IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`_________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________________
`
`
`RIMFROST AS
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`Patent Owner.
`
`____________________________
`
`Case IPR-2018-01178
`
`U.S Patent No. 9,375,453
`
`_______________________
`
`Patent Owner’s Response to Petition for Inter Partes Review of
`U.S. Patent No. 9,375,453
`
`
`
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`TABLE OF CONTENTS
`INTRODUCTION ......................................................................................... 4 
`
`SUMMARY OF ARGUMENT ..................................................................... 5 
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`
`
`I. 
`
`II. 
`
`III.  BACKGROUND ............................................................................................ 7 
`A. 
`THE ‘453 PATENT CLAIMS .............................................................. 7 
`B. 
`TECHNOLOGY OVERVIEW ............................................................. 9 
`IV.  LEGAL STANDARDS ................................................................................ 10 
`
`V.  CLAIM CONSTRUCTION ........................................................................ 12 
`
`VI.   LEVEL OF SKILL IN THE ART ............................................................. 16 
`
`VII.  CLAIMS 1 - 32 ARE NOT OBVIOUS OVER THE COMBINED
`REFERENCES ............................................................................................ 17 
`A.  Ground 1: Claims 1-3, 5-10, 12, 14-17, 19-20, 23-26, 28 and
`30-32 are not obvious over the combination of Breivik II (Ex.
`1037), Catchpole (Ex. 1009), Bottino II (Ex. 1038), and
`Sampalis I (Ex. 1012). ......................................................................... 17 
`The combined references do not provide a reasonable
`1. 
`expectation of success of arriving at a method for
`production and encapsulation of the defined krill oil ............... 17 
`The combined references do not teach each element of
`claims 23 to 32. ......................................................................... 23 
`A POSITA would not combine ranges for specific lipid
`components in an extract from references that use
`different extraction techniques .................................................. 24 
`A POSITA would not encapsulate krill oil with the
`claimed ether phospholipid content because krill ether
`phospholipids were known to precursors to compounds
`that trigger inflammation .......................................................... 31 
`
`2. 
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`3. 
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`4. 
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`B.  Ground 2: Claim 4 is not obvious over the combination of
`Breivik II (Ex. 1037), Catchpole (Ex. 1009), Bottino II (Ex.
`1038), Sampalis I (Ex. 1012) and Sampalis II (Ex. 1013). ................. 33 
`C.  Ground 3: Claims 11, 18, 21 and 27 are not obvious over the
`combination of Breivik II (Ex. 1037), Catchpole (Ex. 1009),
`Bottino II (Ex. 1038), Sampalis I (Ex. 1012) and Fricke 1984
`(Ex. 1010). ........................................................................................... 34 
`D.  Ground 4: Claims 13, 22 and 29 are not obvious over the
`combination of Breivik II (Ex. 1037), Catchpole (Ex. 1009),
`Bottino II (Ex. 1038), Sampalis I (Ex. 1012) and Randolf (Ex.
`1011). ................................................................................................... 35 
`VIII.  CERTIFICATE OF COMPLIANCE ........................................................ 35 
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`IX.  CONCLUSION ............................................................................................ 36 
`
`CERTIFICATE OF SERVICE ............................................................................ 37 
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
`
`INTRODUCTION
`Pursuant to 37 C.F.R. § 42.120, Patent Owner Aker BioMarine Antarctic
`
`
`I.
`
`AS (“Patent Owner” or “Aker”) Responds to the Petition for Inter Partes Review
`
`(“Petition”) of U.S. Patent No. 9,375,453 (“the ‘453 Patent”) filed by Rimfrost AS
`
`(“Petitioner” or “Rimfrost”). On January 14, 2019 the Patent Trial and Appeal
`
`Board instituted this Inter Partes review of claims 1 – 32 of the ‘453 Patent based
`
`on Rimfrost’s Petition. In Response, Patent Owner relies on the Declaration of Dr.
