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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`Paper No. 18
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RIMFROST AS
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`Petitioner
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`v.
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`AKER BIOMARINE ANTARCTIC AS
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`PATENT OWNER
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`Case No.: IPR2018-01179
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`U.S. Patent 9,375,453
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`Issue Date: June 28, 2016
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`Title: Bioeffective Krill Oil Compositions
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`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`PURSUANT TO 37 C.F.R. § 42.23 (b)
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`Inter Partes Review Case No.: IPR2018-01179
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`TABLE OF CONTENTS
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`U.S. Patent No. 9,375,453
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`I.
`II.
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`INTRODUCTION ........................................................................................... 1
`COLLATERAL ESTOPPEL PRECLUDES PO FROM ADVANCING THE
`SAME PATENTABILITY ARGUMENTS REJECTED IN IPR2018-00295,
`IPR2017-00746 AND IPR2017-00745 ........................................................... 4
`III. CLAIMS 33-61 WOULD HAVE BEEN OBVIOUS ..................................... 6
`A.
`Claims 33-38, 40-43, 46-49, 51-52, 55-58 and 60 Would
`Have Been Obvious In View of Breivik II, Catchpole,
`Bottino II and Sampalis II ..................................................................... 6
`1.
`Extract 2 of Catchpole Example 18 Contained
`Approximately 32-37% Triglycerides ........................................ 6
`Catchpole Discloses Krill Oil Extracts Having Greater
`Than 5% Ether Phospholipids As Recited In Claim 55 ............12
`A POSITA Would Have Combined The Conventional
`Extraction Techniques Disclosed In The Cited References
`And Obtained The Claimed Method Of Producing The
`Recited Polar Krill Oil ..............................................................14
`PO’s Argument That PAF Concerns Taught
`Away From Polar Krill Oil Having Greater Than
`About 3% Ether Phospholipid Lacks Merit ..............................20
`Claim 39 Is Obvious in View of Breivik II, Catchpole,
`Bottino II, Sampalis I and Sampalis II ................................................23
`Claims 44, 50, 53 and 59 Would Have Been Obvious
`In View of Breivik II, Catchpole, Bottino II, Sampalis I
`And Fricke 1984 ..................................................................................24
`Claims 44, 54 and 61 Would Have Been Obvious
`Based On Breivik II, Catchpole, Bottino II, Sampalis I
`And Randolph ......................................................................................26
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`2.
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`3.
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`4.
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`B.
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`C.
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`D.
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`i
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`IV. CONCLUSION ..............................................................................................28
`V.
`CERTIFICATE OF COMPLIANCE ............................................................29
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`I.
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`INTRODUCTION
`Patent Owner’s Response, Paper 38 (“POR”) proffers three meritless
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`arguments why challenged claims 33-61 of U.S. Patent No. 9,375,453 (“the ‘453
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`patent”) would not have been obvious.
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`First, ignoring the actual data reported in Example 18, Patent Owner (“PO”)
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`erroneously concludes that Extract 2 did not contain any triglycerides.
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`Second, PO arbitrarily categorizes conventional extraction techniques as
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`either “selective” or “non-selective,” and then baselessly contends that a POSITA
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`would not have combined ranges for polar lipids extracted using these so-called
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`different techniques.
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`Third, PO posits that a POSITA would have been deterred from preparing
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`krill oil having greater than about 3% ether phospholipids because of purported
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`concerns about Platelet Activating Factor (“PAF”) activity.
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`If the first and third arguments look familiar, they should - - PO proffered
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`these same arguments in one or more of the following “krill IPRs”: IPR2018-
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`00295; IPR2017-00746, IPR2017-00745. In fact, the current Response reads as
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`though PO believes that repetition and stridency will overcome the fact that PO
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`had a full and fair opportunity to litigate its “no triglycerides” and “PAF teaching
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`away” arguments. But that each of these arguments was expressly rejected by the
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`Board as evidenced by the factual findings and conclusions of law detailed in three
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`comprehensive Final Written Decisions finding every claim of U.S. Patent Nos.
