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`Paper 18
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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 REPLY TO PATENT OWNER’S RESPONSE
`PURSUANT TO 37 C.F.R. § 42.23 (b)
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`Inter Partes Review Case No.: IPR2018-01730
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`TABLE OF CONTENTS
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`U.S. Patent No. 9,072,752
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`I.
`II.
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`2.
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`INTRODUCTION ........................................................................................... 1
`COLLATERAL ESTOPPEL PRECLUDES PATENT OWNER FROM
`ADVANCING THE SAME PATENTABILITY ARGUMENTS
`REJECTED IN IPR2018-00295, IPR2017-00746 AND IPR2017-00745 ...... 4
`III. CLAIMS 1-20 ARE UNPATENTABLE ........................................................ 5
`A.
`Claims 1, 5-6 And 11 Are Anticipated By Catchpole ........................... 5
`1.
`Properly Construed, “Greater Than About 5%” Means “Greater
`Than 4.5 %” Ether Phospholipids ............................................... 5
`Catchpole Describes Krill Extracts Having Greater Than 5%,
`6% and 7% Ether Phospholipids ................................................. 6
`Claims 4, 7 And 12-13 Would Have Been ............................................ 9
`B.
`Obvious Based On Catchpole and Sampalis II ................................................ 9
`1.
`Catchpole Expressly Discloses Krill Extracts Having “Greater
`Than About 5%” Ether Phospholipids ......................................10
`A POSITA Could Readily Increase Extract 2’s .......................10
`2.
`Percentage of Ether Phospholipids ......................................................10
`3.
`Patent Owner’s Argument That PAF Concerns Teach Away
`From Polar Krill Oil Having Greater Than About 5% Ether
`Phospholipids Lacks Merit .......................................................12
`Claims 8-10 Would Have Been Obvious Based On ...........................16
`C.
`Catchpole, Grynbaum and Randolph ............................................................16
`D.
`Claims 1-3, 5-6 And 11 Would Have Been ........................................18
`Obvious Based On Catchpole And Enzymotec .............................................18
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`Inter Partes Review Case No.: IPR2018-01730
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`1.
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`U.S. Patent No. 9,072,752
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`E.
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`Catchpole Discloses Krill Oil Having “Greater Than About”
`5%, 6% And 7% Ether Phospholipids ......................................19
`A POSITA Would Have Possessed a Reasonable Expectation
`Of Obtaining Krill Oil Having Greater Than About 5%, 6% or
`7% Ether Phospholipids ............................................................20
`Catchpole, Enzymotec And Sampalis II Render Claims 14-16 And 20
`Obvious................................................................................................24
`Catchpole, Enzymotec, Sampalis II, Grynbaum And Randolph Render
`Claims 17-19 Obvious .........................................................................25
`IV. CONCLUSION ..............................................................................................27
`V.
`CERTIFICATE OF COMPLIANCE ............................................................28
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`F.
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`2.
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`ii
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`Inter Partes Review Case No.: IPR2018-01730
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`I.
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`INTRODUCTION
`Patent Owner’s Response (Paper 13) (“POR”) proffers four meritless
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`U.S. Patent No. 9,072,752
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`arguments in an attempt to demonstrate that challenged claims 1-20 of U.S. Patent
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`No. 9,072,752 (“the ‘752 patent”) are not unpatentable.
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`First, ignoring the Board’s prior construction of the phrase “greater than
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`about 5%” ether phospholipids and Catchpole’s express disclosure of extracts
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`containing greater than 5% and 10% ether phospholipids, Patent Owner
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`erroneously contends that the prior art does not describe, disclose and/or teach krill
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`oil having greater than 5%, 6% and 7% ether phospholipids.
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`Second, ignoring the fact that the challenged claims recite polar krill oil, not
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`methods of producing krill oil, and that it was known that lipid fractions could be
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`easily blended, Patent Owner mistakenly urges that a POSITA would not have
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`combined the teachings of Catchpole and Enzymotec; Enzymotec’s krill oil simply
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`being the logical extension of the teachings in Catchpole.
