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`Inter Partes Review of US 9,320,765
`Patent Owner Response
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RIMFROST AS
`Petitioner
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`v.
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`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
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`
`CASE No.: IPR2018-00295
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`U.S. Patent No. 9,320,765
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`Patent Owner’s Response to Petition for Inter Partes Review of
`U.S. Patent No. 9,320,765
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`RIMFROST EXHIBIT 1130 Page 0001
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`Inter Partes Review of US 9,320,765
`Patent Owner Response
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`TABLE OF CONTENTS
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`INTRODUCTION..............................................................................................................3 
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`SUMMARY OF ARGUMENT .........................................................................................4 
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`I. 
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`II. 
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`III. 
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`BACKGROUND ................................................................................................................6 
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`A. 
`B. 
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`THE ‘765 PATENT CLAIMS .................................................................................6 
`TECHNOLOGY OVERVIEW ................................................................................6 
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`LEGAL STANDARDS ......................................................................................................8 
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`CLAIM CONSTRUCTION ..............................................................................................9 
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`IV. 
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`V. 
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`VII.  CLAIMS 1 - 48 ARE NOT OBVIOUS OVER THE COMBINED
`REFERENCES .................................................................................................................14 
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`A. 
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`B. 
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`C. 
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`Ground 1: Claims 1-4, 7, 9-11, 14, 18-20, 24-28, 31, 33-35, 38, 42-44 and
`47 are not obvious over the combination of Sampalis I (Ex. 1012),
`Catchpole (Ex. 1009), Fricke (Ex. 1010), and Breivik II (Ex. 1037). ...................14 
`Ground 2: Claims 5-6, 12-13, 15-16, 21-23, 29-30, 36-37, 39-40 and 45-
`46 are not obvious over the combination of Sampalis I (Ex. 1012),
`Catchpole (Ex. 1009), Fricke (Ex. 1010), Breivik II (Ex. 1037), and
`Bottino I (Ex. 1007). ..............................................................................................29 
`Ground 3: Claims 8, 17, 24, 32, 41 and 48 are not obvious over the
`combination of Sampalis I (Ex. 1012), Catchpole (Ex. 1009), Fricke (Ex.
`1010), Breivik II (Ex. 1037), Bottino I (Ex. 1007) and Randolf (Ex. 1011). ........30 
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`VIII. CERTIFICATE OF COMPLIANCE ...............................................................................30 
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`IX.  CONCLUSION ................................................................................................................31 
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`CERTIFICATE OF SERVICE ..................................................................................................32 
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`I.
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`Inter Partes Review of US 9,320,765
`Patent Owner Response
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`INTRODUCTION
`Pursuant to 37 C.F.R. § 42.120, Patent Owner Aker BioMarine Antarctic
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`AS (“Patent Owner” or “Aker”) Responds to the Petition for Inter Partes Review
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`(“Petition”) of U.S. Patent No. 9,320,765 (“the ‘765 Patent”) filed by Rimfrost AS
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`(“Petitioner” or “Rimfrost”). On June 14, 2018 the Patent Trial and Appeal Board
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`instituted this Inter Partes review of claims 1 – 48 of the ‘765 Patent based on
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`Rimfrost’s Petition. In Response, Patent Owner relies on the Declaration of Dr.
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`Nils Hoem (Ex. 2001) and the additional exhibits in the Exhibit Listing that is filed
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`concurrently herewith. The following grounds of alleged unpatentability are at
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`issue:
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` Ground 1: Claims 1-4, 7, 9-11, 14, 18-20, 24-28, 31, 33-35, 38, 42-44 and
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`47 are obvious over the combination of Sampalis I (Ex. 1012), Catchpole
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`(Ex. 1009), Fricke (Ex. 1010), and Breivik II (Ex. 1037).
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`Ground 2: Claims 5-6, 12-13, 15-16, 21-23, 29-30, 36-37, 39-40 and 45-46
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`are obvious over the combination of Sampalis I (Ex. 1012), Catchpole (Ex.
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`1009), Fricke (Ex. 1010), Breivik II (Ex. 1037), and Bottino I (Ex. 1007).
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`Inter Partes Review of US 9,320,765
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`Ground 3: Claims 8, 17, 24, 32, 41 and 48 are obvious over the combination
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`of Sampalis I (Ex. 1012), Catchpole (Ex. 1009), Fricke (Ex. 1010), Breivik
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`II (Ex. 1037), Bottino I (Ex. 1007) and Randolf (Ex. 1011).
