Paper 19
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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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.: IPR2018-01730
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`U.S. Patent 9,072,752
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`Issue Date: July 7, 2015
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`Title: Bioeffective Krill Oil Compositions
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO AMEND THE CLAIMS
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`RIMFROST AS
`
`Petitioner
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`
`Patent Owner
`
`
`
`
`
`Case No.: IPR2018-01730
`
`U.S. Patent 9,072,752
`
`Issue Date: July 7, 2015
`
`Title: Bioeffective Krill Oil Compositions
`
`
`
`
`
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO AMEND THE CLAIMS
`
`
`
`
`
`
`
`
`
`
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`
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`Inter Partes Review Case No.: IPR2018-01730
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`U.S. Patent No. 9,072,752
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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`INTRODUCTION ........................................................................................... 1
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`SUBSTITUTE CLAIMS 21-29 ARE NOT PATENTABLE.......................... 1
`
`The Prior Art Describes, Discloses And Teaches Krill Oil .................. 3
`A.
`Having “From 6% To 10%” Ether Phospholipids ........................................... 3
`1.
`Catchpole Discloses and Teaches Krill Extracts Having Greater
`Than 5% and 10% Ether Phospholipids ..................................... 4
`A POSITA Could Increase the Percentage ................................. 6
`2.
`Patent Owner’s Arguments Regarding Enzymotec’s ................. 9
`3.
`Krill Oil Having 100 mg/kg To 700 mg/kg Astaxanthin Esters Is
`Expressly Disclosed In The Prior Art .................................................10
`The Prior Art Did Not Teach Away From Krill Oil ...........................13
`C.
`Having From 6% To 10% Ether Phospholipids ............................................13
`SUBSTITUTE CLAIMS 21-29 ARE OBVIOUS .........................................16
`
`B.
`
`Catchpole, Sampalis II, NKO and Randolph ......................................16
`A.
`Render Substitute Claims 21 and 24-27 Obvious .........................................16
`B.
`Catchpole, Enzymotec, Sampalis II, NKO and Randolph Render
`Substitute Claims 22-23, 25 and 28-29 Obvious ................................21
`Catchpole, Enzymotec, Sampalis II, NKO and Randolph ..................24
`C.
`Render Substitute Claims 21-29 Obvious .....................................................24
`IV. CONCLUSION ..............................................................................................25
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`i
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`Inter Partes Review Case No.: IPR2018-01730
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`I.
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`INTRODUCTION
`Patent Owner requests that the Board substitute claims 21-29 in place of
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`U.S. Patent No. 9,072,752
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`original claims 1-4, 11-14 and 20 of U.S. Patent No. 9,072,752 (“the ‘752 patent”),
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`if these original claims are found unpatentable. However, substitute claims 21-29,
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`as is true of challenged claims 1-20, simply recite krill oil having ranges of
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`phospholipids, astaxanthin esters and triglycerides that Patent Owner’s expert, Dr.
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`Hoem, acknowledged are naturally present in krill. Hoem Presentation, Exhibit
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`1080, pp. 0007-0010. Merely adding upper limits to the ranges of ether
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`phospholipids (i.e., from 6-10%) and astaxanthin esters (i.e., 100-700 mg/kg) does
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`not alter this fact or render substitute claims 21-29 patentable. Krill oil having the
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`ranges of ether phospholipids and astaxanthin esters recited in the substitute claims
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`is disclosed and taught in the prior art of record and are not patentable.
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`Accordingly, Patent Owner’s Motion to Amend (“MTA”) should be denied.
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`II.