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`9,320,765 (“the ‘765 patent”), 9,029,877 (“the ‘877 patent”) and 9,078,905 (“the
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`‘905 patent”) unpatentable. See e.g., IPR2018-00295, Final Written Decision
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`(Paper 35) (“-295 FWD”, Exhibit 1129); IPR2017-00746, Final Written Decision
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`(Paper 23) (“-746 FWD”, Exhibit 1104); IPR2017-00745, Final Written Decision
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`(Paper 24) (“-745 FWD”, Exhibit 1103).
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`The legitimacy of -746 FWD and -745 FWD was even acknowledged by
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`PO’s CEO who candidly admitted:
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`Early in the process, [PO] became aware of the
`weakness in these two patents and have since upgraded
`this particular patent family. The outcome of this
`[PTAB] hearing was therefore as expected. However,
`we wanted to see how the United States Patent and
`Trademark Office argued their decisions. Exhibit
`1111, p. 2 (emphasis added).
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`The Board has already fully considered and expressly rejected two of the
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`arguments PO recycles in an effort to rebut substantial evidence demonstrating that
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`the challenged claims of the ‘453 patent are unpatentable. PO’s remaining
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`argument fares no better. Conventional extraction techniques, regardless of how
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`categorized by PO, could have been predictably modified by a POSITA with a
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`reasonable expectation of obtaining a method of producing polar krill oil as recited
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`in the challenged claims. The preponderance of evidence demonstrates that a
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`POSITA: (1) would have known that phospholipids and its attendant
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`phosphatidylcholine and ether phosphatidylcholine sub-components, as well as
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`triglycerides and astaxanthin esters, were naturally present in krill, and could be
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`readily extracted within predictable and known ranges using conventional
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`extraction techniques; (2) would have understood that the process conditions of
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`these extraction techniques (e.g., temperature, pressure, solvents, solvent
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`concentration) could be readily modified to obtain predictable changes in the
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`composition of the resulting krill oil; and (3) would have been motivated to
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`formulate encapsulated krill oil for containing greater than about 3% ether
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`phospholipids because of the known health benefits associated with phospholipids
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`and associated omega-3 fatty acids.
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`The preponderance of evidence demonstrates that challenged claims 33-61
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`of the ‘453 patent would have been obvious.1 See, e.g., Petition, pp. 32-88,
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`Appendix A.
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`1 Petitioner relies upon its Petition (Paper 2), Tallon Decl. (Exhibit 1006) and
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`Tallon Reply/Opp. (Exhibit 1086).
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`II. COLLATERAL ESTOPPEL PRECLUDES PO
`FROM ADVANCING THE SAME PATENTABILITY ARGUMENTS
`REJECTED IN IPR2018-00295, IPR2017-00746 AND IPR2017-00745
`Collateral estoppel, also known as issue preclusion, “protects a party from
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`having to litigate issues that have been fully and fairly tried in a previous action
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`and adversely resolved against a party-opponent.” Ohio Willow Wood Co. v. Alps
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`South, LLC, 735 F.3d 1333, 1342 (Fed. Cir. 2013); see, e.g., In re Freeman, 30
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`F.3d 1459, 1465 (Fed. Cir. 1994). Collateral estoppel is applicable when:
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`(1) prior action presents [the] identical issue; (2) the prior
`action actually litigated and adjudged that issue; (3) the
`judgment in that prior action necessarily required
`determination of the identical issue; and (4) the prior
`action featured full representation of the estopped party.
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`VirnetX Inc. v. Apple, Inc., 909 F.3d 1375, 1377 (Fed. Cir. 2018).
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`Challenged claims 33-61 recite many of the same limitations, and are
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`materially identical to the unpatentable claims of the ‘765, ‘877 and ‘905 patents.
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`For example, the claims of the ‘765, ‘877 and ‘905 patents, as well as the
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`challenged claims of the ‘453 patent, recite krill oil with materially identical ranges
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`of ether phospholipids, triglycerides and astaxanthin esters.2 That some of the
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`2 The ‘453, ’765, ‘877 and ‘905 patents are in the same patent family and share the
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`same specification and priority date.