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`II.
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`SUMMARY OF ARGUMENT
`Petitioner fails to establish by a preponderance of the evidence that it’s cited
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`prior art renders any patented claim obvious.
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`First, there is no motivation to combine the references to arrive at the
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`claimed krill oil compositions. Hoem Decl. (Ex. 2001), ¶¶32, 48-54. The claims of
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`the ‘765 patent are directed to krill oils with specific content ranges for multiple
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`components including ether phospholipids, non-ether phospholipids, triglycerides,
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`and astaxanthin esters. These lipids differ in terms of their polarity and
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`extractability in different solvent systems. The phospholipids are polar lipids and
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`while triglycerides are neutral lipids. A POSITA would not combine ranges for
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`polar lipids obtained from a reference using an extraction technique that is
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`selective for polar lipids such as Catchpole with ranges for neutral lipids such as
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`triglycerides from a reference disclosing a non-selective extraction technique such
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`as Fricke 1984 to provide a specifically defined krill oil as claimed. Id.
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`Second, Claim 25 and the claims dependent thereon specify that the ether
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`phospholipid content be greater than about 3%, claim 33 and the claims dependent
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`thereon specify that the ether phospholipid content be greater than about 4%, and
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`Inter Partes Review of US 9,320,765
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`claim 42 and the claims dependent thereon specify that the ether phospholipid
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`content be greater than about 5%. Ether phospholipids, especially marine ether
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`phospholipids rich in long chain polyunsaturated fatty acids such as
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`docosahexaenoic acid (DHA) were known in the art prior to the priority date of the
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`‘765 patent to be precursors for compounds with potent Platelet Activating Factor
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`(PAF) activity. Hoem Decl. (Ex. 2001), ¶¶33, 55-59. The prior art expressed real
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`concern that when ingested and adsorbed into the body, these ether phospholipids
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`and their metabolites would be subject to uncontrolled peroxidation generating
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`pro-inflammatory PAF-like molecules. Id. Thus, a POSITA would have been led
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`by the prior art to limit the amount ether phospholipids in krill oil that is
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`encapsulated for oral consumption and intended to treat conditions associated with
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`inflammation such as is taught in Sampalis I.
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`Third, claims 18 to 24 and claims 42 to 48 all require that the krill oil
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`contain “greater than about 5% w/w ether phospholipids.” The broadest
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`reasonable interpretation for this claim term is “greater than 4.95% ether
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`phospholipids.” Hoem Decl. (Ex. 2001), ¶¶33, 60-63. Applying this definition,
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`the combined references do not teach each element of the claims as Catchpole (Ex.
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`1009), which is relied on by Petitioner for the ether phospholipid limitation,
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`teaches at most 4.8% ether phospholipids which is outside of the claimed range.
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`Inter Partes Review of US 9,320,765
`Patent Owner Response
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`III. BACKGROUND
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`A.
`THE ‘765 PATENT CLAIMS
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`The ‘765 patent has two independent claims, claims 1 and 25, and 48 total
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`claims. The claimed are directed to krill oil compositions (claims 1-24) and
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`encapsulated krill oil compositions (claims 25-48) defined by their content of
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`specific lipid classes:
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` about 3% (or 4% or 5%) ether phospholipids w/w of said krill oil;
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` from about 27% to 50% non-ether phospholipids w/w of said krill oil
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`so that the amount of total phospholipids in the composition is from
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`about 30% to 60% w/w of said krill oil;
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` from about 20% to 50% triglycerides w/w of said krill oil;
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` astaxanthin esters in amount of greater than about 100 mg/kg of said
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`krill oil.
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`TECHNOLOGY OVERVIEW
`B.
`As explained in the ‘765 Patent, while several prior art publications
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`disclosed the production of krill oil containing phospholipids, there were problems
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`involved in using Antarctic krill as a source of oil for because of degradation of
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`lipids contained in the krill during transport and storage after capture in the
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`Southern Ocean. Hoem Decl. (Ex. 2001), ¶27, citing ‘765 Patent, Ex. 1001, col. 1,
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`30-45. The ‘765 patent discloses that in order to solve the transport and
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`degradation problem, the freshly caught krill could be denatured at the site of
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`capture to destroy the activity of problematic enzymes to provide a denatured krill
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`product and then transported to the site of extraction and/or be stored as needed.
