IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`_________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________________
`
`
`RIMFROST AS
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`Patent Owner.
`
`____________________________
`
`Case IPR2018-01730
`
`U.S Patent No. 9,072,752
`
`_______________________
`
`Patent Owner’s Response to Petition for Inter Partes Review of
`U.S. Patent No. 9,072,752
`
`
`
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`TABLE OF CONTENTS
`INTRODUCTION..............................................................................................................3 
`
`SUMMARY OF ARGUMENT .........................................................................................4 
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`
`
`I. 
`
`II. 
`
`III. 
`
`BACKGROUND ................................................................................................................7 
`
`A. 
`B. 
`
`THE ‘752 PATENT CLAIMS .................................................................................7 
`TECHNOLOGY OVERVIEW ................................................................................8 
`
`LEGAL STANDARDS ....................................................................................................10 
`
`CLAIM CONSTRUCTION ............................................................................................11 
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`IV. 
`
`V. 
`
`VI.   LEVEL OF SKILL IN THE ART ..................................................................................14 
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`VII.  CLAIMS 1 - 20 ARE NOT ANTICIPATED BY OR OBVIOUS OVER THE
`COMBINED REFERENCES .........................................................................................15 
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`A. 
`
`Ground 1: Claims 1, 5-6 and 11 are not anticipated by Catchpole ........................15 
`
`1. 
`
`2. 
`
`Claims 1 and 11 are not anticipated because Catchpole does not
`teach krill oil with greater than about 5% ether phospholipids .................15 
`Claims 5 and 6 are not anticipated because Catchpole does not
`teach krill oil with greater than about 6% or 7% ether
`phospholipids .............................................................................................17 
`
`B. 
`
`C. 
`
`D. 
`
`E. 
`
`F. 
`
`Ground 2: Claims 4, 7, and 12-13 are not obvious over the combination of
`Catchpole and Sampalis II .....................................................................................18 
`Ground 3: Claims 8-10 are not obvious over the combination of
`Catchpole, Grynbaum and Randolf ........................................................................22 
`Ground 4: Claims 1-3, 5-6 and 11 are not obvious over the combination of
`Catchpole and Enzymotec......................................................................................24 
`Ground 5: Claims 14-16 and 20 are not obvious over the combination of
`Catchpole, Enzymotec and Sampalis II .................................................................32 
`Ground 6: Claims 17-19 are not obvious over the combination of
`Catchpole, Enzymotec, Sampalis II, Grynbaum and Randolf ...............................35 
`
`VIII.   CERTIFICATE OF COMPLIANCE ............................................................................38 
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`IX.  CONCLUSION ................................................................................................................38 
`
`CERTIFICATE OF SERVICE ..................................................................................................39 
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`INTRODUCTION
`Pursuant to 37 C.F.R. § 42.120, Patent Owner Aker BioMarine Antarctic AS
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`
`I.
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`(“Patent Owner” or “Aker”) Responds to the Petition for Inter Partes Review
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`(“Petition”) of U.S. Patent No. 9,072,752 (“the ‘752 Patent”) filed by Rimfrost AS
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`(“Petitioner” or “Rimfrost”). On March 12, 2019 the Patent Trial and Appeal
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`Board instituted this Inter Partes review of claims 1 – 20 of the ‘752 Patent based
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`on 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
`
`issue:
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`Ground References
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`Basis
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`Claims
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`Challenged
`
`§ 102(e)
`§ 103(a)
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`1, 5, 6 and 11
`4, 7, 12, and 13
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`§ 103(a)
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`8-10
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`§ 103(a)
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`1-3, 5, 6, and 11
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`§ 103(a)
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`14-16 and 20
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`1
`2
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`3
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`4
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`5
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`Catchpole (Ex. 1009)
`Catchpole (Ex. 1009)
`Sampalis (Ex. 1013)
`Catchpole (Ex. 1009)
`Grynbaum (Ex. 1039)
`Randolf (Ex. 1011)
`Catchpole (Ex. 1009)
`Enzymotec (Ex. 1048)
`Catchpole (Ex. 1009)
`Enzymotec (Ex. 1048)
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`IPR2018-01730
`U.S. Patent No. 9,072,752
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`§ 103(a)
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`17-19
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`6
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`
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`Sampalis (Ex. 1013)
`Catchpole (Ex. 1009)
`Enzymotec (Ex. 1048)
`Sampalis (Ex. 1013)
`Grynbaum (Ex. 1039)
`Randolf (Ex. 1011)
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`II.