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`SUBSTITUTE CLAIMS 21-29 ARE NOT PATENTABLE
`Patent Owner’s MTA is contingent upon finding claims 1-4, 11-14 and 20
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`unpatentable in view of the teachings of Catchpole (Exhibit 1009), Sampalis II
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`(Exhibit 1013), Enzymotec (Exhibit 1048), Randolph (Exhibit 1011) and
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`Grynbaum (Exhibit 1039). See Petition (Paper 2), 27-86. The Board is very
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`familiar with Catchpole as its disclosure and teachings formed at least one of the
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`bases for finding all claims of U.S. Patent Nos. 9,320,765 (“the ‘765 patent”),
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`Inter Partes Review Case No.: IPR2018-01730
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`U.S. Patent No. 9,072,752
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`9,028,877 (“the ‘877 patent”) and 9,078,905 (“the ‘905 patent”) unpatentable:
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`IPR2018-00295, Final Written Decision (Paper 35) (“-295 FWD”) (Exhibit 1129);
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`IPR2017-00746, Final Written Decision (Paper 23) (“-746 FWD”) (Exhibit 1104);
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`IPR2017-00745, Final Written Decision (Paper 24) (“-745 FWD”) (Exhibit 1103).1
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`Since “the Board determines whether substitute claims are unpatentable by a
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`preponderance of the evidence based on the entirety of the record, including any
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`opposition made by petitioner,” Lectrosonics, Inc. v. Zaxcom, Inc., IPR2018-
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`01129, Paper 15, p. 4 (Feb. 25, 2019), Petitioner only addresses the amended ether
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`phospholipids and astaxanthin ester upper limits Patent Owner seeks to add. All
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`remaining claim limitations were addressed in the Petition. Petition, 27-86; see,
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`e.g., Tallon Decl. (Exhibit 1006), ¶¶ 421-500, Appendix A.
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`In an attempt to support the patentability of the substitute claims, Patent
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`Owner offers three unpersuasive arguments, two of which were previously
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`litigated, fully considered and expressly rejected by the Board in IPR2018-00295.
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`First, ignoring Catchpole’s disclosure and the Board’s prior findings in
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`IPR2018-00295, Patent Owner again erroneously maintains that Catchpole does
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`not describe or teach krill oil having 6-10% ether phospholipids. MTA, 12-16.
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`1 The ‘752, ‘765, ‘877 and ‘905 patents are in the same family, share the same
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`specification and priority date.
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`2
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`U.S. Patent No. 9,072,752
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`Second, Patent Owner again argues that the prior art fails to disclose krill oil
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`having 100-700 mg/kg astaxanthin esters. MTA, 17-18. However, the Board
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`rejected this same argument in IPR2018-00295 when Patent Owner tried to add the
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`identical astaxanthin esters limitation to claims of the ‘765 patent, finding instead
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`that Randolph teaches krill oil compositions with levels of astaxanthin esters
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`satisfying the proposed 100-700 mg/kg limitation. -295 FWD, 67-68.
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`Third, Patent Owner again urges that alleged Platelet Activating Factor
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`(“PAF”) concerns teach away from krill oil with enhanced levels of ether
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`phospholipids. MTA, 19-20. The Board, however, rejected this same argument on
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`three prior occasions. -295 FWD, 39-47; -746 FWD, 53-61; -745 FWD, 29-38.
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`A. The Prior Art Describes, Discloses And Teaches Krill Oil
`Having “From 6% To 10%” Ether Phospholipids
`Patent Owner seeks to dismiss the import of Catchpole’s disclosure of
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`extracts having greater than 5% and 10% ether phospholipids by proffering three
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`unavailing arguments: a POSITA (1) would not have understood that Catchpole’s
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`disclosure of extracts having greater than 5% or 10% acylalkyphospholipids “apply
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`to krill oil;” (2) could not increase the percentage of ether phospholipids in Extract
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`2 beyond 4.8% because all neutral lipids were purportedly removed during the
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`initial extraction of Example 18; and (3) would not use Catchpole to ascertain the
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`ether phospholipids content of Enzymotec’s Grade B krill extract. See MTA, 13-
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`16. Each of these arguments not only ignore the scope of Catchpole’s disclosure,
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`U.S. Patent No. 9,072,752
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`they also overlook the Board’s previous findings regarding Catchpole.
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`1.
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`Catchpole Discloses and Teaches Krill Extracts Having
`Greater Than 5% and 10% Ether Phospholipids
`Patent Owner observes that “Catchpole teaches feed materials from a
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`virtually unlimited number of organisms,” and then superficially argues, “there is
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`no reason for a POSITA to conclude that the statements in Catchpole referring to
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`compositions containing greater than 5% or 10% acylalkyphospholipids . . . apply
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`to krill oil.” MTA, 13-14. Consistent with the full scope of Catchpole’s
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`disclosure, as well as the Board’s prior findings, Catchpole discloses krill extracts
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`having greater than 5% and 10% ether phospholipids (i.e., acylalkyphospholipids).
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`The extracts recited in Catchpole exhibit a variety of health benefits and
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`have “high levels of particular phospholipids.” Exhibit 1009, p. 0001, line 29 - p.