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`Hoem Decl. (Ex. 2001), ¶28, citing ‘765 Patent, Ex. 1001, col. 9, l. 27 - col. 11, l.
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`2. For example, the ‘765 Patent describes extraction of krill oil from a denatured
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`krill product, krill meal, made by steam cooking krill followed by drying. Id., Ex.
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`1001, col. 18, l. 9-21 and col. 31, l. 61 – col. 32., l. 11. Krill oil extracted from
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`denatured krill meal that had been stored for 19 months contained virtually no
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`decomposed phospholipids. Id., Ex. 1001, col. 10. l. 51 – 53, col. 32, l. 3-11.
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`Previous to the ‘765 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
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`krill meal to exclude “phospholipids that interfere with the utilization of krill oils.”
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`Hoem Decl. (Ex. 2001), ¶29. 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. 765, 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
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`deteriorated by oxidation or polymerization to such an extent that only limited
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`extraction occurred with SC-CO2.” 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
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`Inter Partes Review of US 9,320,765
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`extraction methods to produce krill oil for encapsulation and human consumption.
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`Hoem Decl. (Ex. 2001), ¶29, citing Ex. 1013, at p. 33-34.
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`Thus, the ‘765 patent discloses commercially relevant improvements to
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`previous processes for making krill oil with desired properties. The krill oil
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`resulting from these processes is characterized and distinguished from prior art
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`krill oil by the combination or parameters listed in the claims. Krill oil made by
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`different process would be expected by a POSITA to have different combinations
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`of properties. Hoem Decl. (Ex. 2001), ¶30.
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`IV. LEGAL STANDARDS
`A patent is invalid as obvious only “if the differences between the claimed
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`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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`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
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`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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`Inter Partes Review of US 9,320,765
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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
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`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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`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). In accordance with these standards, Patent Owner submits that, in
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`relation to this proceeding, the following claim terms should be construed as set
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`Inter Partes Review of US 9,320,765
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`forth below.
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` “krill oil” The Petitioner defines krill oil as “lipids extracted from
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`krill.” Petition, p. 19. However, in his analysis, Dr. Tallon states the following: “In
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`the context of the ‘765 Patent and prior art, as discussed below, “krill oil” is a
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`lipid-rich extract of krill that comprises phospholipids, as well as a lipid-rich
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`extract of krill that comprises a blend of polar lipids (phospholipids) and neutral
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`lipids in different proportions. The ‘765 Patent repeatedly refers to the krill oil
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`composition as comprising a blend of lipid fractions.” Ex. 1006, Tallon Decl., ¶61.
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`Patent Owner agrees that that krill oil as generally understood in the art and in
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`view of the ‘765 specification is a mixture of lipids extracted from krill. As
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`disclosed in the ‘765 specification and as acknowledged by Dr. Tallon, krill oil
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`would contains phospholipids and triglycerides in varying portions. The
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`phospholipid fraction in krill oil would likewise contain different species of
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`phospholipids including both ether and non-ether phospholipids including
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`phosphatidylcholine, phosphatidylethanolamine, etc. Thus, in view of the state of
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`the art and the specification of the ‘765 patent, the broadest reasonable
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`interpretation of “krill oil” is a “mixture of lipids extracted from krill.” Hoem Decl.
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`(Ex. 2001), ¶21.
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` “safe and effective amount of krill oil” The Petitioner defines “safe
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`and effective amount of krill oil” as meaning “at least the range of between 0.2
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`grams to 10 grams of krill oil.” Petition, p. 20. As stated by Petitioner, the ‘765
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`patent states that “the effective amount of a krill oil composition is from 0.2 grams
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`to 10 grams of said krill oil composition.” Id. For the purposes of this proceeding
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`only, Patent Owner notes that this description does not include the term “at least”
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`and thus the better definition of an effective amount of krill oil for this proceeding
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`is “from 0.2 to 10 grams of krill oil.” Hoem Decl. (Ex. 2001), ¶22.
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` “plant phytonutrient” The Petitioner defines “plant phytonutrients”
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`as a “plant-derived compound that has a positive impact on human health or
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`nutrition.” Petition, p. 21. For the purposes of this proceeding, Patent Owner
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`accepts this definition. Hoem Decl. (Ex. 2001), ¶23.