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`other limitations of ‘765, ‘877 and ‘905 patents do not appear in haec verba in the
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`challenged claims of the ‘453 patent is of no moment as the Federal Circuit has
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`held that collateral estoppel is not restricted to identical patent claims. See, e.g.,
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`Ohio Willow, 735 F.3d at 1343 (“the mere use of different words in these portions
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`of the claims do not create a new issue of invalidity”). Instead, “it is the identity of
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`the issues that were litigated that determines whether collateral estoppel should
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`apply” so that “[i]f the differences between the unadjudicated patent claims and
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`adjudicated patent claims do not materially alter the question of invalidity,
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`collateral estoppel applies.” Id. at 1342 (italics in original).
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`In addition to substantially identical claim language, the Board is also very
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`familiar with the prior art demonstrating that the challenged claims of the ‘453
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`patent are unpatentable (i.e., Breivik II, Catchpole, Bottino II, Sampalis I, Sampalis
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`II, Fricke 1984 and Randolph). This is the same prior art that the Board previously
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`relied on to find each claim of the ‘765, ‘877 and ‘905 patents unpatentable. Given
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`the substantially identical claim limitations and the same prior art, this proceeding
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`implicates at least two of the same patentability arguments that were fully
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`considered, and expressly rejected by the Board. See generally -295 FWD, pp. 35-
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`39 (“no triglycerides” and “dilution” arguments), pp. 39-47 (“PAF teaching away”
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`argument); -746 FWD, pp. 53-61 (“PAF teaching away” argument); -745 FWD,
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`pp. 29-38 (“PAF teaching away” argument). See MaxLinear, Inc. v. CF CRESPE
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`U.S. Patent No. 9,375,453
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`LLC, 880 F.3d 1373, 1376 (Fed. Cir. 2018) (collateral estoppel applies in the
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`administrative context); see also Pharmacia & Upjohn Co. v. Mylan Pharm., Inc.,
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`170 F.3d 1373, 1381 (Fed. Cir. 1999) (collateral estoppel applicable despite the
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`pendency or possibility of an appeal).
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`The Board’s prior factual findings and conclusions of law in -295 FWD,
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`-746 FWD and -745 FWD regarding, inter alia, the teachings of the prior art, the
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`motivation to combine those teachings, and its previous claim construction ruling
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`should be given preclusive effect. B&B Hardware, Inc. v. Hargis, Indus., Inc., 135
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`S. Ct. 1293, 1303 (2015) (collateral estoppel applies to issues of fact and law).
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`III. CLAIMS 33-61 WOULD HAVE BEEN OBVIOUS
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`A. Claims 33-38, 40-43, 46-49, 51-52, 55-58 and 60
`Would Have Been Obvious In View of Breivik II,
`Catchpole, Bottino II and Sampalis II
`Extract 2 of Catchpole Example 18 Contained
`1.
`Approximately 32-37% Triglycerides
`PO’s renewed attempt to argue that all neutral lipids, including triglycerides,
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`were removed during the initial extraction described in Example 18, and that
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`Extract 2 contained no triglycerides is futile for at least two reasons. First, the
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`same “no triglycerides” argument was proffered in IPR2018-00295, fully
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`considered, and soundly rejected by the Board. See -295 FWD, pp. 35-39.
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`Second, as detailed in IPR2018-00295, and as amplified below, PO’s “no
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`triglycerides” and subsidiary “dilution” arguments are each predicated upon the
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`faulty premise that all neutral lipids/triglycerides were necessarily removed during
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`the initial extraction so that no triglycerides remained to be extracted during the
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`second extraction of Example 18. POR, p. 17-20; see IPR2018-00295, PO Sur-
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`Reply (Paper 27) (“-295 PO Sur-Reply”, Exhibit 1133), pp. 3-6.