`
`Nils Hoem (Ex. 2001) and the additional exhibits in the Exhibit Listing that is filed
`
`concurrently herewith. The following grounds of alleged unpatentability are at
`
`issue:
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`II.
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`SUMMARY OF ARGUMENT
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`Petitioner fails to establish by a preponderance of the evidence that it’s cited
`
`prior art renders any patented claim obvious.
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`First, the combined references do not provide a reasonable expectation of
`
`success for arriving at a method of producing krill oil with the defined
`
`characteristics. Claims 1-32 of the ‘453 patent are directed to methods of
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`producing and formulating krill oils with specific content ranges for multiple
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`components including ether phospholipids, non-ether phospholipids, triglycerides,
`
`and astaxanthin esters. As discussed in detail herein, while Catchpole does
`
`disclose a krill extract containing 4.8% ether phospholipids (Catchpole Extract 2),
`
`a POSITA would understand that Catchpole Extract 2 did not contain neutral lipids
`
`such as triglycerides. A POSITA would further understand that neutral lipids
`
`including triglycerides would need to be added to Catchpole Extract 2 to provide
`
`an oil with the claimed maximum of 60% total phospholipids and the range of
`
`from 20 to 50% triglycerides. This would dilute the ether phospholipids to 2.88%,
`
`which is below the claimed range of greater than about 3% in claims 1 to 13, and
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`well below the greater than about 4% ether phospholipids required in claims 14 to
`
`22 and greater than about 5% ether phospholipids required in claims 23 to 32.
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`Second, the lipids specified in the krill oils extracted and formulated in the
`
`claimed process differ in terms of their polarity and extractability in different
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`solvent systems. The phospholipids are polar lipids and while triglycerides are
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`neutral lipids. A POSITA would not combine ranges for polar lipids obtained from
`
`a reference using an extraction technique that is selective for polar lipids such as
`
`Catchpole with ranges for neutral lipids such as triglycerides from a reference
`
`disclosing a non-selective extraction technique such as Bottino II to provide a
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`method of producing a specifically defined krill oil as claimed. Id.
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`Third, ether phospholipids, especially marine ether phospholipids rich in
`
`long chain polyunsaturated fatty acids such as docosahexaenoic acid (DHA) were
`
`known in the art prior to the priority date of the ‘453 patent to be precursors for
`
`compounds with potent Platelet Activating Factor (PAF) activity. The prior art
`
`expressed real concern that when ingested and adsorbed into the body, these ether
`
`phospholipids and their metabolites would be subject to uncontrolled peroxidation
`
`generating pro-inflammatory PAF-like molecules. Thus, a POSITA would have
`
`been led by the prior art to limit the amount ether phospholipids in krill oil that is
`
`extracted and formulated for oral consumption and intended to treat conditions
`
`associated with inflammation such as is taught in Sampalis I.
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`III. BACKGROUND
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`A.
`
`THE ‘453 PATENT CLAIMS
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`The ‘453 patent has two independent claims, claims 1 and 33, and 61 total
`
`claims. IPR2018-01178 (the instant IPR, hereinafter “ ‘1178 IPR”) is directed to
`
`claims 1-32 and only those claims are addressed in this Response. Co-pending
`
`IPR2018-01179 is directed to claims 33-61 and those claims are addressed in the
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`Response specific to that IPR.