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` “astaxanthin esters” The Petitioner defines “astaxanthin esters” as
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`“[a]n astaxanthin molecule in which one or both of the hydroxyl groups are
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`replaced by a fatty acid tail connected to the astaxanthin molecule through an ester
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`bond.” Petition, p. 23-24. For the purposes of this proceeding, Patent Owner
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`accepts this definition. Hoem Decl. (Ex. 2001), ¶24.
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` “greater than about 5% w/w ether phospholipids” The 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. 24-27. 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 ‘765 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., ¶92. 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), ¶26. For example, Dr.
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`Tallon acknowledges at ¶47 of his Declaration that the ‘765 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., ¶47. Thus, applying the rounding rationale
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`proposed by Petitioner, the actual rounding should be from the tenth of a percent.
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`Thus, 4.95% would round up to 5.0% and be included in the term “about 5%”.
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`Likewise, 4.94% would round down to 4.9% and would not be included in the term
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`“about 5%.” For these reasons, a POSITA, upon reading and understanding the
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`entire ‘765 patent specification, would define the term “greater than about 5% w/w
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`ether phospholipids” as “greater than 4.95% ether phospholipids w/w of said krill
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`oil.” See, Hoem Decl. (Ex. 2001), ¶26.
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`VI. Level of Skill in the Art
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`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." ¶ 29). For the purposes of this Proceeding, Patent Owner accepts
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`this definition of a POSITA.
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`VII. CLAIMS 1 - 48 ARE NOT OBVIOUS OVER THE COMBINED
`REFERENCES
`A. Ground 1: Claims 1-4, 7, 9-11, 14, 18-20, 24-28, 31, 33-35, 38, 42-
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`44 and 47 are not obvious over the combination of Sampalis I (Ex.
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`1012), Catchpole (Ex. 1009), Fricke (Ex. 1010), and Breivik II (Ex.
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`1037).
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`1.
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`A POSITA would not combine ranges for specific lipid
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`components in an extract from references that use different
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`extraction techniques
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`Independent claims 1 and 25 are directed to specific krill oil compositions
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`defined by ranges of different lipid classes:
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` 3% ether phospholipids w/w of said krill oil;
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` from about 27% to 50% non-ether phospholipids w/w of said krill oil
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`so that the amount of total phospholipids in the composition is from
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`about 30% to 60% w/w of said krill oil;
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` from about 20% to 50% triglycerides w/w of said krill oil,
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` and astaxanthin esters in amount of greater than about 100 mg/kg of
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`said krill oil.
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`In order to arrive at the krill oil composition specified in claims 1 and 25,
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`Petitioner relies on three references. Petitioner asserts that Catchpole (Ex. 1009)
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`provides the ether phospholipid, non-ether phospholipid and total phospholipid
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`ranges, that Fricke 1984 (Ex. 1010) provides the triglyceride range, and that
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`Breivik II (Ex. 1037) provides the astaxanthin range. The fourth reference in the
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`combination, Sampalis I, is cited by Petitioner for the “safe and effective amount”
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`and soft gel capsule limitations.
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`As indicated in the Institution Decision at pp. 13-14, Petitioner’s expert Dr.
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`Tallon “testifies that the lipid components described in the claims of the ’765
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`patent ‘are the natural lipid components in the Euphausia superba krill oil that can
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`be extracted using any of a number of suitable solvents’ (Ex. 1006 ¶ 286), and that
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`the relative proportions of those lipid components ‘can also be varied in a
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`predictable way by applying a combination of solvents with different polarity to
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`selectively concentrate and blend groups of compounds based on their different
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`solubility’ using methods and solvents that would have been well known by a
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`relevant skilled artisan (Id.), indicating that an ordinarily skilled artisan would have
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`had a reasonable expectation of success in making the proposed combination.”
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`Patent owner respectfully disagrees with this analysis. First, as of the
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`priority date of the ‘765 Patent claims, it was far from predictable or easy to extract
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`complex lipids, including phospholipids, from a source material. In contrast to the
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`statements made in his Declaration, Dr. Tallon admitted when deposed that
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`identifying solvents to extract complex lipids, which specifically include different
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`subclasses of phospholipids, was difficult in 2007:
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`Q So is it true that as of the international filing date of May 24, 2007
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`that it was difficult to find a solvent or solvent mixture in which the majority
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`of phospholipids present in a plant or animal tissue can be extracted?