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`As an initial matter, PO’s “no-triglycerides” argument incorrectly
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`presupposes that Extract 2 of Catchpole Example 18 is being relied upon to satisfy
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`the triglycerides limitation of the challenged claims. The teachings of Bottino II,
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`not Catchpole, are being relied on to demonstrate that a POSITA would have
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`understood that conventional extraction techniques would have produced polar
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`krill oil having 20-50% triglycerides. See Petition, pp. 42, 73; Tallon Decl.,¶¶182,
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`185, 415.
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`The foundation of the rejected “no triglycerides” argument rests on PO’s use
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`of Fricke 1984 (Exhibit 1010) and some associated mathematical hand waving to
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`approximate the neutral lipids, including triglycerides, in Example 18’s krill feed
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`material. POR, pp. 19-20; see -295 PO Sur-Reply, pp. 4-5. This approximation,
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`however, is unnecessary, and wrongly concludes that the feed material contained at
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`most, 647 grams of neutral lipids/triglycerides. See Tallon Reply/Opp.,¶37-51. A
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`POSITA would have understood that Extract 2 contained 32-37% triglycerides.
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`Tallon Reply/Opp.,¶¶13-14, 45, n.7; see -295 FWD, p. 37 (“the evidence of record
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`supports the conclusion that Extract 2 of Catchpole contained a significant amount
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`of triglycerides”).3 This is consistent with the actual data in Example 18 reporting
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`that the krill feed contained 765 grams of neutral lipids, including triglycerides
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`(i.e., weight total lipids - weight phospholipids = weight neutral lipids) which
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`corresponds to approximately 33% triglycerides. See, e.g., Tallon Reply/Opp.,¶45,
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`n.7.
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`That the triglyceride content of Extract 2 fell within the recited range of the
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`challenged claims should come as no surprise. Catchpole expressly discloses that
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`in addition to lipids and phospholipids, Extract 2 contained “53.7% other
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`compounds” which included a “significant amount” of triglycerides. -295 FWD, p.
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`37 (“Dr. Tallon has credibly testified that, based on his calculations, the other
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`materials would include a significant amount of triglycerides.”); see Tallon
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`Decl.,¶¶224, 414.
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`3 Even accepting PO’s argument that the feed contained some lyso-phospholipids,
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`a POSITA would have expected that the triglyceride content of Extract 2 to still be
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`greater than 20%. Tallon Reply/Opp.,¶¶58- 62.
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`PO tries to salvage its “no triglycerides” argument by pointing to an excerpt
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`from Example 18 that the initial extraction was conducted “until no further extract
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`was obtained,” and then arguing that this “indicate[s] to a POSITA that the
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`[Example 18] process was intended to remove all neutral lipids (including
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`triglycerides) in the first step.” POR, p. 19. PO is grasping at straws. A POSITA
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`would have understood, however, that the krill feed contained some triglycerides
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`that were bound or associated with other feed constituents, would not be soluble in
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`100% CO2, and therefore could not be extracted using the initial extraction process
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`conditions. Tallon Reply/Opp.,¶¶64-76. In fact Catchpole even teaches that the
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`extraction could be carried out “using CO2 only until all of the compounds
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`soluble in CO2” were extracted. Exhibit 1009, p. 0013, lines 20-22.
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`Nevertheless, a POSITA would have recognized even after an initial CO2
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`extraction to remove as much triglycerides as possible, a second CO2-ethanol
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`extraction would remove additional triglycerides and phospholipids from the first
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`extracted feed. See Tallon Reply/Opp.,¶¶77-84. Accordingly, the use of the
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`phrase “until no further extract is obtained” merely acknowledges that not all
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`triglycerides present in the krill feed were soluble in neat CO2, and were therefore
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`incapable of being extracted under the process conditions of the initial extraction;
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`not, as PO suggests, the point where all triglycerides present in the feed have been
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`recovered. POR, p. 19. See Tallon Reply/Opp.,¶¶74-75.4
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`PO attempts to buttress its faulty “no triglycerides” argument by citing two
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`excerpts from Catchpole. POR, pp. 18-19.5 However, both excerpts simply
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`acknowledge what was disclosed in Catchpole, and what was already known in the
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`art; a supercritical extraction process can be readily adjusted by varying, inter alia,
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`4 This is consistent with, inter alia, Tanaka II, cited in the “Background of the
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`Invention” of the ‘453 patent (Exhibit 1001, 1:65-2:2), which teaches that treating
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`krill with CO2-ethanol (20%) after an initial extraction using CO2 and a low
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`ethanol concentration (5%) results in a fraction rich in triglycerides (i.e., more than
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`75%). Exhibit 1015, p. 0004; Tallon Reply/Opp.,¶¶77, 82-84; see -295 FWD, p.