`
`SUMMARY OF ARGUMENT
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`Petitioner fails to establish by a preponderance of the evidence that it’s cited
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`prior art renders any patented claim anticipated or obvious.
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`First, none of the references disclose the claim limitations of greater than
`
`about 5% ether phospholipids in the independent claims and greater than about 6%
`
`or 7% ether phospholipids in dependent claims 5, 6, 15 and 16. Catchpole is the
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`only cited reference that discloses the ether phospholipid content of a krill oil.
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`That amount is allegedly 4.8% w/w of the Extract 2 krill oil in Example 18 of
`
`Catchpole. Ex. 1009 at 0024. Patent Owner defines the broadest reasonable
`
`interpretation of the term “about greater than 5%” to mean “greater than 4.95%.”
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`Catchpole does not teach a krill oil with greater than 4.95% ether phospholipids
`
`w/w under that definition and does not teach krill oils with greater than about 6%
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`or 7% ether phospholipids w/w under either Patent Owner’s or Petitioner’s
`
`definitions of those terms. Furthermore, the statements in Catchpole that
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`compositions of the invention may contain greater than about 5% or 10%
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`acylalkylphospholipids do not apply specifically to krill oil as Catchpole provides a
`
`virtually unlimited list of source materials. Hoem Decl. (Ex. 2001) ¶47.
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`Second, Catchpole specifically discloses that its extraction method (a
`
`specific two-step SFE method) leads to an extract “highly enriched” for the ether
`
`phospholipid AAPC. There is no evidence that extraction methods used, for
`
`example, by Enzymotec (Ex. 1048) similarly enrich for AAPC or any other ether
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`phospholipid. In fact, Enzymotec does not disclose what extraction methods were
`
`used (for example what solvents and under what conditions) or how their extracts
`
`were analyzed. Without this information, a POSITA would not combine
`
`references such as Catchpole and Enzymotec or use the ether phospholipid content
`
`in disclosed in Catchpole to estimate the ether phospholipid content of different
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`krill extracts such as the Enzymotec Grade B krill lecithin. Hoem Decl. (Ex. 2001)
`
`¶48.
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`Third, a POSITA would understand from Catchpole’s disclosure that the
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`ether phospholipid content of its krill extracts could not be increased, for example,
`
`by removing neutral lipids. Catchpole specifically teaches that its methods use a
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`first CO2-only extraction step to remove “much or all” of neutral lipids. Ex. 1009
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`at 0011, l. 23-25; 0013, l. 20-22. As shown in detail below, the data in Example 18
`
`is consistent with this teaching and indicates that all neutral lipids were removed in
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`the first step of the Catchpole SFE extraction procedure. If all of the neutral lipids
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`are removed in the first step, a POSITA would understand that the amounts of the
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`reported phospholipids including ether phospholipids could not be increased by
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`changing the extraction conditions as the maximum amount of these components
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`had been obtained. Hoem Decl. (Ex. 2001) ¶49.
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`Fourth, ether phospholipids, especially marine ether phospholipids rich in
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`long chain polyunsaturated fatty acids such as docosahexaenoic acid (DHA) were
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`known in the art prior to the priority date of the ‘752 patent to be precursors for
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`compounds with potent Platelet Activating Factor (PAF) activity. The prior art
`
`expressed real concern that when ingested and adsorbed into the body, these ether
`
`phospholipids and their metabolites would be subject to uncontrolled peroxidation
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`generating pro-inflammatory PAF-like molecules. Thus, a POSITA would have
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`been led by the prior art to limit the amount ether phospholipids in krill oil as
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`opposed to providing compositions with the claimed levels of ether phospholipids.
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`Hoem Decl. (Ex. 2001) ¶50.
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`III. BACKGROUND
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`A.