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`A I'm happy to stand by that comment. I can explain it a little bit, if
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`you want me to.
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` It's talking about complex lipids in general, and as we've seen, there's
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`a fairly broad range of them. And within the context of complex lipids, they
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`do cover a range of polarity. And, well, large part of what we found with this
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`particular dimethyl ether extraction patent is that dimethyl ether is quite
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`effective, particularly for the much more polar or right at the polar end of the
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`complex lipids then, for example, a CO2 ethanol system. And I could
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`highlight, perhaps, glycated phospholipids in particular have lower solubility
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`in a number of other solvent systems.
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`Tallon Depo. (Ex. 2019), p. 86, l. 2-24; See Ex. 2019 at 84, l. 3-14, where complex
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`lipids are acknowledged to include phospholipids.
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`When considered as a whole as required by 35 U.S.C. §103, the invention
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`(and claims) at issue are directed to krill oil (and encapsulated krill oil) wherein the
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`krill oil is defined by ranges of specific lipid components. In making the proposed
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`combination of references, Petitioner has failed to account for the fact that it is
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`combining ranges for specific lipid components with different chemical properties
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`such as polarity that were obtained by extraction with different solvent systems.
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`Specifically, there is no explanation provided of why a POSITA would conclude
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`that the triglyceride range obtained by a non-selective Folch extraction of krill as
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`described in Fricke 1984 could be substituted or combined with an ether
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`phospholipid or non-ether phospholipid range obtained by the selective extraction
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`of phospholipids by Supercritical Fluid Extraction (SFE) plus ethanol as described
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`by Catchpole. Hoem Decl. (Ex. 2001), ¶48. Ranges obtained from these different
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`methods are not interchangeable. The POSITA would understand that the polar
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`extraction method used in Catchpole will selectively extract components that are
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`different than the combination of polar and non-polar solvents used in Fricke is
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`intended for non-selective extraction of all classes of lipids.
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`The following Table provides a summary of the extractions in Catchpole,
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`Fricke and Breivik:
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`Reference
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`Extraction technique
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`Catchpole
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`Selective - Two-step process - Ex. 1009 at 0024.
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`(Ex. 1009)
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`Step 1 – extraction of neutral lipids from freeze
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`dried krill powder by SFE with neat CO2 to provide
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`a residual powder.
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`Step 2 - Extraction of residual powder by SFE with
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`CO2 plus 11% ethanol to yield Extract 2 (krill
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`phospholipid extract)
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`Fricke 1984
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`Non-selective - Extraction of total lipids in a single
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`(Ex. 1010)
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`step process by the method of Folch et al.
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`Lipids were extracted by homogenizing tissue with
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`2:1 chloroform-methanol (v/v) and filtering the
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`homogenate. See Tallon Decl. (Ex. 1006) at ¶165.
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`Breivik II
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`Selective - Two-step process described in examples
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`(Ex. 1037)
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`6, 7 and 8 – Ex. 1037 at 0009.
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`Step 1 – Ethanol wash of whole krill (heated or
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`unheated) with ethanol.
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`Step 2 – SFE with CO2 plus ethanol on ethanol
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`washed whole krill.
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`Hoem Decl. (Ex. 2001), ¶49. Different solvents and different extraction schemes
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`applied to krill will produce krill lipid extracts with different lipid profiles.
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`Extraction with neutral solvents will preferentially extract neutral lipids such as
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`triglycerides, diglycerides and free fatty acids, while extraction with polar solvents
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`will preferentially extract polar lipids such as phospholipids. Hoem Decl. (Ex.
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`2001), ¶50. Likewise, a non-selective extraction such as a Folch extraction which
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`uses chloroform and methanol together will produce an extract with different
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`properties than extracts prepared with only neutral or polar solvents. As stated by
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`Dr. Tallon in his Declaration:
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`142. The invention of Catchpole is the description of means for fractionating
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`a mixture of phospholipids, based on their differential solubility in
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`supercritical CO2 + polar co-solvent. The most soluble phospholipids are
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`extracted into the mixed solvent, whilst the least soluble phospholipids are
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`concentrated in the residue. Dried krill powder in “Example 18:
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`Fractionation of Krill Lipids” of Catchpole (p. 24, Exhibit 1009, p. 0024)
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`was extracted with supercritical CO2 to firstly extract neutral lipids (mainly
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`triglycerides) and then with a CO2 + ethanol mixture, ‘the residual powder
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`was then extracted with CO2 and absolute ethanol, using a mass ratio of
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`ethanol to CO2 of 11 %, to produce a second extract labelled ‘Extract 2’,
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`and a residual un-extracted fraction labelled ‘Residue’. Catchpole, p. 24,
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`lines 3- 19, Exhibit 1009, p. 0024.