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`0002, line 2; p. 0025, lines 9-13. To obtain these extracts, Catchpole discloses
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`methods for separating lipid materials from various natural feedstock materials,
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`including marine animals. See, e.g., id., p. 0005, lines 5-7. Describing preferable
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`percentages of ether phospholipids, Catchpole states:
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`More preferably the product comprises greater than 5% acylalky-
`phospholipids. . . . Even more preferably the product comprises
`greater than 10% acylalkyphospholipids . . . . Id., p. 0009, lines 18-21.
`Catchpole also states that extracts having greater than 5% and 10% ether
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`phospholipids can be obtained using a feed material having at least 0.3% ether
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`phospholipids. Id., p. 0005, line 20; Tallon Reply/Opp. (Exhibit 1086), ¶¶ 18-31;
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`see Hoem Deposition (Exhibit 1145), 84:14-22. Notably, Example 18 provides a
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`specific example of a marine animal (i.e., krill) with a requisite level of ether
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`phospholipids (0.6% AAPC + 0.1% AAPE). Id., p. 0024, lines 1-19. Finally,
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`Catchpole teaches that changing process conditions influences the constituents
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`extracted and the extract’s purity. Id., p. 0012, lines 1-3; p. 0011, lines 11-17. For
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`example, Catchpole states that co-solvent concentrations of at least 20% will
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`increase the percentage of extracted phospholipids, such as phosphatidylcholine.
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`Id., p. 0012, lines 13-17; p. 0018, line 1 - p. 0019, line 3. Consistent with this
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`disclosure, the ‘752 patent reports that 23% ethanol co-solvent results in a krill
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`extract having 7.8% ether phospholipids. Exhibit 1001, 31:14-25, 32:19-40.
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`Based on Catchpole, a POSITA desiring an extract with 6% to 10% ether
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`phospholipids would have selected one of the three marine animals, such as krill,
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`in Example 18 and applied Catchpole’s recited extraction methodology. See, e.g.,
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`Exhibit 1009, p. 0027, lines 10-19, p. 0031, lines 11-13; p. 0035, lines 11-14;
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`Tallon Reply/Opp. (Exhibit 1086), ¶¶ 12-50; Hoem Deposition (Exhibit 1145),
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`84:4-22; see 78:20-86:19.
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`In fact, the Board found that based on Catchpole it would be “desirable to
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`prepare” “a krill oil composition having in excess of 5% ether phospholipids” and
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`that “one skilled in the art would have been able to create such a composition using
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`conventional extraction techniques.” -295 FWD, 50. Further, addressing the scope
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`of Catchpole’s disclosure, the Board concluded:
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`Given the overall teachings of Catchpole that an acylalky-
`phospholipid level of greater than 5% is preferred and the
`teaching of a specific example adjacent to the claimed range,
`we conclude that it would have been obvious to prepare a
`krill oil composition having from greater than 5% to 8%
`ether phospholipids. -295 FWD, 65 (emphasis added).
`In sum, a POSITA would have understood that Catchpole discloses krill oil
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`with 6% to 10% ether phospholipids. Tallon Reply/Opp. (Exhibit 1086), ¶ 50.
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`2.
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`A POSITA Could Increase the Percentage
`of Ether Phospholipids in Extract 2
`Patent Owner incorrectly assumes that all neutral lipids/triglycerides were
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`removed during Example 18’s initial extraction, because Catchpole reports that
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`Extract 2 contained a “highly enriched” amount of AAPC. Based upon this false
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`predicate, Patent Owner argues that it would not be possible for a POSITA to
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`increase Extract 2’s percentage of ether phospholipids beyond 4.8% because there
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`were no more neutral lipids/triglycerides to remove. MTA, 14. Patent Owner’s
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`argument fails for several reasons.
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`First, Patent Owner’s assertion that there were no remaining triglycerides in
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`Extract 2 to remove is wrong. For example, agreeing with Dr. Tallon, the Board
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`determined that the 53.7 % “other compounds” of Extract 2 contained a significant
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`amount of neutral lipids. -295 FWD, 37; Tallon Reply/Opp. (Exhibit 1086), ¶¶ 56,
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`63-80, 81-105. In fact, even Patent Owner’s expert conceded that Extract 2
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`contained neutral lipids. Hoem Deposition (Exhibit 1145), 150:16-151:25. Thus, a
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`POSITA desiring to increase the percentage of ether phospholipids in Extract 2,
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`could have been simply removed a portion of the 53.7% “other compounds.” See
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`Tallon Reply/Opp. (Exhibit 1086), ¶ 92.