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`
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`Claim 1 of the ‘453 patent is directed to a method of extracting and
`
`formulating a krill oil for oral consumption. The extracted krill oil has specific
`
`defined ranges of lipid components including ether phospholipids, non-ether
`
`phospholipids, total phospholipids, triglycerides and astaxanthin esters. Claim 1
`
`reads as follows:
`
`1. A method of production of polar krill oil from Euphausia
`
`superba comprising:
`
`a) treating the Euphausia superba to denature lipases and
`
`phospholipases to provide a denatured krill product;
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`b) contacting the denatured krill product with a polar solvent to
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`extract a polar krill oil comprising phospholipids, said polar krill oil
`
`comprises greater than about 3% ether phospholipids w/w of said polar krill
`
`oil; from about 27% to 50% non-ether phospholipids w/w of said polar krill
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`IPR2018-01178
`U.S. Patent No. 9,375,453
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`oil so that the amount of total phospholipids is from about 30% to 60% w/w
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`of said polar krill oil; from about 20% to 50% triglycerides w/w of said polar
`
`krill oil, and astaxanthin esters in amount of greater than about 100 mg/kg of
`
`said polar krill oil; and
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`c) formulating said polar krill oil with a carrier for oral consumption.
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`
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`
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`Dependent claim 14 (and the claims dependent thereon) further require that
`
`the ether phospholipid content is greater than about 4%:
`
`
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`14. The method of claim 1, wherein said polar krill oil comprises greater
`
`than about 4% w/w ether phospholipids.
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`
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`Dependent claim 23 (and the claims dependent thereon) further require that
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`the ether phospholipid content is greater than about 5%:
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`
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`23. The method of claim 1, wherein said polar krill oil comprises greater
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`than about 5% w/w ether phospholipids.
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`
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`The patentability of dependent claims 14 and 23 is separately argued below.
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`B.
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`TECHNOLOGY OVERVIEW
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`IPR2018-01178
`U.S. Patent No. 9,375,453
`Patent Owner Response
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`As explained in the ‘453 Patent, while several prior art publications
`
`disclosed the production of krill oil containing phospholipids, there were problems
`
`involved in using Antarctic krill as a source of oil for because of degradation of
`
`lipids contained in the krill during transport and storage after capture in the
`
`Southern Ocean. Hoem Decl. (Ex. 2001), ¶38, citing ‘453 Patent, Ex. 1001, col. 1,
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`30-45. The ‘453 patent discloses that in order to solve the transport and
`
`degradation problem, the freshly caught krill could be denatured at the site of
`
`capture to destroy the activity of problematic enzymes to provide a denatured krill
`
`product and then transported to the site of extraction and/or be stored as needed.
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`Hoem Decl. (Ex. 2001), ¶39, citing ‘453 Patent (Ex. 1001) col. 9, l. 27 - col. 11, l.
`
`2. For example, the ‘453 Patent describes extraction of krill oil from a denatured
`
`krill product, krill meal, made by steam cooking krill followed by drying. Id., Ex.
`
`1001, col 18, l. 10-24 and col. 31, l. 24-41. Krill oil extracted from denatured krill
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`meal that had been stored for 19 months contained virtually no decomposed
`
`phospholipids. Id., Ex. 1001, col. 10. l. 51 – 53, col. 31, l. 29-41.
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`Previous to the ‘453 Patent, publications such as Yamaguchi et al., (1986) J.
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`Agric. Food. Chem., 34(5):904-907 (Ex. 2002) actually taught that supercritical
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`fluid extraction with carbon dioxide should be used to extract neutral krill oil from
`
`krill meal to exclude “phospholipids that interfere with the utilization of krill oils.”
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`Hoem Decl. (Ex. 2001), ¶40. Yamaguchi further reported that extraction from krill
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`meal yielded one-third less neutral krill oil than extraction from freeze-dried krill.
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`Ex. 2002 at p. 453, col. 2. As stated by Yamaguchi: “The lower yields from meal
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`oil are probably attributable to the fact that that the oil of the krill meal was in part
`
`deteriorated by oxidation or polymerization to such an extent that only limited
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`extraction occurred with SC-CO2.” Id. Publications such as Sampalis II (Ex. 1013,
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`cited by Petitioner), then turned to the use of fresh or frozen krill and cold
`
`extraction methods to produce krill oil for encapsulation and human consumption.
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`Hoem Decl. (Ex. 2001), ¶40, citing Ex. 1013, at p. 33-34.