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`THE ‘752 PATENT CLAIMS
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`The ‘752 patent has two independent claims, claims 1 and 14, and 20 total
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`claims. Claim 1 of the ‘752 patent is directed to krill oil containing specified
`
`levels of phosphatidylcholine and ether phospholipids. Claim 1 reads as follows:
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`1. A polar krill oil comprising greater than about 40%
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`phosphatidylcholine w/w of said krill oil and greater than about 5% ether
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`phospholipids w/w of said krill oil.
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`Dependent claim 5 further requires that the ether phospholipid content is
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`greater than about 6% and dependent claim 6 further requires that the ether
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`phospholipid content is greater than about 7%.
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`Independent claim 14 of the ‘752 patent is directed to Euphausia superba
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`krill oil containing specified levels of phosphatidylcholine, ether phospholipids,
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`triglycerides and omega-3 fatty acids as well as astaxanthin. Claim 14 reads as
`
`follows:
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`
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`14. A Euphausia superba krill oil comprising greater than about 45%
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`phosphatidylcholine w/w of said krill oil, greater than about 5% ether
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`IPR2018-01730
`U.S. Patent No. 9,072,752
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`phospholipids w/w of said krill oil, less than about 25% triglycerides w/w of
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`said krill oil, at least 36% omega-3 fatty acids w/w of said krill oil, and
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`astaxanthin.
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`
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`Dependent claim 15 further requires that the ether phospholipid content is greater
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`than about 6% and dependent claim 16 further requires that the ether phospholipid
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`content is greater than about 7%.
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`The patentability of dependent claims 5, 6, 15 and 16 is separately argued
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`below.
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`B.
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`TECHNOLOGY OVERVIEW
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`As explained in the ‘752 patent, while several prior art publications
`
`disclosed the production of krill oil containing phospholipids, there were problems
`
`involved in using Antarctic krill as a source of oil for because of degradation of
`
`lipids contained in the krill during transport and storage after capture in the
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`Southern Ocean. Hoem Decl. (Ex. 2001), ¶42, citing ‘752 Patent, Ex. 1001, col. 1,
`
`30-45. The ‘752 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
`
`product and then transported to the site of extraction and/or be stored as needed.
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`Hoem Decl. (Ex. 2001), ¶43, citing ‘752 patent (Ex. 1001) col. 9, l. 27 - col. 11, l.
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`IPR2018-01730
`U.S. Patent No. 9,072,752
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`2. For example, the ‘752 patent describes extraction of krill oil from a denatured
`
`krill product, krill meal, made by steam cooking krill followed by drying. Id., Ex.
`
`1001, col 18, l. 10-24 and col. 31, l. 24-41. Krill oil extracted from denatured krill
`
`meal that had been stored for 19 months contained virtually no decomposed
`
`phospholipids. Id., Ex. 1001, col. 10. l. 51 – 53, col. 31, l. 29-41.
`
`Previous to the ‘752 patent, publications such as Yamaguchi et al., (1986) J.
`
`Agric. Food. Chem., 34(5):904-907 (Ex. 2002) actually taught that supercritical
`
`fluid extraction with carbon dioxide should be used to extract neutral krill oil from
`
`krill meal to exclude “phospholipids that interfere with the utilization of krill oils.”
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`Hoem Decl. (Ex. 2001), ¶44. Yamaguchi further reported that extraction from krill
`
`meal yielded one-third less neutral krill oil than extraction from freeze-dried krill.
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`Ex. 2002 at p. 752, col. 2. As stated by Yamaguchi: “The lower yields from meal
`
`oil are probably attributable to the fact that that the oil of the krill meal was in part
`
`deteriorated by oxidation or polymerization to such an extent that only limited
`
`extraction occurred with SC-CO2.” Id. Publications such as Sampalis II (Ex. 1013,
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`cited by Petitioner), then turned to the use of fresh or frozen krill and cold
`
`extraction methods to produce krill oil for encapsulation and human consumption.
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`Hoem Decl. (Ex. 2001), ¶44, citing Ex. 1013, at p. 33-34.
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`Thus, the ‘752 patent discloses commercially relevant improvements to
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`IPR2018-01730
`U.S. Patent No. 9,072,752
`Patent Owner Response
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`previous processes for making krill oil with desired properties. The krill oil
`
`resulting from these processes is characterized and distinguished from prior art
`
`krill oil by the combination or parameters listed in the claims. Krill oil made by
`
`different process would be expected by a POSITA to have different combinations
`
`of properties. Hoem Decl. (Ex. 2001), ¶45.