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`Patent Owner’s contention that the percentage of ether phospholipids could
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`not be increased is also refuted by Catchpole’s express disclosure that extraction
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`conditions (i.e., duration, temperature, pressure, solvents, and solvent
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`concentration) could be varied depending upon the desired extract composition and
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`purity. Exhibit 1009, p. 0011, lines 11-17; p. 0012, lines 1-3; p. 0012, lines 13-17;
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`Tallon Reply/Opp. (Exhibit 1086), ¶¶ 33-40, 42-46. For example, Examples 7 and
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`8 of Catchpole illustrate that by increasing the concentration of the polar co-
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`solvent (i.e., ethanol), the percentage of phospholipids in the resulting extract
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`increased. Id., p. 0018, line 1 - p. 0019, line 3; Tallon Reply/Opp.,¶57.
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`Furthermore, in IPR2018-00295, the Board concluded:
`
`an ordinarily skilled artisan would have understood Catchpole
`as teaching that a CO2 extraction step can be used to vary the
`neutral lipid composition of the extract. Our finding is
`supported by Catchpole’s express disclosure that “[t]he feed
`material can be processed using pure CO2 before the co-solvent
`is introduced to remove much or all of neutral lipids,” thereby
`enriching soluble phospholipid content. -295 FWD, 37.
`Crediting Dr. Tallon’s testimony, the Board also noted that “the relative
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`proportions of krill oil constituents could be varied in predictable ways by
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`applying a single solvent or combination of solvents including supercritical fluid
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`extraction to selectively extract specific groups of lipid components . . . .” -295
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`FWD, 37 (emphasis added); see Tallon Reply/Opp. (Exhibit 1086), ¶ 311.
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`Finally, there is no question that a POSITA would have a reasonable
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`expectation of success of obtaining a krill oil having from 6% to 10% ether
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`phospholipids, as it cannot be disputed that a POSITA could blend various lipid
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`fractions to obtain a desired krill oil composition and would have been motivated
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`to do so. Tallon Decl.,¶¶49,99,257,450; Tallon Reply/Opp.,¶¶42-49,311,312.
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`Importantly, the ‘752 patent teaches that the krill oil compositions can comprise a
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`blend of lipid fractions. Exhibit 1001, 2:62-63; 5:39-48; 12:3-36. Notably,
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`however, the ‘752 patent provides no guidance regarding blending, but instead
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`relies on a POSITA’s skill. See -295 FWD, 39. In fact, the Board previously
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`found that “blending methods were well known in the art,” and agreed with Dr.
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`Tallon that “one skilled in the art would have understood how to achieve the
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`desired levels of components by selectively extracting the different
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`components and blending the extracts in ‘known and predictable ways to
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`produce a desired krill oil composition.’”
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`-295 FWD, 34, 38-39 (emphasis added).
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`Consequently, Patent Owner’s argument that “a POSITA would not seek to
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`modify Catchpole to obtain krill oil having 6-10% ether phospholipids,” MTA, 14-
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`15, is refuted by the express teachings of Catchpole and the Board’s prior findings.
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`U.S. Patent No. 9,072,752
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`3.
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`Patent Owner’s Arguments Regarding Enzymotec’s
`Grade B Krill Extract Are Inapposite
`Enzymotec is a Notice submitted to the FDA requesting a GRAS exemption
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`for the use of krill-based lecithin extracts.2 One of the extracts subject to the
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`Notice, Grade B krill extract, has, inter alia, 60.2-82.5% phosphatidylcholine and
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`less than 25% triglycerides. Exhibit 1048, p. 53. Dr. Tallon testified that the
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`Grade B krill extract also contained 8.0-9.7% ether phospholipids. Tallon Decl.
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`(Exhibit 1006), ¶¶ 242, 462; Tallon Reply/Opp. (Exhibit 1086), ¶ 61. Patent
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`Owner urges that Catchpole cannot be used to ascertain the ether phospholipids in
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`Enzymotec’s krill extract, and thus there “is no motivation to combine Catchpole
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`and Enzymotec to provide a krill oil with from 60 [sic] to 10% ether
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`phospholipids” because Catchpole and Enzymotec purportedly use “different
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`extraction conditions” that resulted in “different extracts with different lipid
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`profiles.” MTA, 15-16. Patent Owner’s assertion is unremarkable and simply
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`confirms what was known by a POSITA; extraction conditions could be modified
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`as taught by Catchpole to change the composition and purity of the resulting
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`extract. See, e.g., -295 FWD, 37; Catchpole (Exhibit 1009), p. 0011, lines 11-18;
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`p. 0012, lines 1-3, 13-17; p. 0018, line 1 - p. 0019, line 3; Tallon Reply/Opp.