`
`Thus, the ‘453 patent discloses commercially relevant improvements to
`
`previous processes for making krill oil with desired properties. The krill oil
`
`resulting from these processes is characterized and distinguished from prior art
`
`krill oil by the combination or parameters listed in the claims. Krill oil made by
`
`different process would be expected by a POSITA to have different combinations
`
`of properties. Hoem Decl. (Ex. 2001), ¶41.
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`IV. LEGAL STANDARDS
`A patent is invalid as obvious only “if the differences between the claimed
`
`invention and the prior art are such that the claimed invention as a whole would
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`have been obvious before the effective filing date of the claimed invention to a
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`person of ordinary skill in the art to which the claimed invention pertains.” 35
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`U.S.C. § 103(a). To invalidate a claim for obviousness, the prior art must teach or
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`U.S. Patent No. 9,375,453
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`suggest each and every claimed feature. CFMT, Inc. v. YieldUp Int’l Corp., 349
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`F.3d 1333, 1342 (Fed. Cir. 2003). Significantly, “a patent composed of several
`
`elements is not proved obvious merely by demonstrating that each of the elements
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`was, independently, known in the prior art.” KSR Int’l Co. v. Teleflex Inc., 127
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`S.Ct. 1727, 1741 (2007). To prove obviousness based on more than one reference,
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`one must show that (1) a person of ordinary skill in the art would have been
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`motivated to combine the references, and (2) there would have been a reasonable
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`expectation of successfully achieving the claimed invention from such
`
`combination. See Leo Pharma. Prods., Ltd. v. Rea, 726 F.3d 1346, 1355-57 (Fed.
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`Cir. 2013); see also In re Kubin, 561 F.3d 1351, 1359 (Fed. Cir. 2009) (“courts
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`should not succumb to hindsight claims of obviousness”).
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`Moreover, secondary considerations “can be the most probative evidence of
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`nonobviousness” and are useful to “avert the trap of hindsight.’” Leo Pharma., 726
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`F.3d at 1358 (internal citation omitted). These secondary considerations may
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`include commercial success, copying, and prior art that teaches away from the
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`claimed inventions. See, e.g., Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688
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`F.3d 1342, 1370 (Fed. Cir. 2012).
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`V. CLAIM CONSTRUCTION
`The claims at issue should be given their broadest reasonable interpretation
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`IPR2018-01178
`U.S. Patent No. 9,375,453
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`in light of the specification. 37 C.F.R. § 42.100(b); see also In re Translogic Tech.,
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`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007) (under the broadest reasonable
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`construction standard, claims terms are given their ordinary and customary
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`meaning as would be understood by one of ordinary skill at the time of the
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`invention). This standard applies as the filing date of the Petition in this IPR was
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`before the October 11, 2018 rule change. In accordance with these standards,
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`Patent Owner submits that, in relation to this proceeding, the following claim terms
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`should be construed as set forth below.
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` “polar krill oil” Petitioner defines krill oil as “krill oil containing
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`polar lipids.” Petition, p. 18. For the purposes of this proceeding, Patent Owner
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`accepts this definition.
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` “polar solvent” Petitioner defines “polar solvent” as “solvent or a
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`mixture of solvents capable of extracting polar lipids comprising phospholipids.”
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`Petition, p. 21. For the purposes of this proceeding, Patent Owner accepts this
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`definition.
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` “denature lipases and phospholipases” Petitioner defines “denature
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`lipases and phospholipases” as “to alter the conformational structure of lipases and
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`phospholipases to reduce lipid and phospholipid decomposition.” Petition, p. 24.
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`Petitioner proposes a standard definition of denaturation that should be used for the
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`IPR2018-01178
`U.S. Patent No. 9,375,453
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`purposes of the proceeding:
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`
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`Applying Petitioner’s definition of denaturation, to “denature lipases and
`
`phospholipases” is to treat the lipases and phospholipases to rupture hydrogen
`
`bonds thereby changing the molecular structure of the lipases and phospholipases.