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`Tallon Decl. (Ex. 1006) at ¶142. Thus, the extraction technique described in
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`Tallon results in selective extraction of phospholipids after first removing neutral
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`lipids (which include triglycerides) in a first extraction step. Hoem Decl. (Ex.
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`2001), ¶50. There is no disclosure in the Catchpole of the composition of the
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`“other compounds” in extract 2 of Catchpole and certainly no disclosure of the
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`triglyceride content of that Extract 2. Dr. Tallon testifies that the “other
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`compounds” could include triglycerides, but that is speculative as there could be
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`considerable amounts of free fatty acids, monoglycerides, diglycerides and other
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`unaccounted for lipids. Hoem Decl. (Ex. 2001), ¶50.
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`Breivik II teaches a different two-step extraction method. Breivik II’s
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`methods employ both ethanol washes of whole krill and extraction of the washed
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`whole krill by SFE with CO2 and ethanol. Breivik provides very little data on the
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`compositions actually obtained from these extractions. However, these extractions
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`procedures are also selective in that polar solvents or entrainers are utilized. Hoem
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`Decl. (Ex. 2001), ¶51.
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`In contrast to Catchpole and Breivik II, Fricke 1984 (Ex. 1010) uses the
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`well-known Folch extraction with a chloroform-methanol solvent system (a
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`combination of neutral and polar solvents) to provide a total lipid extract in one
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`step. This is a non-selective extraction method intended to extract the total lipids
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`contained in the krill sample. Hoem Decl. (Ex. 2001), ¶52.
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`In referring to extraction of lipid components, Dr. Tallon further states that:
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`“The relative proportions can also be varied in a predictable way by applying a
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`combination of solvents with different polarity to selectively concentrate and blend
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`groups of compounds based on their different solubility. These methods and
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`solvents were well known to the POSITA.” Tallon Decl. (Ex. 1006), ¶286.
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`However, no evidence is provided that “a combination” of solvents can be devised
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`from the prior art to provide the specific claimed krill oil compositions which
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`include a specific combination of lipid classes, both neutral and polar. For
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`example, a POSITA would not combine solvents such as the chloroform-methanol
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`solvent system of Fricke with the SFE plus ethanol procedure of Catchpole. Hoem
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`Decl. (Ex. 2001), ¶53. As testified by Dr. Tallon, as of 2007 it was difficult to
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`identify solvents useful in extracting complex lipids from plant and animal tissues.
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`Tallon Depo. (Ex. 2019), p. 86, l. 2-24.
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`Additionally, the fact that Catchpole fails to provide data on the neutral
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`lipids extracted in the first step and the “other compounds” of the Extract 2
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`provides further reason why a POSITA would not combine Catchpole with a
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`reference such as Fricke to provide the claimed krill oil compositions as there is no
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`way to predict what is actually contained in the “other compounds.” Hoem Decl.
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`(Ex. 2001), ¶53. The identity of those other compounds would be important to a
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`POSITA in determining whether Fricke 1984 could be combined with Catchpole.
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`Id.
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`In summary, a POSITA would not combine references using selective
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`extraction techniques such as Catchpole and Breivik II with a reference using a
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`non-selective extraction technique such as Fricke 1984 to arrive at a krill oil with a
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`specific, defined lipid profile as claimed. Hoem Decl. (Ex. 2001), ¶53. The
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`components in the lipid extracts obtained by such selective and non-selective
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`techniques would be different and are not interchangeable to provide a single
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`defined oil. Id.
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`2.
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`A POSITA would not encapsulate krill oil with the claimed
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`ether phospholipid content because krill ether phospholipids were
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`known to precursors to compounds that trigger inflammation
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`Petitioner’s expert states that “a POSITA developing an encapsulated krill
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`oil supplement as disclosed in Sampalis I would be motivated to look to other
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`references such as Catchpole, Breivik II, and Fricke for methods of manufacturing
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`such a krill oil and to ascertain the components of the krill oil and their amounts as
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`obtained by standard extraction methods.” Tallon