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`(Exhibit 1086), ¶¶ 35-40. Notably, Patent Owner’s expert testified that solvents
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`2 Patent Owner does not dispute that Enzymotec was publically accessible and is
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`prior art to the ‘752 patent. See, e.g., Petition, 9-13.
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`that extract phospholipids would similarly extract ether phospholipids. Hoem
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`Deposition (Exhibit 1145), 87:2-12, 88:17-19, 88:20-24, 89:16-18.
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`Further, focusing on the processes used by Catchpole and Enzymotec, Patent
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`Owner ignores that substitute claims 21-29 recite lipid fractions having broad
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`ranges of components naturally present in krill (e.g., 6-10% ether phospholipids,
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`greater than about 40% phosphatidylcholine and 100-700 mg/kg astaxanthin
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`esters), and do NOT claim:
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`•
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`•
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`•
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`a unique krill oil extraction process;
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`a product-by-process claim to obtain a specific krill oil composition; or
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`a single novel krill oil composition.
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`Consequently, the processes described by Catchpole and Enzymotec are not
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`inconsistent, and both necessarily provide polar krill oil compositions with high
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`levels of phospholipids and ether phospholipids. See Hoem Dep. 87:2-89:18
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`(Exhibit 1145).
`
`B. Krill Oil Having 100 mg/kg To 700 mg/kg Astaxanthin
`Esters Is Expressly Disclosed In The Prior Art
`Replacing “greater than about 100 mg/kg” with “from 100 mg/kg to 700
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`mg/kg astaxanthin esters,” Patent Owner offers the same unpersuasive argument
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`rejected in IPR2018-00295. MTA, 17-18. Specifically, the Board concluded that
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`“it would have been obvious to one of ordinary skill in the art to prepare a krill oil
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`composition having from greater than 100 mg/kg to 700 mg/kg astaxanthin esters,”
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`and acknowledged Dr. Tallon’s testimony that Randolph describes compositions
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`with about 300 mg to about 3000 mg krill oil and at least 158 mg/kg of astaxanthin
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`esters. -295 FWD, 67-68; see Tallon Reply/Opp. (Exhibit 1086), ¶¶ 250-256.
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`Patent Owner should be estopped from again arguing prior art does not disclose
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`krill oil with 100-700 mg/kg astaxanthin esters.
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`Randolph discloses compositions for modulating cytokines to regulate an
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`inflammatory response which can include krill oil and at least one type of
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`xanthophyll (e.g., astaxanthin). Exhibit 1011, Abstract, p. 0001, ¶ 0021; see Tallon
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`Decl., (Exhibit 1006) ¶¶ 273-275. Randolph acknowledges, “[k]rill oil can be
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`obtained from . . . Euphausia superba and can be obtained commercially from
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`Neptune.” Exhibit 1011, ¶ 0039. Randolph expressly teaches compositions
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`containing “between about 0.5 mg and about 50 mg” of astaxanthin, and that the
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`compositions can contain “between about 300 mg and about 3000 mg [0.003 kg]”
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`of krill oil. Id., ¶¶ 0040, 0044 (emphasis added). Using this disclosure, Dr. Tallon
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`calculated that Randolph discloses krill oil compositions having 167 mg/kg of
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`astaxanthin (i.e., 0.5 mg/0.003 kg), which is equivalent to 158 mg/kg astaxanthin
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`esters. The Board relied on his calculation in finding that Randolph teaches
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`astaxanthin esters amounts that overlap with the 100-700 mg/kg level of the
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`substitute claims -295 FWD, 67-68; Tallon Reply/Opp. (Exhibit 1086), ¶¶ 250-
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`256; see Tallon Deposition (Exhibit 2020), 154:18-155:10. Randolph also notes
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`that the recited krill oil compositions can be encapsulated. Exhibit 1011, ¶ 0052.