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`IV. LEGAL STANDARDS
`A patent is invalid as obvious only “if the differences between the claimed
`
`invention and the prior art are such that the claimed invention as a whole would
`
`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
`
`U.S.C. § 103(a). To invalidate a claim for obviousness, the prior art must teach or
`
`suggest each and every claimed feature. CFMT, Inc. v. YieldUp Int’l Corp., 349
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`F.3d 1333, 1342 (Fed. Cir. 2003). Significantly, “a patent composed of several
`
`elements is not proved obvious merely by demonstrating that each of the elements
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`was, independently, known in the prior art.” KSR Int’l Co. v. Teleflex Inc., 127
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`S.Ct. 1727, 1741 (2007). To prove obviousness based on more than one reference,
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`one must show that (1) a person of ordinary skill in the art would have been
`
`motivated to combine the references, and (2) there would have been a reasonable
`
`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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`IPR2018-01730
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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
`
`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.,
`
`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
`
`meaning as would be understood by one of ordinary skill at the time of the
`
`invention). This standard applies as the filing date of the Petition in this IPR was
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`before the October 11, 2018 rule change. In accordance with these standards,
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`Patent Owner submits that, in relation to this proceeding, the following claim terms
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`should be construed as set forth below.
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` “polar krill oil” Petitioner defines krill oil as “krill oil containing
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`IPR2018-01730
`U.S. Patent No. 9,072,752
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`polar lipids.” Petition, p. 19. For the purposes of this proceeding, Patent Owner
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`accepts this definition.
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` “astaxanthin” Petitioner defines “astaxanthin” as a molecule having
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`the following structure:
`
`
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`including the -cis and -trans forms of the molecule. ‘1730 Petition, p. 21. For the
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`purposes of this proceeding, Patent Owner accepts this definition.
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` “astaxanthin esters” Petitioner defines “astaxanthin esters” as “[a]n
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`astaxanthin molecule in which one or both of the hydroxyl groups are replaced by
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`a fatty acid tail connected to the astaxanthin molecule through an ester bond.”
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`Petition, p. 27. For the purposes of this proceeding, Patent Owner accepts this
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`definition.
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` “greater than about 5% w/w ether phospholipids” Petitioner
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`defines “greater than about 5% w/w ether phospholipids" as "greater than 4.5%
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`ether phospholipids w/w of said krill oil.” Petition at pp. 26-27. For the following
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`reasons, Patent Owner asserts that the broadest reasonable interpretation of
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`IPR2018-01730
`U.S. Patent No. 9,072,752
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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 “[t]he ‘752 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., ¶166. 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), ¶40. For example, Dr.
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`Tallon acknowledges at ¶72 of his Declaration that the ‘752 patent discloses in
`
`Examples 7 and 8 values for total phospholipids and ether phospholipids that are
`
`accurate to a tenth of a percent. As recognized by Dr. Tallon: “The krill oil
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`obtained from Example 7 contained 13.0% (AAPC) + 0.9% (LAAPC) + 1.5%
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`(AAPE) = 15.4% ether phospholipids as a percentage by weight of phospholipids.
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`However, phospholipids only constituted 47.9% of the Patent Owner’s Krill oil
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`obtained from Example 7. Thus, ether phospholipids constituted 7.4% by
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`weight of the Patent Owner’s Krill oil obtained from Example 7 (15.4% x .479 =
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`7.38%).” Ex. 1006, Tallon Decl., ¶75 (emphasis added). Thus, applying the
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`rounding rationale proposed by Petitioner, the actual rounding should be from the
`
`tenth of a percent. Thus, 4.95% would round up to 5.0% and be included in the
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`term “about 5%”. Likewise, 4.94% would round down to 4.9% and would not be
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`included in the term “about 5%.” For these reasons, a POSITA, upon reading and
`
`understanding the entire ‘752 patent specification, would define the term “greater
`
`than about 5% w/w ether phospholipids” as “greater than 4.95% ether
`
`phospholipids w/w of said krill oil.” See, Hoem Decl. (Ex. 2001), ¶37. For these
`
`same reasons, a POSITA, upon reading and understanding the entire ‘752 patent
`
`specification, would define the term “greater than about 6% w/w ether
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`phospholipids” as “greater than 5.95% ether phospholipids w/w of said krill oil”
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`and “greater than about 7% w/w ether phospholipids” as “greater than 6.95% ether
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`phospholipids w/w of said krill oil.” See, Hoem Decl. (Ex. 2001), ¶40.