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`38 (“Breivik II [Exhibit 1027] teaches that significant amounts of triglycerides are
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`present after CO2 extraction”).
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` Both statements in Catchpole are similar to those in Tanaka II that state the first
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`extraction removed “as much of the TGs [triglycerides] as possible,” and that
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`additional triglycerides were removed after the polar solvent concentration was
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`increased. Exhibit 1015, pp. 0006-0007; Tallon Reply/Opp.,¶¶77, 82-84.
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`the extraction time, temperature, solvents, and solvent concentration, depending
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`upon the amount of neutral lipids desired in the resulting extract. See, e.g.,-295
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`FWD, p. 37 (“[W]e find that an ordinarily skilled artisan would have understood
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`Catchpole as teaching that a CO2 extraction step can be used to vary the neutral
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`lipid composition of the extract. Our finding is supported by Catchpole’s express
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`disclosure that ‘[t]he feed material can be processed using pure CO2 before the co-
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`solvent is introduced to remove much or all of neutral lipids,’ thereby enriching
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`soluble phospholipid content.”); Catchpole (Exhibit 1009), p. 11, lines 11-18, p.
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`12, lines 1-3; Tallon Reply/Opp.,¶¶287-300.
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`Attempting to build on the false narrative that all neutral lipids/triglycerides
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`were removed during Example 18’s initial extraction, PO again postulates that
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`triglycerides must be added to Extract 2 to increase the triglycerides from 0% to
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`20-50% as recited in the challenged claims, thereby diluting the ether
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`phospholipids from 4.8% to 2.88-3.84%. POR, p. 20; see -295 PO Sur-Reply, p. 6.
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`Finding Extract 2 included a “significant amount of triglycerides,” the Board
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`rejected PO’s “dilution argument” concluding that it was “unpersuasive.” -295
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`FWD, p. 38; see Tallon Reply/Opp.,¶¶11-14, 282-284.
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`A POSITA would have a reasonable expectation of success that, using
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`conventional extraction techniques, a lipid composition, including phospholipids,
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`triglycerides and astaxanthin esters, could be readily extracted from Euphausia
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`superba krill as recited in the challenged claims. Tallon Decl.,¶¶409-438; see
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`Tallon Reply/Opp.,¶¶213-221, 288.
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`2.
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`Catchpole Discloses Krill Oil Extracts Having Greater
`Than 5% Ether Phospholipids As Recited In Claim 55
`PO proposes, as it did in IPR2018-00295, that the phrase “greater than about
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`5%” ether phospholipids should be narrowly construed to mean “greater than
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`4.95%.” Compare POR, pp. 14-15 with IPR2018-00295, PO’s Response (Paper
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`14) (“-295 POR”, Exhibit 1130), pp. 11-13. In that proceeding, the Board rejected
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`PO’s proposed construction, and agreed with Petitioner that “greater than about
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`5%” means “greater than 4.5%” ether phospholipids. -295 FWD, pp. 11-13. PO
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`should be estopped from relitigating the Board’s adjudicated claim construction.6
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`The same evidence supports adopting the Board’s construction from
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`IPR2018-00295. For example, a POSITA would have understood that because the
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`claimed ether phospholipid values are modified by the word “about,” those values
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`6 The Board should similarly construe “greater than about 40%”
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`phosphatidylcholine as recited in dependent claim 37 to mean “greater than
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`39.5%.” Petition, pp. 31-32; Talon Decl.,¶¶153-158; Tallon Reply/Opp.,¶326.