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`Also, Sampalis II discloses phospholipid extracts from natural marine
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`sources, with Euphausia superba identified as the preferred source, can be used as
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`nutraceuticals. Exhibit 1013, p. 0003, lines 9-12, p. 0027, lines 1-10. Sampalis II
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`also describes krill oil having at least 20 mg/100 ml (i.e., 200 mg/kg astaxanthin
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`and 190 mg/kg astaxanthin esters). Id., p. 0030, lines 1-7; Tallon Reply/Opp.,
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`(Exhibit 1086) ¶¶ 257-261; see Hoem Deposition (Exhibit 1128), 207:13-209:9.
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`Finally, Neptune’s NKO krill oil product was available in different
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`formulations. Tallon Reply/Opp. (Exhibit 1086), ¶ 265. Table 16 of the ‘752
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`patent reports that one particular NKO formulation contained 472 mg/kg
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`astaxanthin esters. Exhibit 1001, 27:50-59. In fact, Patent Owner admitted that
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`this particular NKO product was the “closest prior art.” Exhibit 1002, p. 36;
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`Exhibit 1004, p. 34; Exhibit 1005, p. 36.
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`To be clear, Petitioner does not contend that every commercial NKO
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`formulation inherently possessed 472 mg/kg astaxanthin esters. Rather, the
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`proposed astaxanthin esters limitation is satisfied by the specific NKO
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`formulation that Patent Owner admitted (1) had 472 mg/kg astaxanthin esters;
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`and (2) was the “closest prior art.” These admissions are sufficient to form the
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`bases for finding substitute claims 21-29 obvious. Pharmastem Therapeutics v.
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`Viacell, 491 F.3d 1342, 1362 (Fed. Cir. 2007) (“Admissions in the specification
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`regarding the prior art are binding on the patentee for purposes of a later inquiry
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`into obviousness.”); In re Nomiya, 509 F.2d 566, 570-71 (CCPA 1975) (“We see
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`no reason why [patentee’s] representations in their [specification] should not be
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`accepted at face value as admissions that . . . may be considered ‘prior art’ for any
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`purpose, including use as evidence of obviousness under § 103. . . .”).
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`Patent Owner also urges that the prior art teaches away from astaxanthin
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`ester levels of 100-700 mg/kg because higher levels of astaxanthin provide
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`enhanced antioxidant properties. MTA, 18. This argument is unavailing as Dr.
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`Tallon testified there were many reasons to increase or decease the astaxanthin
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`level. Tallon Reply/Opp. (Exhibit 1086), ¶¶ 262-264, 312. Further, disclosure of a
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`preferred or optimal amount is not “teaching away.” See Galderma Labs. v.
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`Tolmor, Inc., 737 F.3d 731, 739 (Fed. Cir. 2013) (“teaching that a composition
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`may be optimal” does not teach away).
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`C. The Prior Art Did Not Teach Away From Krill Oil
`Having From 6% To 10% Ether Phospholipids
`In what is now its fourth attempt, Patent Owner again tries to convince the
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`Board that PAF concerns teach away from krill oil having enhanced levels of ether
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`phospholipids. MTA, 19-20. Patent Owner’s current rendition of its “PAF
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`teaching away” argument offers nothing that has not already been fully considered
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`and expressly rejected by the Board. See, e.g., -295 FWD, 39-47; -746 FWD, 53-
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`61; -745 FWD, 29-38. Patent Owner should be estopped from revisiting its thrice-
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`13
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`U.S. Patent No. 9,072,752
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`rejected “PAF teaching away” argument.3
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`Tanaka I states the identified foodstuffs, including krill, are only “potential
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`sources of compounds with high PAF-like activity,” and “[t]he occurrence of PAF-
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`like lipids in some stored foods is still speculative and requires further
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`investigation.” Exhibit 1014, pp. 0001, 0005; see -295 FWD, 25-26, 44; Tallon
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`Decl., (Exhibit 1006) ¶¶ 111-113, 118; Tallon Reply/Opp. (Exhibit 1086), ¶¶ 138-
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`145, 150, 152-153 Tanaka’s speculation and call for “further investigation” does
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`not teach away from krill oil having 4-8% ether phospholipids.
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`Blank relates to dietary diacylphospholipids, not krill ether phospholipids.
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`See, e.g., -295 FWD, 25. In fact, Blank was unable to draw any conclusion
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`regarding the formation of PAF. Exhibit 2009, pp. 5-6 (“the production of, and
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`subsequent biological responses induced by PAF, in humans are presently
`
`unknown”); see Tallon Reply/Opp., (Exhibit 1086) ¶¶ 160-166.
