the absorption
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
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`Patent No. 5,527,533
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`spectrogram of astaxanthin, and Grangaud was correct that his shrimp oil
`contained high concentrations of astaxanthin.
`
`
`
`13
`
`
`X. Grangaud’s administering a therapeutically effect amount of astaxanthin to
`retard the progress of, and to cure, xerophthalmia anticipates claims 1-15,
`21-22, and 26 of the ‘533 patent.
`
`
`
`
`
`14
`
`
`XI. Use of astaxanthin to treat retinal damage, injury, and disease from oxidative
`stress, including ARMD, was obvious.
`
`
`
`
`15
`
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`Patent Owner cannot recast the bases of invalidity. In its Response
`
`(“Response”), the Patent Owner (“PO”) attempts to recast the bases on which to
`
`determine unpatentability of instituted claims 1–15, 21, 22, and 26 of U.S. Patent
`
`No. 5,527,533 (the ‘533 patent) as whether “…Grangaud [or] Dowling mentions or
`
`suggests that vitamin A deficiency (to which each is directed) is at all related to
`
`free radical damage to a retina or central nervous system, or to any of the disorders
`
`or diseases to which the claims are directed.” Paper 32 at 2:1-4 (emphasis added).
`
`PO’s expert witness similarly argues that invalidation of the instituted claims
`
`requires Petitioner to demonstrate that “vitamin A deficiency and/or xerophthalmia
`
`involve … damage, injury, or disease caused by oxidative attack, free radical
`
`damage, or photic insult” and that Vitamin A “prevent[s] oxidative attack or free
`
`radical damage of the eye”. Ex. 2015 at ¶28 (emphasis added) Only three claims
`
`(8, 13, and 21) out of 18 instituted claims contain the term, “free radical”. Only
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`dependent claim 15 contains the word “photic”, and neither the specification nor
`
`the claims of the ‘533 patent contain the term “oxidative” (other than a bibcite to
`
`Kurashige et al., Ex. 1020).
`
`
`
`Invalidation of the instituted claims requires Petitioner to show that Ex. 1002
`
`(Grangaud, 1951), alone or in combination with Ex. 1026 (Dowling, 1961),
`
`discloses the administration of astaxanthin as “a method of treating” (an element
`
`of every instituted claim in the ‘533 patent) retinal damage, injury, or disease,
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`which “treating” necessarily results from such administration of astaxanthin.
`
`Petitioner has made such a showing. Chronic vitamin A deficiency (“VAD”)
`
`causes retinal damage, injury, or disease, and administration of astaxanthin
`
`necessarily results in treating such retinal damage, injury, or disease. Dorey Decl.
`
`(Ex. 1045) at R¶¶28-32. “R¶” means “Rebuttal paragraph”. Petitioner will
`
`explain (i) that VAD does involve free radical-induced damage of the retina, and
`
`(ii) how astaxanthin (since Grangaud and Tso administered astaxanthin, not
`
`vitamin A) “prevent[s] oxidative attack or free radical damage of the eye”.
`
`
`
`The photic and ischemic insults in the ‘533 patent initiate a chain of
`
`events that, like vitamin A, C, or E deficiency, other types of photic insult, and
`
`most retinal genetic disorders, causes retinal damage, injury, and disease.
`
`The initiating event, be it photic, ischemic (intraocular overpressure is subsumed
`
`within the term “ischemic insult” in the ‘533 patent), vitamin deficiency, or genetic,
`
`is merely the trigger; after the initiating event, retinal damage, injury, and disease
`
`progress over months and even years (e.g., retinitis pigmentosa, age-related
`
`macular degeneration (“ARMD”)). The ‘533 patent is directed to treating retinal
`
`damage, injury, and disease, not to treating the initiating event, and the ‘533 patent
`
`specification and claims are not limited to treating instantaneous damage or injury.