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` “greater than about 40% phosphatidylcholine" Petitioner defines
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`“greater than about 40% phosphatidylcholine" as "greater than 39.5%
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`phosphatidylcholine." Petition, p. 27. Petitioner relies on the testimony of Dr.
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`Tallon at ¶168 of his declaration (Ex. 1006). However, for the same reasons as
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`applied to the definition of about greater than 5%, the broadest reasonable
`
`interpretation of “greater than about 40% phosphatidylcholine" is "greater than
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`39.95% phosphatidylcholine.” Hoem Decl. (Ex. 2001), ¶41.
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`VI. LEVEL OF SKILL IN THE ART
`Petitioner has proposed the following definition of a person of ordinary skill
`
`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." ¶34). For the purposes of this Proceeding, Patent Owner accepts this
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`definition of a POSITA.
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`VII. CLAIMS 1 - 20 ARE NOT ANTICIPATED BY OR OBVIOUS OVER
`THE COMBINED REFERENCES
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`A. Ground 1: Claims 1, 5-6 and 11 are not anticipated by Catchpole
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`1.
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`Claims 1 and 11 are not anticipated because Catchpole does not
`teach krill oil with greater than about 5% ether phospholipids
`Regarding asserted Ground 1, Petitioner alleges that Catchpole discloses
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`krill oil extract having 4.8% ether phospholipids. Petition at 28-34, referring to Ex.
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`1009 at 0024, Table 16, Extract 2. The Board relies on the 4.8% ether phospholipid
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`content of Catchpole Extract 2 in the Institution Decision to find that Petitioner has
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`established a reasonable likelihood of prevailing with respect to claim 1 and 11.
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`Institution Decision at 10, 12.
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`As argued above, Petitioner asserts that the broadest reasonable
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`interpretation of the claim term “greater than about 5% ether phospholipids” in
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`claim 1 (and claim 11 which depends on claim 1) is greater than 4.95% ether
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`phospholipids. The only disclosure of a krill oil with ether phospholipids is
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`Extract 2 described in Example 18, Table 16 of Catchpole. Ex. 1009 at 0024.
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`Extract 2 of Example 18 does not provide the claim limitation of greater than
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`4.95% ether phospholipids and thus does not anticipate claims 1 and 11. Hoem
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`Decl. (Ex. 2001) ¶74.
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`Catchpole does contain general statements that compositions of the
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`invention may contain greater than 5% or 10% acylalkylphospholipids and/or
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`plasmalogens. These statements in Catchpole do not specifically refer to krill oil.
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`Hoem Decl. (Ex. 2001) ¶76. In fact, Catchpole teaches that that suitable source
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`materials are virtually unlimited and include “terrestrial animals, marine animals,
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`terrestrial plants, marine plants, or micro-organisms such as microalgae, yeast and
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`bacteria. Preferably the feed material is derived from sheep, goat, pig, mouse,
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`water buffalo, camel, yak, horse, donkey, bovine of human.” Ex. 1009 at 0007.
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`Since Catchpole teaches that a virtually unlimited number of source materials can
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`be extracted to provide phospholipid extracts, there is no reason for a POSITA to
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`conclude that the statements in Catchpole mentioning greater than 5% or 10%
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`acylalkylphospholipids and/or plasmalogens apply to krill oil in general or to the
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`krill oil described in Example 18 of Catchpole. Hoem Decl. (Ex. 2001) ¶76.
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`This is consistent with the Board’s findings in the Institution Decision. In
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`the Institution Decision, the Board stated:
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`With respect to claims 5 and 6, we are not satisfied that Petitioner has
`established a reasonable likelihood that it would prevail in showing that
`dependent claims 5 and 6 are anticipated by Catchpole. While we agree
`with Petitioner that Catchpole teaches compositions that can contain greater
`than 10% acylalkylphospholipids, we do not agree that Catchpole discloses a
`krill oil composition having that amount of acylalkylphospholipids.