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`encompass a range extending 0.5% below the claimed numerical limitation, e.g.,
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`4.5% that is rounded up to 5%. Tallon Decl.,¶¶153-158; Tallon Reply/Opp.,¶¶321-
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`325. In fact, applying basic principles of significant figures and rounding rules, the
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`term “5%” encompasses all amounts that round up to that claimed value (e.g., 4.5-
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`4.9%). Further, the six claims of the ‘453 patent that expressly recite an ether
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`phospholipid limitation use only whole number values which are accurate only to
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`within the rounding values. Consequently, phrase “greater than about 5%” should
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`be construed to mean “greater than 4.5%.” Tallon Decl.,¶158; Tallon
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`Reply/Opp.,¶325.
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`Lost in PO’s claim construction argument is that Catchpole teaches krill oil
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`extracts having “greater than 5%” ether phospholipids. See, e.g.,
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`-295 FWD, p. 49 (“Catchpole specifically teaches a preference for compositions
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`containing greater than 5% by weight acylalkyphospholipids”). For example,
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`Catchpole discloses a process to extract a product (Claim 1) from marine animals
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`(e.g., krill) (dependent Claim 40) where the resulting product has “greater than
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`5%” ether phospholipids (e.g., acylalkyphospholipids) (dependent Claim 95).
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`Tallon Reply/Opp.,¶¶97-101; see, e.g., -295 FWD, p. 51 (“[A]lthough Catchpole
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`might not contain a specific example of a krill oil composition having in excess of
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`5% ether phospholipids, Catchpole teaches that it is desirable to prepare such a
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`composition. As Dr. Tallon has testified, one skilled in the art would have been
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`able to create such a composition using conventional extraction techniques.”).
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`3.
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`A POSITA Would Have Combined The
`Conventional Extraction Techniques Disclosed
`In The Cited References And Obtained The Claimed
`Method Of Producing The Recited Polar Krill Oil
`PO wants the Board to categorize the conventional extraction techniques
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`disclosed in the cited references as either “selective” or “non-selective.” POR, pp.
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`24-31. Based upon its self-styled distinction, PO contends that “a POSITA would
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`not combine references using selective extraction techniques such as Catchpole and
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`Breivik II with a reference using a non-selective extraction technique such as
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`Bottino II or Fricke to arrive at a krill oil with a specific, defined lipid profile as
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`claimed.” POR, p. 31 (bold and italics in original). PO’s “litigation-induced”
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`distinction fails to support the patentability of the challenged claims. In point of
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`fact, all extraction techniques are selective. Tallon Reply/Opp.,¶¶18, 107-115.
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`Even PO’s expert conceded he was unaware of any reference drawing the
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`distinction PO proposes, and acknowledged that it is what the process does that
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`actually matters. Exhibit 1128, 19:21-20:24, 25:5-19.
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`PO incorrectly posits “it was far from predictable or easy to extract complex
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`lipids, including phospholipids, from a source material,” citing testimony from Dr.
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`Tallon. POR, pp. 25-26; see -295 POR, pp. 15-17. That testimony, however, was
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`limited to a question about a PCT application’s broad definition of the phrase
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`U.S. Patent No. 9,375,453
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`“complex lipids.” Exhibit 2019, pp. 82-85. Cleary, the prior art demonstrates that
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`it was very well known to extract phospholipids from krill. See, e.g., Tallon
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`Decl.,¶¶ 188-225.
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`By focusing on its self-serving categorization of conventional extraction
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`techniques, PO attempts to confuse the issue of patentability by asserting that a
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`“POSITA would understand that the polar extraction method used in Catchpole
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`will selectively extract components that are different than the combination of polar
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`and non-polar solvents used in Bottino is intended for non-selective extraction of
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`all classes of lipids.” POR, p. 27. Contrary to PO’s contrived process “selectivity”
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`strawman, properly framed, the obviousness question is whether a method of
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`producing polar krill oil having the broad ranges of phospholipids, triglycerides
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`and astaxanthin esters recited in the challenged claims would have been obvious in
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`view of the conventional extraction techniques readily available to a POSITA.