`
`Ex. 1045 at R¶¶28-32, 46-59, 61-66, 68-70,73, 75-102, 112-115. The initiating
`
`event, or trigger, may vary, but the sequellae of the initiating event always include
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`Reply of Petitioner Cyanotech Corporation
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`Patent No. 5,527,533
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`the attraction of microglia and macrophages that (i) release free radicals and other
`
`reactive oxygen species and (ii) initiate pathways in the cell that release many
`
`kinds of free radicals and reactive oxygen species in the cell. Ex. 1045 at
`
`R¶¶28-32, 53. In fact, the ‘533 patent does not show retinal disease or retinal
`
`degeneration, it shows retinal recovery (Ex. 1001, Figs 3-4). Ex. 1045 at R¶59.
`
`The ‘533 patent discloses temporary thinness of the inner retinal thickness (“IRT”)
`
`and outer nuclear layer (“ONL”), and a temporary drop in rhodopsin level, in a rat
`
`model. All experimental measures (IRT, ONL, and rhodopsin level) were
`
`substantially restored to pre-insult levels in both the test group and the control
`
`group within 13 days of insult (Ex. 1001, Figs 3-4). No disease arising from retinal
`
`insult is shown in the ‘533 patent. Ex. 1045 at R¶¶47-49, 59.
`
`
`
`In contrast, Grangaud (Ex. 1002) and Dowling (Ex. 1026) show severe
`
`corneal and retinal damage, injury, and disease in rats without adequate stores of
`
`vitamin A. Grangaud further shows (i) conversion into vitamin A of astaxanthin
`
`administered to rats with chronic VAD, (ii) cure of severe xerophthalmia, and thus,
`
`(iii) adequate retinal and retinol to rescue degenerated photoreceptor cells that had
`
`not been irreversibly marked for apoptosis or other cell death. Ex. 1045 at R¶¶62,
`
`66, 68, 70, 78-80. In other words, Grangaud’s work is far more supportive of Tso’s
`
`claims than Tso’s own specification. As to conversion of astaxanthin into vitamin
`
`A, see Ex. 1045 at R¶¶28, 37, 44, 100; Ex. 1070 at 82-83. See also Ex. 1071 at
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`97:23-98:5 in which Dr. Schweigert clarified that “the cleavage of carotenes”,
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`which PO’s counsel had misread as “carotenoids” and confused the witness, does
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`not refer to astaxanthin.
`
`
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`In eyes, chronic VAD causes nyctalopia, or “night blindness”, then
`
`xerophthalmia, and ultimately, complete blindness.
`
`“For many years, it has been known that severe VAD causes histological
`degeneration in the retina, and it has been suggested that this structural
`damage might be responsible for the long lasting or permanent effects of
`night blindness that persist after the deficiency has been relieved. * * *
`Thus, rats maintained on a vitamin A-free diet, supplemented with vitamin
`A acid grow normally, but gradually become extremely nightblind.”
`(Ex. 1026 at 85:1-5, and 85:14-16)
`Dowling (Ex. 1026) proved that chronic VAD caused retinal damage, injury,
`
`
`
`and disease, as shown histologically, in Figures 2a-2c, 5-9, and 10b of Ex. 1026.
`
`Grangaud’s chronically VAD rats, which were VAD since weaning, could not
`
`have had xerophthalmia without already having retinal degeneration and onset of
`
`a retinal disease, nyctalopia, before onset of a corneal disease, xerophthalmia.
`
`
`
`In administering astaxanthin to retard the progress of xerophthalmia,
`
`and in larger doses, to cure xerophthalmia, Grangaud necessarily treated the
`
`retinal damage, injury, and disease that are the sequelae of chronic VAD, as
`
`shown by Dowling (Ex. 1026). The inherent action of astaxanthin administered to
`
`chronically VAD rats is (1) to act as a strong antioxidant to scavenge free radicals
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`and to quench singlet oxygen (“These data indicate that astaxanthin functions as a
`
`potent antioxidant both in vivo and in vitro.” Ex. 1010, Abstract), (2) to be
`
`converted into retinoic acid, which in a therapeutically effective amount cured
`
`xerophthalmia (as shown in Ex. 1002), and (3) to be converted into retinal and
`
`retinol, which necessarily enabled the rescue of non-apoptotic photoreceptor cells,
`
`and the rebuilding of the ONL and IRT (as shown in Figs 10c, 11, and 12 of Ex.