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`This definition is consistent with the plain meaning of what it means to denature
`
`proteins such as lipases and phospholipases. The addition of “to reduce lipid and
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`phospholipid decomposition” to the definition is unnecessary. Hoem Decl. (Ex.
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`2001), ¶33.
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` “plant phytonutrient” Petitioner defines “plant phytonutrients” as a
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`“plant-derived compound that has a positive impact on human health or nutrition.”
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`Petition, p. 25. For the purposes of this proceeding, Patent Owner accepts this
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`definition.
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` “astaxanthin esters” Petitioner defines “astaxanthin esters” as “[a]n
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`IPR2018-01178
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`astaxanthin molecule in which one or both of the hydroxyl groups are replaced by
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`a fatty acid tail connected to the astaxanthin molecule through an ester bond.”
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`Petition, p. 27. For the purposes of this proceeding, Patent Owner accepts this
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`definition.
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` “greater than about 5% w/w ether phospholipids” Petitioner
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`defines “greater than about 5% w/w ether phospholipids" as "greater than 4.5%
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`ether phospholipids w/w of said krill oil.” Petition at pp. 27-31. For the following
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`reasons, Patent Owner asserts that the broadest reasonable interpretation of
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`“greater than about 5% w/w ether phospholipids” is “greater than 4.95% ether
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`phospholipids w/w of said krill oil.”
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`Petitioner relies on Dr. Tallon’s finding that “The ‘453 Patent’s claims and
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`specification provide only whole numbers for the limitation on the claimed ranges
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`of the amount of components by weight. Thus, they are accurate only to within the
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`rounding values.” Ex. 1006, Tallon Decl., ¶157. However, Dr. Tallon has ignored
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`the disclosure in the examples where the actual values for total phospholipids and
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`ether phospholipids are provided. Hoem Decl. (Ex. 2001), ¶37. For example, Dr.
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`Tallon acknowledges at ¶75 of his Declaration that the ‘453 patent discloses in
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`Examples 7 and 8 values for total phospholipids and ether phospholipids that are
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`accurate to a tenth of a percent. As recognized by Dr. Tallon: “The krill oil
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`obtained from Example 7 contained 13.0% (AAPC) + 0.9% (LAAPC) + 1.5%
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`(AAPE) = 15.4% ether phospholipids as a percentage by weight of phospholipids.
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`However, phospholipids only constituted 47.9% of the Patent Owner’s Krill oil
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`obtained from Example 7. Thus, ether phospholipids constituted 7.4% by
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`weight of the Patent Owner’s Krill oil obtained from Example 7 (15.4% x .479 =
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`7.38%).” Ex. 1006, Tallon Decl., ¶75 (emphasis added). Thus, applying the
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`rounding rationale proposed by Petitioner, the actual rounding should be from the
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`tenth of a percent. Thus, 4.95% would round up to 5.0% and be included in the
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`term “about 5%”. Likewise, 4.94% would round down to 4.9% and would not be
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`included in the term “about 5%.” For these reasons, a POSITA, upon reading and
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`understanding the entire ‘453 patent specification, would define the term “greater
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`than about 5% w/w ether phospholipids” as “greater than 4.95% ether
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`phospholipids w/w of said krill oil.” See, Hoem Decl. (Ex. 2001), ¶37. For these
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`reasons, a POSITA, upon reading and understanding the entire ‘453 patent
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`specification, would define the term “greater than about 4% w/w ether
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`phospholipids” as “greater than 3.95% ether phospholipids w/w of said krill oil.”
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`See, Hoem Decl. (Ex. 2001), ¶37.
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` “greater than about 40% phosphatidylcholine" Petitioner defines
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`“greater than about 40% phosphatidylcholine" as "greater than 39.5%
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`phosphatidylcholine." ‘1178 Petition, p. 32. Petitioner relies on the testimony of
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`Dr. Tallon at ¶157-158 of his declaration (Ex. 1006). However, for the same
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`reasons as applied to the definition of about greater than 5%, the broadest
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`reasonable interpretation of “greater than about 40% phosphatidylcholine" is
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`"greater than 39.95% phosphatidylcholine.” Hoem Decl. (Ex. 2001), ¶38.