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`Challenged claims 33-61 recite a conventional extraction technique that
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`produces an almost limitless number of compositions having broad ranges of
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`components naturally present in krill (e.g., greater than about 3% ether
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`phospholipids, 27-50% non-ether phospholipids, 20-50% triglycerides and greater
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`than about 100 mg/kg of astaxanthin esters) that, based upon the teachings in the
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`Inter Partes Review Case No.: IPR2018-01179
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`art, would have been well within the purview of a POSITA. Tallon Decl.,¶¶409-
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`U.S. Patent No. 9,375,453
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`443. Based on the teachings of Breivik II and Catchpole in view of Bottino II, a
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`POSITA would have possessed a reasonable expectation of obtaining a method of
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`producing polar krill oil falling within the recited ranges of ether phospholipids,
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`non-ether phospholipids, triglycerides and astaxanthin esters. Tallon Decl.,¶¶408-
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`443; Tallon Reply/Opp.,¶¶18, 103-104, 110-115, 216-250, 288-300; see -295
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`FWD, pp. 64-65.
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`PO’s gratuitous statement that “[d]ifferent solvents and different extraction
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`schemes applied to krill will produce krill lipid extracts with different lipid
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`profiles” is simply redundant and unremarkable. POR, p. 28; see -295 POR, p. 18.
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`Contrary to PO’s suggestion, the art recognized that conventional extraction
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`techniques employing different process conditions (e.g., temperatures, pressures,
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`solvents and solvent concentrations) could be predictably modified to produce krill
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`oil having different percentages of, inter alia, ether phospholipids, triglycerides
`
`and astaxanthin esters. Tallon Reply/Opp.,¶¶289-300; see, e.g., Catchpole (Exhibit
`
`1009), p. 0011, lines 11-18, p. 12, lines 1-3, 13-17; see -295 FWD, p. 37
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`(Catchpole “teach[es] that a CO2 extraction step can be used to vary the neutral
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`lipid composition”).
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`Inter Partes Review Case No.: IPR2018-01179
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`U.S. Patent No. 9,375,453
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`The fallacy of PO’s distinction between so-called “selective” and “non-
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`selective” techniques is underscored by its assertion that no ‘“combination’ of
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`solvents can be devised from the prior art to provide the specific claimed krill oil
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`composition which includes a specific combination of lipid classes, both neutral
`
`and polar.” POR, p. 31. However, even the ‘453 patent acknowledges that it was
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`known in the art to extract krill oil with organic solvents, and that neutral lipids
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`could be removed using supercritical CO2. Exhibit 1001, 1:31-2:2. Further, both
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`Catchpole and Breivik II disclose extraction processes using a combination of
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`solvents (e.g., CO2 and ethanol) to obtain krill oil extracts having both neutral and
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`polar lipids. See, e.g., -295 FWD, p. 37; see Tallon Reply/Opp.,¶¶107. In fact, the
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`Board previously credited Dr. Tallon’s testimony that “the relative proportions of
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`krill oil constituents could be varied in predictable ways by applying a single
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`solvent or combination of solvents including supercritical fluid extraction to
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`selectively extract specific groups of lipid components based on their different
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`solubility.” -295 FWD, p. 37.
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`Catchpole describes a host of health benefits associated with the
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`administration of phospholipids, including ether phospholipid compositions
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`extracted from krill, and discloses a process to produce krill oil that contains
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`Inter Partes Review Case No.: IPR2018-01179
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`desirable levels of particular phospholipids. Exhibit 1009, p. 1, line 11 - p. 2, line
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`U.S. Patent No. 9,375,453
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`2, p. 25, lines 9-13; Tallon Decl.,¶¶216-217.