`
`1026). “The outer segments, on the other hand, lose their normal shape during
`
`[vitamin A] deficiency because of the breakdown of their internal structure. This
`
`internal structure is reformed after giving vitamin A, and the [rod outer] segment
`
`then regains its normal shape and size.” Ex. 1026 at 98:6-9.
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`
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`Vitamin C or E deficiencies, other types of photic insult, and most retinal
`
`genetic disorders cause retinal damage, injury, and disease, and share one or more
`
`sequelae in common with the photic and ischemic insults disclosed in the ‘533
`
`patent. Ex. 1045 at R¶¶28-32, 46-59, 61-66, 68-70,73, 75-102, 112-115.
`
`Photoreceptor cells (“photoreceptors”) in the retina are exquisitely sensitive to the
`
`balance between oxidants and antioxidants, e.g., the balance between (i) singlet
`
`oxygen and superoxide (which are generated constantly within the photoreceptors
`
`as a result of normal daylight and as a result of mitochondrial oxidation) and (ii)
`
`vitamin E, zeaxanthin, and lutein (the latter two are xanthophyll antioxidants (like
`
`astaxanthin) and are preferentially concentrated in the retina). Ex. 1045 at
`
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`Case IPR2013-00401
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`R¶¶28-32, 42, 44, 46, 49, 51, 53-54, 58, 62, 66, 75, 78. As the oxidant to
`
`antioxidant ratio increases, reactive oxygen species (e.g., singlet oxygen and
`
`superoxide) are not quenched or scavenged before they attack the lipid membranes
`
`of the photoreceptors. Attack of the lipid membranes creates lipid peroxyl
`
`radicals (charged fragments of the lipid membrane, initially charged fragments of
`
`the rod outer segment), which increase the oxidant to antioxidant ratio even more,
`
`and the damage caused by the ensuing “chain reaction” of reactive oxygen species
`
`triggers the innate immune response and other pathways of photoreceptor cell
`
`death. Id..
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`
`
`The oxidant to antioxidant ratio can be increased either (A) by
`
`increasing the concentration of reactive oxygen species compared to the
`
`concentration of antioxidants, or (B) by reducing the concentration of
`
`antioxidants compared to the concentration of oxidants; either means of
`
`increasing the oxidant to antioxidant ratio can be an “initiating event” of
`
`retinal damage and injury, and if the imbalance continues, of retinal disease.
`
`Initiating event “A” occurs in sun-gazing and other types of photic insult, and in
`
`ischemic insult: the antioxidant concentration in the retina is overwhelmed by a
`
`surge in reactive oxygen species. Initiating event “B” occurs in vitamin A, C, or E
`
`deficiency: the antioxidant concentration is depleted until the chain reaction of
`
`reactive oxygen species commences. An abnormally high oxidant to antioxidant
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`ratio in the retina is called “oxidative stress”. Ex. 1045 at R¶¶28-32, 49, 51, 56.
`
`
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`Retinal damage, injury, and disease from chronic vitamin C deficiency is
`
`disclosed in Ex. 1062, in which Dr. Tso himself reports “The pathological changes
`
`observed in the retinas of normal and scorbutic monkeys after mild and severe
`
`photic injury could be conveniently described in two phases: (1) an acute injury
`
`and early reparative phase occurring in the first 6 weeks, followed by (2) a chronic
`
`degenerative phase lasting for 7 to 8 months of follow-up.” Ex. 1062 at 509:30-35.