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`VI. LEVEL OF SKILL IN THE ART
`Petitioner has proposed the following definition of a person of ordinary skill
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`in the art (POSITA) at the time of the alleged invention: a POSITA “would have
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`held an advanced degree in marine sciences, biochemistry, organic (especially
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`lipid) chemistry, chemical or process engineering, or associated sciences with
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`complementary understanding, either through education or experience, of organic
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`chemistry and in particular lipid chemistry, chemical or process engineering,
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`marine biology, nutrition, or associated sciences; and knowledge of or experience
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`in the field of extraction. In addition, a POSITA would have had at least five years’
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`applied experience.” Declaration of Dr. Stephen Tallon, Exhibit 1006, hereinafter
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`"Tallon Decl." ¶31). For the purposes of this Proceeding, Patent Owner accepts this
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`definition of a POSITA.
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`IPR2018-01178
`U.S. Patent No. 9,375,453
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`VII. CLAIMS 1 - 32 ARE NOT OBVIOUS OVER THE COMBINED
`REFERENCES
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`A. Ground 1: Claims 1-3, 5-10, 12, 14-17, 19-20, 23-26, 28 and 30-32
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`are not obvious over the combination of Breivik II (Ex. 1037), Catchpole
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`(Ex. 1009), Bottino II (Ex. 1038), and Sampalis I (Ex. 1012).
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`1.
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`The combined references do not provide a reasonable expectation
`of success of arriving at a method for production and
`encapsulation of the defined krill oil
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`Regarding asserted Ground 1, Petitioner alleges that Catchpole discloses
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`krill oil extract having 4.8% ether phospholipids. Petition at 40-41, referring to Ex.
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`1009 at 0024, Table 16, Extract 2. The Board relies on the 4.8% ether phospholipid
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`content of Catchpole Extract 2 in the Institution Decision. Institution Decision at
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`12, 17-18.
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`The combined references do not provide a reasonable expectation of success
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`of arriving at a method of producing and formulating a krill oil with greater than
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`about 3%, 4% or 5% ether phospholipids as required in claims 1, 14 and 23,
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`respectively, and which also contains a maximum of 60% total phospholipids and
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`20% to 50% triglycerides. Ex. 2001 (Hoem Decl.) ¶¶81-84. As demonstrated
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`below, the Catchpole extraction method removed all of the neutral lipids, including
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`IPR2018-01178
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`triglycerides, from the krill starting material in the first step of the extraction, so
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`that Catchpole Extract 2 (resulting from a second extraction step) could not contain
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`neutral lipids such as triglycerides. Ex. 2001 (Hoem Decl.) ¶¶54-59. In order to
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`have the claimed maximum amount of total phospholipids of 60% (or the
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`minimum amount of 20% triglycerides), it would be necessary to dilute Catchpole
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`Extract 2 so that the ether phospholipid content is below the claimed ranges of
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`greater than about 3%, 4% or 5%. Ex. 2001 (Hoem Decl.) ¶82. Furthermore, the
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`ether phospholipid content of Catchpole could not be easily increased for these
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`same reasons. Ex. 2001 (Hoem Decl.) ¶67.