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`Similarly, Breivik II discloses treating and processing freshly captured krill
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`using a CO2 and ethanol extraction process resulting in a krill oil extract having
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`phospholipids, triglycerides and astaxanthin. Exhibit 1037, p. 8, lines 11-21; p. 9,
`
`lines 4-11); see -295 FWD, p. 37; Tallon Decl.,¶204. Breivik II also discloses the
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`health benefits of marine phospholipids and that the omega-3 fatty acid bound to
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`the marine phospholipids have particularly beneficial properties. Exhibit 1037, p.
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`0005, lines 20-30; see Tallon Decl.,¶191.
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`Bottino II discloses a process that produces Euphausia superba krill oil
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`having triglyceride levels between 20-50%. (Exhibit 1038, p. 0003; see Tallon
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`Decl.,¶¶182-187. Additionally, Sampalis II discloses that krill oil phospholipids
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`have a superior lipid profile, the highest quantities of DHA, and are the only
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`phospholipids that contain a combination of EPA and DHA on the same molecule.
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`Exhibit 1013, p. 0036, 34:16-18. It was also known that the unique association
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`between the phospholipids and long chain omega-3 fatty acids increase
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`bioavailability and are beneficial, particularly in connection with cardiovascular
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`disease. Tallon Decl.,¶¶90, 292, 299, 326-330. Further, astaxanthin was
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`recognized as a well-known antioxidant, and it was known that Neptune’s NKO
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`Inter Partes Review Case No.: IPR2018-01179
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`krill oil product was “rich in phospholipids and triglycerides.” Sampalis I (Exhibit
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`U.S. Patent No. 9,375,453
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`1012), p. 0004. It was also recognized that krill oil was safe for oral administration
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`as evidenced by Neptune’s commercial krill oil product. See, e.g., Exhibit 1070;
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`Exhibit 1075; Tallon Decl.,¶¶60, 94-96, 227, 284; Tallon Reply/Opp.,¶¶144., 175,
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`190-200, 226-227.
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`In sum, Petitioner has demonstrated by a preponderance of evidence there
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`would have been a reasonable expectation that a POSITA would arrive at the
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`claimed method of producing polar krill oil having the recited ranges of ether
`
`phospholipids, triglycerides and astaxanthin esters, why the recited ranges would
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`have been desirable, and, therefore, why a POSITA would have been motivated to
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`combine the elements disclosed in the prior art detailed in Ground 1. See, e.g.,
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`Petition, pp. 33-56; Tallon Decl.,¶¶408-443; Tallon Reply/Opp.,¶¶18, 103-115,
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`216-227, 288.
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`U.S. Patent No. 9,375,453
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`4.
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`PO’s Argument That PAF Concerns
`Taught Away From Polar Krill Oil Having Greater
`Than About 3% Ether Phospholipid Lacks Merit
`In what is now its fourth attempt, PO again tries to convince the Board that
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`PAF concerns taught away from krill oil having enhanced levels of ether
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`phospholipids. POR, pp. 31-33. PO’s current rendition of its “PAF teaching
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`away” argument offers nothing that has not already been fully considered and
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`expressly rejected by the Board on three prior occasions. See, e.g., -295 FWD, pp.
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`39-47; -746 FWD, pp. 53-61; -745 FWD, pp. 29-38. The Board and Petitioner
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`should not have to expend additional time and resources addressing this meritless
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`argument.
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`The two “PAF references” expressly cited by PO, Tanaka I and Blank, are
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`not new to the Board. POR, pp. 32-33; see, e.g., -295 FWD, pp. 25-26, 44.
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`Tanaka I expressly states the identified foodstuffs, including krill, are only
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`“potential sources of compounds with high PAF-like activity,” and “[t]he
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`occurrence of PAF-like lipids in some stored foods is still speculative and
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`requires further investigation.” Exhibit 1014, pp. 0001, 0005 (emphasis added);
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`Tallon Reply/Opp.,¶¶138-140, 148-152. Tanaka’s speculation and call for
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`“further investigation” does not teach away from krill oil having greater than 3%
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`et
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