`
`After severe photic injury of scorbutic monkeys, Dr. Tso reported that in the acute
`
`phase, “Many of the photoreceptor elements were necrotic, and macrophages
`
`appeared in the subretinal space as early as 1 week after exposure. … Six weeks
`
`after photic injury, the retinal pigment epithelium had become flat and thin, while a
`
`continuous line of macrophages was observed in the subretinal space throughout
`
`most of the posterior pole.” Ex. 1062 at 519:3-5 and 519:8-11. Figures 11A to 11F
`
`of Ex. 1062 are an excellent series of micrographs of the appearance of
`
`macrophages after photic injury of vitamin C deficient monkeys. See also Ex. 1045
`
`at R¶¶28, 36, 40, 42, 58. For retinal damage, injury, and disease from chronic
`
`vitamin E deficiency, see Ex. 1045 at R¶¶28, 52, 68,75. For retinal damage, injury,
`
`and disease from retinal genetic disorders, see Ex. 1045 at R¶¶28-29, 32. The
`
`sequelae of the various types of initiating events include triggering of the innate
`
`immune response.
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`
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`The appearance of macrophages, as described and shown by Dr. Tso in
`
`Ex. 1062, and microglia in the retina and subretinal space means the innate
`
`immune system has been triggered to dispose of cellular debris (among other
`
`functions) through phagocytosis, which always means the appearance of more
`
`free radicals.
`
`
`
`Macrophages and microglia release free radicals as they engulf and digest
`
`cell fragments resulting from apoptosis; this activity is called “phagocytosis”. Ex.
`
`1045 at R¶¶28-32, 44, 49, 53, 58, 66, 68, 75. The rod inner segment of
`
`photoreceptor cells contains the highest concentration of mitochondria in the body;
`
`mitochondria produce a very high concentration of free radicals during oxidative
`
`phosphorylation. When cells enter apoptosis, one of the first steps is disruption of
`
`mitochondrial membranes, which results in the release of a barrage of free radicals.
`
`Id. Nearby cells are damaged as the free radicals released from the activated
`
`phagocytes as they remove debris from the dying cells. Unless antioxidants are
`
`available to scavenge the free radicals from the macrophages, microglia, and
`
`disrupted mitochondria, the oxidant to antioxidant ratio remains high and more
`
`photoreceptors die until none are left: visual transduction decreases until the
`
`affected eye is blind. Ex. 1045 at R¶¶28-32, 44, 47-49, 53, 58, 66, 68, 75.
`
`
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`PO’s expert is very familiar with oxidative stress and phagocytosis in the
`
`retina. Oxidative stress is the release of reactive oxygen species, including free
`
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`radicals, resulting in an abnormally high ratio of oxidants to antioxidants in a
`
`retinal tissue, as explained above. Phagocytosis is a primary mechanism of the
`
`innate immune response. Ex. 1045 at R¶¶28-32, 50. In one or his many papers on
`
`the subject, Dr. Kaushal wrote,
`
`“The enhanced rate of phagocytosis observed in the current study, resulting
`from the application of HNE-modified (oxidized) ROSs [rod outer
`segments], is similar to that observed in the phagocytosis stimulation
`process during the auto-oxidation and oligomerization of protein S on the
`apoptotic cell surface. … Our observations are consistent with those findings
`and support the role of oxidative stress in stimulating phagocytosis.”
`Ex. 1055 at 111:15-22, rt. col. (endnotes omitted).
`When asked in his deposition, “Can you explain the last sentence, particularly the
`
`phrase ‘support the role of oxidative stress in stimulating phagocytosis’?” (Ex.
`
`1079 at 108:19-21), Dr. Kaushal answered,
`
`“The whole premise of this paper that we published is to demonstrate if you
`oxidize rod outer segments, can that stimulate phagocytosis in an enhanced
`matter in macrophages or microglia? [sic – should be a period] And the data
`in this paper demonstrate that you can.” (Ex. 1079 at 108:25 – 109:4)
`A detailed explanation of the role of macrophages and microglia, and release of
`
`reactive oxygen species, in retinal phagocytosis is provided in Exs. 1049, 1056,
`
`1063, and 1066. Whatever the initiating event of retinal damage or injury, the
`
`result is the same: free radicals from mitochondrial damage increase within the
`
`dying cell, the innate immune system is triggered, macrophages and microglia
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`appear to remove the cellular debris from the damage or injury – and release free
`
`radicals and other factors that can cause damage to nearby cells. Death of cells
`
`other than photoreceptors, such as ganglion cells, follows the same sequence with
`
`involvement of microglia and macrophages. Ex. 1045 at R¶¶28-32, 44, 49, 53, 58,
`
`66, 68, 75. The retinal injury can continue for months, and the retina may never
`
`recover, even if the initiating event stops. Id.