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`Each remaining PAF reference cited by Dr. Hoem, Exhibit 2001, ¶ 81, is
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`also not new to the Board and fares no better. For example, Prescott (Exhibit
`
`2003) teaches that ether phospholipids having longer acyl groups, such as those
`
`present in krill and krill oil, would not exhibit PAF activity. Tallon Reply/Opp.
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`3 Patent Owner has also relied on its “PAF teaching away” argument in IPR2018-
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`01178 and IPR 2018-01179 scheduled for oral argument on October 16, 2019.
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`14
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`(Exhibit 1086), ¶¶ 148-149; see-295 FWD, 43-45, 47; -746 FWD, 57-58; -745
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`FWD, 34-36, 38. Hartvigsen (Exhibit 2010) describes only the peroxidation of
`
`diacylglycerol ethers (“DAGE”) which is also not an ether phospholipid. Tallon
`
`Reply/Opp. (Exhibit 1086) ¶¶ 167-168; see -295 FWD, 24-25. Zierenberg (Exhibit
`
`2008) relates to diacylphosphatidylacholine which is not an ether phospholipid.
`
`Tallon Reply/Opp. (Exhibit 1086), ¶ 154; see -295 FWD, 44-45. Lastly, Marathe
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`focuses on short-chained C4 analogs and homologs, and “actually teaches that the
`
`ether phospholipids in krill oil would not act like PAF molecules.” Exhibit 1094,
`
`pp. 0001, 0007; see Tallon Reply/Opp. (Exhibit 1086), ¶¶ 130-131; -295 FWD, 45.
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`“Commercial realities” also demonstrate that Patent Owner’s PAF concerns
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`are baseless. See, e.g., -295 FWD, 46-47; -746 FWD, 60-61; -745 FWD, 26-37. In
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`representing that its “high phospholipid krill oil” was safe, Patent Owner’s GRAS
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`Notice expressly relied on two studies involving the administration of high dosages
`
`of NKO krill oil (i.e., Sampalis I (Exhibit 1012) “suggest[s] that krill oil softgels
`
`were well tolerated;” Bunea (Exhibit 1020) reports “no averse effects”), but never
`
`informed the FDA that there were any PAF concerns associated with krill oil.
`
`Exhibit 1089, pp. 0019-0020; see McQuate Decl. (Exhibit 1150), ¶¶ 14-15, 81-83,
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`87-95; Tallon Reply/Opp. (Exhibit 1086), ¶¶ 170-174, 201-210; FWD, 46; -746
`
`FWD, 60; -745 FWD, 37; see Exhibit 1090, 58:10-20; 54:16-55:10; see Tallon
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`Reply/Opp. (Exhibit 1086), ¶¶ 190-200.
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`III. SUBSTITUTE CLAIMS 21-29 ARE OBVIOUS
`Catchpole, Sampalis II, NKO and Randolph in combination with the
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`Grounds and analysis that renders claims 1, 4 and 11-13 unpatentable also applies
`
`to substitute claims 21 and 24-27. Catchpole, Enzymotec, Sampalis II, NKO and
`
`Randolph in combination with the Grounds and analysis that renders claims 1-3,
`
`11, 14 and 20 unpatentable also applies to substitute claims 22-23, 25 and 28-29.
`
`Finally, Catchpole, Enzymotec, Sampalis II, NKO and Randolph in combination
`
`with the Grounds and analysis that renders claims 1-4, 11-14 and 20 unpatentable
`
`also applies to all substitute claims.
`
`A. Catchpole, Sampalis II, NKO and Randolph
`Render Substitute Claims 21 and 24-27 Obvious
`Catchpole teaches that phospholipids are associated with a number of health
`
`benefits, and states that an object of the invention is to produce products that
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`contains desirable levels of particular phospholipids. Exhibit 1009, p. 0001, line
`
`11 - p. 0002, line 2, p. 0003, lines 27-29. Example 18 describes a krill extract
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`having at least 4.8% ether phospholipids and 39.8% phosphatidylcholine. Id., p.
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`0024, lines 1-19. Catchpole further discloses that the level of ether phospholipids
`
`is “more preferably” and “even more preferably” greater than 5% and 10%,
`
`respectively. Id., p. 0009, lines 18-21. Catchpole also teaches that varying
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`extraction conditions influences the composition and purity of the resulting extract.