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`Catchpole is the only reference cited by Petitioner that provides an ether
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`phospholipid content for a lipid extract from krill. Specifically, Table 16 of
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`Catchpole indicates that Extract 2 contains 4.8% ether phospholipids. Ex. 1009 at
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`0024. However, Catchpole used a two-step method for producing Extract 2. The
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`first step utilized neat CO2 to remove neutral lipids and the second step used CO2
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`plus ethanol to extract to obtain a fraction comprising phospholipids (i.e., Extract
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`2). Id., see also Ex. 2001 (Hoem Decl.) ¶¶54-55. Catchpole specifically discloses
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`that “the feed material can be processed using pure CO2 before the co-solvent is
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`introduced to remove much or all of neutral lipids.” Ex. 1009 at 0011. When
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`describing the experimental process in detail, Catchpole further provides that “[t]he
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`extraction was optionally carried out using CO2 only until all of the compounds
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`IPR2018-01178
`U.S. Patent No. 9,375,453
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`soluble in CO2 only, such as neutral lipids, were extracted.” Id. at 0013 (emphasis
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`added).”
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`These statements are consistent with the teaching in Example 18 of
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`Catchpole that the krill starting material was extracted with neat CO2 in the first
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`step until “no further extract was obtained” and indicate to a POSITA that the
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`process was intended to remove all neutral lipids (including triglycerides) in the
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`first step. See Ex. 1009 at 0024; Hoem Decl. (Ex. 2001) ¶¶54-55. The fact that all
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`neutral lipids were removed during the first step is further confirmed by data
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`contained in Catchpole Example 18. The lipid percentages observed in Fricke
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`1984 can be used to estimate the neutral lipid (and triglyceride) content of the
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`starting krill feed material used in Example 18 of Catchpole because that material
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`had not been pre-extracted. Hoem Decl. (Ex. 2001) ¶58.1 Catchpole discloses that
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`650 grams of neutral lipids were extracted from the krill starting material in the
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`first step. Ex. 1009 at 0024. If the average neutral lipid content from the Fricke
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`1984 samples (53.8%) is multiplied by the total lipid content of the Catchpole
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`Example 18 starting material (1203 g) then the estimated neutral lipids for the krill
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`1 During cross examination in related IPR2018-00295, Dr. Tallon admitted that the
`triglyceride and neutral lipid amounts provided in Fricke 1984 could also be used
`to estimate the amount of neutral lipids in the krill feed material. Ex. 2022, p. 33, l.
`4 – p. 34. l. 4.
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`starting material is 647 g. Hoem Decl. (Ex. 2001) ¶59. This amount closely
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`corresponds to the reported 650 g neutral lipids that were removed in step 1 and
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`supports the fact that all neutral lipids were removed during step 1 of Example 18.
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`Id.
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`Petitioner alleges that a POSITA would look to references such as Bottino II
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`to determine the triglyceride content of a polar krill oil. Petition at 42-43.
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`However, as just discussed, Catchpole achieved 4.8% ether phospholipids only in
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`an extract from which all neutral lipids had been removed and thus would not
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`contain neutral phospholipid such as triglycerides. Thus, a POSITA would
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`understand that it would be necessary to dilute Catchpole Extract 2 by adding
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`neutral lipids and triglycerides which would then dilute the ether phospholipid
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`content. Hoem Decl. (Ex. 2001) ¶¶82-84, see also ¶67. If the claimed maximum of
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`60% total phospholipids is considered, then the remainder of the krill oil in the
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`claims would be neutral lipids including triglycerides. Id. Addition of 40% neutral
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`lipids/triglycerides would dilute the ether phospholipid content from 4.8% to
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`2.88%. Id. If the claimed minimum total of 20% triglycerides is considered,
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`addition of 20% triglycerides would dilute the ether phospholipid content from
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`4.8% to 3.84%. Id.
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`a. No reasonable expectation of success for claims 1 to 13
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`Claims 1 to 13 require that the the krill oil extracted in the second step of the
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`
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`claims contains greater than about 3% ether phospholipids. Under Patent Owner’s
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`proposed claim construction, greater than about 3% ether phospholipids means
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`greater than 2.95% ether phospholipids. As discussed above, a POSITA would
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`recognize that there is no reasonable expectation of success in arriving at a method
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`of producing (and subsequently formulating) a krill oil with greater than 2.95%
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`ether phospholipids because a POSITA would understand that krill extracts such
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`as Catchpole Extract 2 would need to be diluted in order to meet the total
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`phospholipid and triglyceride ranges. Specifically, Catchpole Extract 2 would
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`need to be diluted by 40%, reducing the ether phospholipid content to 2.88% which
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`is outside of the range of greater than 2.95%. See Hoem Decl. (Ex. 2001) ¶¶82-84.