`
`
`
`At the time that Grangaud administered astaxanthin, the rats in both
`
`test and control groups, all of whom had been vitamin A deficient since
`
`weaning, were suffering from retinal injury and disease and under free
`
`radical attack. Dowling shows retinal degeneration is detectable 2 months after a
`
`“vitamin A-free supplemented with vitamin A acid” diet commences (Ex. 1026,
`
`Fig. 2b and caption). The retinal damage and injury, and the free radicals released
`
`by macrophages, microglia, and disrupted mitochondria (in addition to the free
`
`radicals normally generated by photic energy), were present in the rats in Ex. 1002
`
`at the time astaxanthin was administered. Therefore, Grangaud’s rats were
`
`suffering from free radical-induced damage, injury, and disease (the rats that
`
`received too little astaxanthin to cure xerophthalmia were certainly suffering from
`
`nyctalopia). Ex. 1045 at R¶¶28-32, 44, 47-49.
`
`
`
`Administering astaxanthin increases the concentration of antioxidants in the
`
`retina and can restore the normal oxidant to antioxidant ratio, thereby removing
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`Case IPR2013-00401
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`oxidative stress and stopping the chain reaction of free radical creation in the retina.
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`Ex. 1045 at R¶¶ Ex. 1045 at R¶¶28-32, 49, 51, 56. To stop oxidative stress and its
`
`consequences, the oxidant to antioxidant ratio in the retina must be reduced to
`
`normal levels. Administering astaxanthin necessarily results in increasing the
`
`antioxidant concentration in the retina, thereby reducing the oxidant to antioxidant
`
`ratio to normal levels. With reduction of oxidative stress, cellular repair processes
`
`rebuild damaged retinal neurons that have not been marked for apoptosis or other
`
`cell death. Ex. 1045 at R¶¶28-32, 49, 51, 56.
`
`
`
`Reading (Ex. 1029) and Hayes (Ex. 1027) disclose that vitamin E
`
`deficiency leads to the same degenerative sequelae as VAD, vitamin C
`
`deficiency, photic or ischemic insult, and retinal genetic disorders: retinal
`
`damage, triggering of the innate immune response in the retina, phagocytosis
`
`of photoreceptors, and release of free radicals. PO argues (Response at 12,
`
`Section D) that Ex. 1029 “showed that vitamin A does not protect the eye from
`
`oxidative attack.” Reading’s own interpretation is more accurate: that the high
`
`oxidant to antioxidant ratio in chronic vitamin E deficiency and resulting oxidative
`
`stress causes retinal damage and injury, phagocytosis, and the accumulation in the
`
`RPE of cellular debris, namely lipofuscin. Reading states, “The formation of a
`
`yellow autofluorescent pigment termed lipofuscin is correlated with
`
`polyunsaturated fatty acid oxidation and accumulates as the end product of lipid
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`peroxidation.” Ex. 1029 at 386:18-22, rt col. Reading confirms the findings of
`
`Hayes (Ex. 1027). Ex. 1045 at R¶¶52, 54,51, 54, 56. Hayes (Ex. 1027, cited as fn
`
`8 in Ex. 1029) assessed the effects of vitamin E or VAD in monkeys for as long as
`
`2.75 years, and found the effects of vitamin E deficiency included “focal, massive
`
`disruption of photoreceptor cell outer segments attributed to lipid peroxidation of
`
`these lipoprotein structures containing highly unsaturated fatty acids” and also
`
`disclosed the effect of “Vitamin A deficiency was typical of that described by
`
`others, and was accompanied by xerophthalmia, keratomalacia, and clinically
`
`impaired vision.” (Ex. 1027, Abstract). Thus, Reading and Hayes both show that
`
`vitamin E deficiency leads to the same degenerative sequelae as VAD, vitamin C
`
`deficiency, photic or ischemic insult, and retinal genetic disorders: retinal damage,
`
`triggering of the innate immune response in the retina, phagocytosis of
`
`photoreceptors, and release of free radicals. Ex. 1045 at R¶¶52,54,51,54,56.