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`Id., p. 0011, lines 11-18, p. 0012, lines 1-3; Tallon Decl. (Exhibit 1006), ¶¶ 220-
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`16
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`222. For example, increasing the polar solvent concentration increases the
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`percentage of phospholipids extracted. Exhibit 1009, p. 0012, lines 13-17; p. 0018,
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`line 1 - p. 0019, line 4; supra, p. 5; see Tallon Reply/Opp. (Exhibit 1086), ¶ 39.
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`Sampalis II discloses phospholipid compositions, extracted from natural
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`marine sources, such as Euphausia superba, that can be used for nutraceuticals.
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`Exhibit 1013, p. 0003, lines 9-12, p. 0027, lines 1-10. Sampalis II also reports that
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`“[p]olyunsaturated fatty acids, in particular omega-3 fatty acids . . . even more
`
`preferably [make up] at least 45% w/w, of the total lipids in the extract” so that the
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`omega-3 fatty acids by weight of fatty acids is greater than 45%. Id., p. 0030, lines
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`5-14; see Tallon Decl. (Exhibit 1006), ¶¶ 293-297. It is also noted, “DHA and
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`EPA are the two most active polyunsaturated fatty acids in the human body,
`
`contributing to all health benefits associated with omega-3 fatty acids.” Exhibit
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`1013, p. 0036, lines 16-18. The health benefits associated with omega-3 fatty
`
`acids, particularly in connection with cardiovascular disease, were also well
`
`established. See, e.g., Bunea (Exhibit 1020), pp. 0001-0002; Tallon (Exhibit
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`1006), ¶¶ 80-81, 88, 334. Sampalis II also describes krill extracts having at least
`
`20 mg/100 ml (i.e., 200 mg/kg astaxanthin and 190 mg/kg astaxanthin esters).
`
`Exhibit 1013, p. 0030, lines 1-7; see Tallon Reply/Opp. (Exhibit 1086), ¶¶ 257-
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`259; Hoem Deposition (Exhibit 1128), 207:13-209:9. Similarly, Sampalis II
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`discloses krill extracts in a capsule dosage form suitable for oral administration.
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`Exhibit 1013, p. 0036, line 27 - p. 0037, line 16.
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`Patent Owner also admits that a particular prior art NKO krill oil
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`formulation contained 472 mg/kg astaxanthin esters. Supra, pp. 12-13; Tallon
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`Reply/Opp. (Exhibit 1086), ¶¶ 247-249, 265.
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`Randolph discloses compositions for regulating inflammatory response that
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`can include krill oil and xanthophyll (e.g., astaxanthin). Exhibit 1011, Abstract, p.
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`0001; see p. 0004, ¶ 0021. Randolph notes, “[k]rill oil can be obtained from any
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`member of the Euphausia family, for example Euphausia superba. Conventional
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`oil producing techniques can be used to obtain the krill oil. Krill oil can also be
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`obtained commercially from Neptune. . . .” Id., p. 0006, ¶ 0039. Randolph further
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`describes compositions having about 300 mg to about 3000 mg krill oil and at least
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`158 mg/kg of astaxanthin esters. Id., p. 0006, ¶¶ 0040, 0044; supra, pp. 11-12; see
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`-295 FWD, 67-68. Randolph also discloses that the recited krill oil can be
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`encapsulated. Exhibit 1011, p. 0007, ¶ 0052.
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`Contrary to Patent Owner’s arguments, the preponderance of evidence
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`demonstrates that substitute claims 21 and 24-27 would have been obvious. In
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`particular, a POSITA would have understood that phospholipids and its attendant
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`phosphatidylcholine and ether phosphatidylcholine sub-components, as well as
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`astaxanthin esters, were naturally present in krill, and could be readily extracted
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`within predictable and known ranges using conventional techniques and solvent
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`systems and a POSITA would have had a reasonable expectation of doing so.
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`Tallon Decl. (Exhibit 1006), ¶¶ 49, 97, 488, 499; Tallon Reply/Opp. (Exhibit
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`1086), ¶¶ 55, 310-311. It was also well known that the process conditions of
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`conventional extraction techniques (e.g., duration, temperature, pressure, solvents
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`and solvent concentration) could be readily modified to achieve predictable
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`changes in the composition and purity of the resulting krill oil, and that increasing
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`the polar solvent concentration, increases the percentage of phospholipids in the
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`resulting extract. See, e
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