`
`Institution Decision at 11. Thus, based on Patent Owner’s proposed construction
`
`of the term “greater than about 5% ether phospholipids” as meaning greater than
`
`4.95% ether phospholipids, Catchpole does not teach each element of claims 1 and
`
`11 and does not anticipate those claims.
`
`2.
`
`Claims 5 and 6 are not anticipated because Catchpole does not
`teach krill oil with greater than about 6% or 7% ether
`phospholipids
`Petitioner asserts that Catchpole teaches krill oils contains greater than about
`
`6% ether phospholipids (claim 5) and greater than about 7% ether phospholipids
`
`(claim 7). This assertion is based on general statements in Catchpole that
`
`compositions of the invention can contain greater than 5% or 10%
`
`
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`acylalkylphospholipids and/or plasmalogens. The Institution Decision indicates
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`U.S. Patent No. 9,072,752
`Patent Owner Response
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`that Petitioner did not establish a reasonable likelihood that it would prevail with
`
`respect to claims 5 and 6. Institution Decision at 11-12. As discussed above, this
`
`finding is correct because Catchpole teaches that a virtually unlimited number of
`
`source materials can be extracted to provide phospholipid extracts. Thus, there is
`
`no reason for a POSITA to conclude that the statements in Catchpole mentioning
`
`greater than 5% or 10% alkylacylphospholipids and/or plasmalogens apply to krill
`
`oil in general or to the krill oil described in Example 18 of Catchpole. Hoem Decl.
`
`(Ex. 2001) ¶76. Accordingly, Claims 5 and 6 are not anticipated by Catchpole
`
`because Catchpole does not teach krill oils containing greater than about 6% or 7%
`
`ether phospholipids under either Patent Owner’s or Petitioner’s definition of those
`
`terms.
`
`B. Ground 2: Claims 4, 7, and 12-13 are not obvious over the
`
`combination of Catchpole and Sampalis II
`
`Ground 2 asserts that claims 4, 7, 12, and 13 are obvious over the
`
`combination of Catchpole (Ex. 1010) and Sampalis II (Ex. 1013). Claims 4, 7, 12
`
`and 13 depend from claim 1 and add additional limitations related to omega-3 fatty
`
`acid content (claims 4), inclusion of astaxanthin in the composition (claim 7),
`
`species of the krill (Euphausia superba; claim 12), and formulation in a capsule
`
`(claim 13). The Institution Decision indicates that Petitioner has established a
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`reasonable likelihood that it would prevail with respect to Ground 2 challenge. For
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`Patent Owner Response
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`the following reasons, Patent Owner submits that claims 4, 7 and 12-13 are not
`
`obvious over the cited references.
`
`1.
`
`The combined references do not disclose krill oil contains greater
`
`than about 5% ether phospholipids.
`
`Sampalis II does not disclose the amount of ether phospholipids in the
`
`disclosed krill oil. Hoem Decl. (Ex. 2001) ¶78. Claims 4, 7, 12 and 13 depend on
`
`claim 1 and thus require that the claimed krill oil contain greater than about 5%
`
`ether phospholipids. As discussed above in relation to Ground 1, Patent Owner
`
`defines “greater than about 5% ether phospholipids” to mean greater than 4.95%
`
`ether phospholipids. The only description of krill oil in Catchpole is provided in
`
`Table 16 of Example 18. Table 16 discloses that the ether phospholipid content of
`
`the Extract 2 krill oil is 4.8%. Ex. 1009 at 0024. Catchpole does not teach a krill
`
`oil that contains 4.95% ether phospholipids. Hoem Decl. (Ex. 2001) ¶78. As also
`
`discussed above, the statements in Catchpole referring to phospholipid
`
`compositions with greater 5% or 10% acylalkylphospholipids (AAPC) and/or
`
`plasmalogens are not specific to krill oil and instead could apply to a virtually
`
`unlimited number of starting materials. A POSITA would not read those
`
`statements as applying to krill oil and instead would understand that the maximum
`
`amount of ether phospholipids in krill oil was 4.8% as disclosed for Extract 2 in
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`Example 18. Hoem Decl. (Ex. 2001) ¶78. Accordingly, claims 4, 7, and 12-13 are
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`not obvious because the combined references do not teach each element of the
`
`claims.