`
`
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`Carter-Dawson (Ex. 1030) exposed vitamin A deficient rats to a different
`
`type of photic insult, low level cyclic illumination, compared to high level cyclic
`
`illumination that Tso used than in Ex. 1001. Carter-Dawson’s raw data are still
`
`valid, but the sequelae of low level cyclic illumination are now understood (Hao
`
`(2002), Ex. 1046). Low level photic insult during chronic VAD is known as the
`
`“dark signal” pathway and also leads to the same degenerative sequelae as vitamin
`
`E deficiency, vitamin C deficiency, high level photic insult, ischemic insult, and
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`retinal genetic disorders: retinal damage, triggering of the innate immune response
`
`in the retina, phagocytosis of photoreceptors, and release of free radicals. Ex. 1045
`
`at R¶¶53, 55, 64, 81.
`
`
`
`George Wald and René Grangaud were correct about the absorption
`
`spectrogram of astaxanthin, and Grangaud was correct that his shrimp oil
`
`contained high concentrations of astaxanthin. PO and its expert witness assert
`
`that Grangaud may not have administered astaxanthin, without providing any
`
`supporting references. Paper 32 at pp 29-30 and Ex. 2015 at ¶ 83. PO and its expert
`
`are wrong. Grangaud’s single, broad peak, absorption spectrogram of astaxanthin
`
`was like that published earlier by Tischer and confirmed by Nobel Laureate
`
`George Wald (Ex. 1002 at 24:29-31). Grangaud’s single, broad peak, absorption
`
`spectrogram of astaxanthin has been confirmed many times in many labs, in many
`
`different solvents, over the intervening decades. Amarie (Ex. 1047) examined the
`
`absorption spectra of astaxanthin in four different solvents , and each spectrogram
`
`show a single, broad maximum. Ex. 1047, at 10:Fig 1 and Fig. 2 (upper). Ex. 1045
`
`at R¶¶30, 85. Fernandez (Ex. 1054) confirmed the high concentrations of
`
`astaxanthin in Aristæomorpha foliacea, the shrimp used by Grangaud as a source
`
`of astaxanthin. Ex. 1054 at 572:Table 9, 2nd and 3rd columns. Crustacea were
`
`known by1949 to contain high concentrations of astaxanthin. Ex. 1048.
`
`Grangaud’s preparative methods, e.g., column chromatography, solvent
`
` 
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`partitioning, and dye tests, are still used today to purify xanthophylls. There is
`
`absolutely no doubt that Grangaud administered astaxanthin. Ex. 1045 at R¶¶30,
`
`46, 87. PO has also argued (Paper No. 32, at pp. 27-31) that Petitioner’s marketing
`
`materials imply that astaxanthin cannot be reliably identified by absorption
`
`spectroscopy. This point is irrelevant. The marketing materials refer to the
`
`inaccuracy of UV spectroscopy. For identifying astaxanthin purity, UV spectra are
`
`not applicable because astaxanthin absorbs in the visible band. Ex. 1047, at 10:Fig
`
`1 and Fig. 2 (upper).