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`b. No reasonable expectation of success for claims 14 to 22
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`Claims 14 to 22 require that the krill oil extracted in the second step of the
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`claims contains greater than about 4% ether phospholipids. Under Patent Owner’s
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`proposed claim construction, greater than about 4% ether phospholipids means
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`greater than 3.95% ether phospholipids. As discussed above, a POSITA would
`
`recognize that there is no reasonable expectation of success in arriving at a method
`
`of producing (and subsequently formulating) a krill oil with greater than 3.95%
`
`ether phospholipids because a POSITA would understand that krill extracts such
`
`as Catchpole Extract 2 would need to be diluted in order to meet the total
`21
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`phospholipid and triglyceride ranges. Specifically, Catchpole Extract 2 would
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`need to be diluted by 40%, reducing the ether phospholipid content to 2.88% which
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`is outside of the range of greater than 3.95%. Likewise, if the triglyceride range is
`
`used, it would be necessary to add at least 20% triglycerides to Catchpole Extract
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`2, reducing the ether phospholipid content to 3.84% which is also outside the range
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`of greater than 3.95%. See Hoem Decl. (Ex. 2001) ¶¶82-84.
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`Furthermore, under Petitioner’s claim construction, greater than about 4%
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`ether phospholipids means greater than 3.5% ether phospholipids. Dilution of
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`Catchpole Extract 2 by 40% as discussed above would provide an ether
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`phospholipid content of 2.88%, which is outside of the claimed range of greater
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`than 3.5%. Id.
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`c. No reasonable expectation of success for claims 23 to 32
`
`Claims 23 to 32 require that the krill oil extracted in the second step of the
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`claims contains greater than about 5% ether phospholipids. Under Patent Owner’s
`
`proposed claim construction, greater than about 5% ether phospholipids means
`
`greater than 4.95% ether phospholipids. As discussed above, a POSITA would
`
`recognize that there is no reasonable expectation of success in arriving at a method
`
`of producing (and subsequently formulating) a krill oil with greater than 4.95%
`
`ether phospholipids because a POSITA would understand that krill extracts such
`
`as Catchpole Extract 2 would need to be diluted in order to meet the total
`22
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`phospholipid and triglyceride ranges. Specifically, Catchpole Extract 2 would
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`IPR2018-01178
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`need to be diluted by 40%, reducing the ether phospholipid content to 2.88% which
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`is outside of the range of greater than 4.95%. Likewise, if the triglyceride range is
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`used, it would be necessary as 20% triglycerides to Catchpole Extract 2, reducing
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`the ether phospholipid content to 3.84% which is also outside the range of greater
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`than 4.95%. See Hoem Decl. (Ex. 2001) ¶¶82-84.
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`Furthermore, under Petitioner’s claim construction, greater than about 5%
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`ether phospholipids is greater than 4.5% ether phospholipids. Dilution of
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`Catchpole Extract 2 by 40% as discussed above would provide an ether
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`phospholipid content of 2.88%, which is outside of the claimed range of greater
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`than 4.5%. Likewise, if the triglyceride range is used, it would be necessary to add
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`at least 20% triglycerides to Catchpole Extract 2, reducing the ether phospholipid
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`content to 3.84% which is also outside the range of greater than 4.5%. Id.
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`2.
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`The combined references do not teach each element of claims 23
`to 32.
`Claims 23 to 32 require that the krill oil extracted in the second step of the
`
`
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`claims contains greater than about 5% ether phospholipids. Under Patent Owner’s
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`proposed claim construction, greater than about 5% ether phospholipids means
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`greater than 4