`
`2.
`
`The combined references do not provide a reasonable expectation
`
`of success of arriving at a krill oil containing greater than about 5% ether
`
`phospholipids.
`
`A POSITA would understand from the data disclosed in Catchpole that there
`
`was no reasonable expectation of success for producing a krill oil with greater than
`
`about 5% ether phospholipids as that term is defined by Patent Owner. The 4.8%
`
`ether phospholipids reported for Extract 2 represented a “highly enriched” amount
`
`of AAPC. See Ex. 1009 at 0024. A POSITA would understand that further
`
`enrichment is not possible because Example 18 of Catchpole teaches that neutral
`
`lipids were removed from the feed materials in the first step of the extraction
`
`process. Hoem Decl. (Ex. 2001) ¶¶53-64. This is consistent with the teaching in
`
`Catchpole that the first SFE (Super-critical Fluid extraction) step with neat CO2 is
`
`intended remove much or all of neutral lipids. Ex. 1009 at 0011, l. 23-25; 0013, l.
`
`20-22; See Hoem Decl. (Ex. 2001) ¶¶49, 52. Since the neutral lipids were
`
`removed, it would not be possible to increase the content of ether phospholipids in
`
`Extract 2 by further removal of neutral lipids. Hoem Decl. (Ex. 2001) ¶79. Thus, a
`
`
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`POSITA would understand based on the teachings of Catchpole that 4.8% ether
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`phospholipids was the maximum amount that could be obtained in a krill oil. Id.
`
`3.
`
`A POSITA would not combine the references to provide a krill oil
`
`with greater than about 5% ether phospholipids because the prior art leads a
`
`POSITA away from such compositions.
`
`A POSITA as of the priority date of the instant invention and considering the
`
`prior art as a whole would have been directed away from producing krill oil with
`
`greater than about 5% ether phospholipids w/w. Hoem Decl. (Ex. 2001) ¶80.
`
`Prior art references such as Sampalis I (Exhibit 1012) describe the administration
`
`of krill oil to treat inflammation associated with PMS. A POSITA considering the
`
`prior art as a whole would have been discouraged from providing krill oil with the
`
`claimed levels of ether phospholipids because the POSITA would have known that
`
`ingestion of ether phospholipids presents the risk of increasing inflammation.
`
`Hoem Decl. (Ex. 2001) ¶83.
`
`More specifically, the prior art taught that dietary ether lipids such as those
`
`found in krill could, after being ingested, be converted by peroxidation after
`
`ingestion to compounds with potent inflammatory Platelet Activating Factor (PAF)
`
`activity. Hoem Decl. (Ex. 2001) ¶¶80-83. Ingestion of ether lipids, and in
`
`particular, ether phospholipids, was recognized as a potential source of
`
`inflammatory PAF activity as early as 1990. Hoem Decl. (Ex. 2001) ¶81; Blank et
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`al. (Ex. 2009) at 1001. As disclosed in the abstract of Tanaka I (Ex. 1014),
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`foodstuffs, and particularly krill, “that are rich in 1-O-alkyl-2-docosahexaenoyl-sn-
`
`glycero-3-phosphocholine are potential sources of compounds with high PAF-like
`
`activity formed by deleterious lipid peroxidation.” This continued to be a concern
`
`in the art up until the priority date of the present invention. Hoem Decl. (Ex. 2001)
`
`¶81.
`
`A POSITA at the time of the invention would have known that oral
`
`administration of supplements containing from greater than about 5% ether
`
`phospholipids presented health risks, including increasing inflammation. Hoem
`
`Decl. (Ex. 2001) ¶93. Instead, a POSITA would seek to decrease the amount of
`
`ether phospholipids in krill oil and thus would not combine references such as
`
`Catchpole and Sampalis II to arrive at a krill oil composition containing greater
`
`than about 5% ether phospholipids.
`
`C. Ground 3: Claims 8-10 are not obvious over the combination of
`
`Catchpole, Grynbaum and Randolf
`
`Ground 3 asserts that claims 8-10 are obvious the combination of Catchpole
`
`(Ex. 1009), Grynbaum (Ex. 1039) and Randolf (Ex. 101