`
`
`
`Grangaud’s administering a therapeutically effect amount of
`
`astaxanthin to retard the progress of, and to cure, xerophthalmia inherently
`
`anticipates claims 1-15, 21-22, and 26 of the ‘533 patent. Grangaud’s
`
`administering a therapeutically effective amount of astaxanthin to retard the
`
`progress of, and to cure, xerophthalmia necessarily resulted in: (i) treating
`
`individuals suffering from retinal damage or retinal disease (claims 1-12); (ii)
`
`protecting neurons, e.g., photoreceptors, in the retina from free-radical induced
`
`retinal injury (claim 13); (iii) treating individuals suffering from neuronal (e.g.,
`
`photoreceptor) damage to a retina to improve the condition of the retina (claim 14
`
`and dependent claim 15); (iv) treating individuals suffering from a free
`
`radical-induced injury to a central nervous system (“CNS”, the retina is part of the
`
`CNS) to improve the condition of the CNS (claims 21- 22); and (v) treating
`
` 
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`Reply of Petitioner Cyanotech Corporation
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`Case IPR2013-00401
`Patent No. 5,527,533
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`individuals suffering from a degenerative retinal disease to retard the progress of
`
`the disease (claim 26). Ex. 1045 at R¶¶28-32, 36, 42, 44, 46-49, 58-59, 62-65, 70,
`
`76, and 82. Importantly, the retinal damage or injury in the ‘533 patent is not
`
`limited to instantaneous damage or injury.
`
`
`
`Use of astaxanthin to treat retinal damage, injury, and disease from
`
`oxidative stress, including ARMD, was obvious. Without reliance on Exs. 1002
`
`and 1026, references Dr. Tso listed in Ex. 1001 at 5:21-64 (esp. Exs. 1020 and
`
`1077), which were not cited during examination of the ‘533 patent, establish the
`
`use of astaxanthin as a retinal antioxidant, including its use to treat ARMD, as
`
`obvious to one of skill in the art no later than the filing date of the ‘533 patent. As
`
`Dr. Schweigert observed, “Because age-related macular degeneration is an
`
`oxidative -- a process where free radicals and oxidative processes are, essentially,
`
`linked to the degenerative processes in the eye, and, therefore, the application [of
`
`astaxanthin to treat ARMD] would be regarded as reasonable at this time [Tso’s
`
`filing date].” Ex. 1071 at 91:8-13; see also 89:14-91:7 and Ex. 1045 at R¶¶28-32,
`
`35, 37, 40, 42, 44, 46-59, 61-66, 68-70,73, 75-102, 112-115.
`
` 
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`15
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`Reply of Petitioner Cyanotech Corporation
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`
`
`Case IPR2013-00401
`Patent No. 5,527,533
`
`
`
` 
`
`Respectfully submitted,
`
`
`By: /Joseph A. Rhoa/
`Joseph A. Rhoa
`Reg. No. 37,515
`George E. Darby
`Reg. No. 44,053
`Counsel for Petitioner Cyanotech
`Corporation
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`16
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`Reply of Petitioner Cyanotech Corporation
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`
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`
`
`Case IPR2013-00401
`Patent No. 5,527,533
`
`PETITIONER’S EXHIBIT LIST
`“CYAN” = CYANOTECH
`U.S. Pat. 5,527,533 (the “’533 patent”)
`
`Grangaud, René, “Astaxanthin Research, New
`Vitamin A Factor”, 69 pp. (Éditions Desoer,
`Liège, 1951), English translation, with
`Translator’s Certificate.
`
`Grangaud, René, “Recherches sur
`l’Astaxanthine, Nouveau Facteur, Vitaminique
`A”, 69 pp. (Éditions Desoer, Liège, 1951), in
`French.
`
`Massonet, Reneé, “Research into the
`Biochemistry of Astaxanthin”, 146 pp.
`(F.Fontana, Algiers, 1960), English translation,
`with Translator’s Certificate.
`
`Massonet, Reneé, “Recherches sur la
`Biochemie de l’Astaxanthine,”, 146 pp.
`(F.Fontana, Algiers, 1960, in French.
`
`Office Actions and Responses (including
`Declarations) in App. No. 08/330,194
`
`CYAN EXHIBIT 1001
`
`CYAN EXHIBIT 1002
`
`
`CYAN EXHIBIT 1003
`
`
`CYAN EXHIBIT 1004
`
`
`CYAN EXHIBIT 1005
`
`
`CYAN EXHIBIT 1006
`
`
`
` 
`
`

`

`Reply of Petitioner Cyanotech Corporation
`
`CYAN EXHIBIT 1007
`
`Case IPR2013-00401
`
`Patent No. 5,527,533
`
`Bibliographic citations and abstracts of the
`Grangaud and Massonet References, including
`exemplary searches in Chemical Abstracts print
`media (1947 to 1965) and online databases
`(available pre-Critical Date)
`
`
`CYAN EXHIBIT 1008
`
`
`CYAN EXHIBIT 1009
`
`
`CYAN EXHIBIT 1010
`
` 
`
`Massonet, R., Conquy, T., and Grangaud,
`R.R. “The Study of Astaxanthin
`Transformation into Vitamin A in the Albino
`Rat: in vitro Experiments”, Ann. Nutrit.
`Alimentation, Vol. 19 pp. pages C655-C658
`(1965)), English translation, with Translator’s
`Certificate for Exs. 1008, 1010, 1012, 1014,
`1016, and 1018.
`
`Massonet, R., Conquy, T., and Grangaud,
`R.R. “Étude de la transformation de
`l'astaxanthine en vitamine A chez le Rat albinos:
`Expériences ‘in vitro’”, Ann. Nutrit.
`Alimentation, Vol. 19 pp. pages C655-C658
`(1965)), in French.
`
`Grangaud, René; Massonet, Renée; Conquy
`Thérèse; and Ridolfo, Jacqueline,
`“Transformation of Astaxanthin to Vitamin A
`in the Albino Rat: Neoformation in vivo and
`in vitro”, Comptes Rendus Hebdomadaires des
`
`

`

`Reply of Petitioner Cyanotech Corporation
`
`
`Case IPR2013-00401
`
`Patent No. 5,527,533
`
`Seances de l'Academie des Sciences, Vol. 252,
`pp. 1854-1856 (1961b), English translation.
`
`
`CYAN EXHIBIT 1011
`
`
`CYAN EXHIBIT 1012
`
`
`CYAN EXHIBIT 1013
`
`
`CYAN EXHIBIT 1014
`
` 
`
`Grangaud, René; Massonet, Renée; Conquy
`Thérèse; and Ridolfo, Jacqueline,
`“Transformation de l'astaxanthine en vitamine
`A chez le Rat albinos: néoformation in vivo et
`in vitro”, Comptes Rendus Hebdomadaires des
`Seances de l'Academie des Sciences, Vol. 252,
`pp. 1854-1856 (1961b), in French.
`
`Massonet, R., Conquy, T., and Grangaud, R.,
`“Transformation of astaxanthin to vitamin A by
`ocular tissue of the rat in vitro”, Comptes
`Rendus Hebdomadaires des seances de la
`Societe de biologie et de ses filiales, Vol. 155,
`pp. 747-750 (1961a), English translation.
`
`Massonet, R., Conquy, T., and Grangaud, R.,
`“Transformation in vitro de l'astaxanthine en
`vitamine A par le tissu oculaire du Rat”,
`Comptes Rendus Hebdomadaires des seances
`de la Societe de biologie et de ses filiales, Vol.
`155, pp. 747-750 (1961a) , in French.
`
`Grangaud, R., and Massonet, R.,
`“Antixerophthalmic effect of the esters of
`
`

`

`Reply of Petitioner Cyanotech Corporation
`
`
`Case IPR2013-00401
`
`Patent No. 5,527,533
`
`astaxanthin”, Comptes Rendus Hebdomadaires
`des seances de la Societe de biologie et de ses
`filiales, Vol. 148, pp. 1392-1394 (1954),
`English translation.
`
`
`CYAN EXHIBIT 1015
`
`
`CYAN EXHIBIT 1016
`
`
`CYAN EXHIBIT 1017
`
`
`
` 
`
`Grangaud, R., and Massonet, R., “Activité
`antixéropht