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`Third, ignoring teachings that the percentage of phospholipids extracted
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`could be increased by simply changing process conditions, Patent Owner
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`incorrectly posits that, because all neutral lipids were purportedly removed during
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`the initial extraction described in Example 18, a POSITA would have understood
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`that Extract 2’s percentage of ether phospholipids could not be increased beyond
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`4.8%.
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`U.S. Patent No. 9,072,752
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`Fourth, ignoring the Board’s rejection of Patent Owner’s “PAF teaching
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`away” argument on three previous occasions, Patent Owner again argues that a
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`POSITA would have limited the percentage of ether phospholipids because of
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`concerns about PAF.
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`If the first and fourth arguments look familiar, they should - - Patent Owner
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`proffered these same arguments in one or more of the following “krill IPRs”:
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`IPR2018-00295; IPR2017-00746, IPR2017-00745.1 In those proceedings, Patent
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`Owner’s “claim construction” and its “PAF teaching away” arguments were
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`rejected in three Final Written Decisions finding every claim of U.S. Patent Nos.
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`9,320,765 (“the ‘765 patent”), 9,029,877 (“the ‘877 patent”) and 9,078,905 (“the
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`‘905 patent”) unpatentable. See e.g., IPR2018-00295, Final Written Decision
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`(Paper 35) (“-295 FWD”) (Exhibit 1129); IPR2017-00746, Final Written Decision
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`(Paper 23) (“-746 FWD”) (Exhibit 1104); IPR2017-00745, Final Written Decision
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`(Paper 24) (“-745 FWD”) (Exhibit 1103).
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`Challenged claims 1-20 recite an almost limitless number of krill oils having
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`broad ranges of components present in krill (e.g., “greater than about 5%” ether
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`phospholipids, “greater than about” 40% phosphatidylcholine, less than about 20%
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`1 Patent Owner makes these same arguments in IPR2018-01178 and IPR2018-
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`01179, both scheduled for oral argument on October 16, 2019.
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`2
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`triglycerides and greater than about 1000 mg/kg of astaxanthin esters). The
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`U.S. Patent No. 9,072,752
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`preponderance of evidence demonstrates that the challenged claims are
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`unpatentable, because, inter alia, a POSITA would have:
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`•
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`known that phospholipids and its attendant phosphatidylcholine and
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`ether phospholipid sub-components, as well as triglycerides and
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`astaxanthin esters, were naturally present in krill, and could be
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`extracted within predictable and known ranges using conventional
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`extraction techniques;
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`•
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`understood that the process conditions of these known extraction
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`techniques (e.g., duration, temperature, pressure, solvents, solvent
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`concentration) could be modified to obtain predictable changes in the
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`composition and concentration of the resulting krill oil;
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`•
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`recognized that different neutral and polar lipid fractions could be
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`blended to obtain krill oil having specific and desired levels of ether
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`phospholipids, phosphatidylcholine, triglycerides and astaxanthin
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`esters; and
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`•
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`been motivated to formulate krill oil for oral administration containing
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`greater than about 5% ether phospholipids because of known health
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`benefits associated with high levels of phospholipids and
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`accompanying ether phospholipids and associated omega-3 fatty acids.
`3
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`Challenged claim 1-20 of the ‘752 patent are unpatentable.2
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`U.S. Patent No. 9,072,752
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`II. COLLATERAL ESTOPPEL PRECLUDES PATENT OWNER
`FROM ADVANCING THE SAME PATENTABILITY ARGUMENTS
`REJECTED IN IPR2018-00295, IPR2017-00746 AND IPR2017-00745
`Collateral estoppel “protects a party from having to litigate issues that have
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`been fully and fairly tried in a previous action and adversely resolved against a
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`party-opponent.” Ohio Willow Wood Co. v. Alps South, LLC, 735 F.3d 1333, 1342
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`(Fed. Cir. 2013).
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`The challenged claims of the ‘752 patent and the claims of the ‘765, ‘877
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`and ‘905 patents recite krill oil with materially identical ranges of ether
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`phospholipids, phosphatidylcholine and astaxanthin.3 Additionally, the Board is
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`very familiar with the prior art (e.g., Catchpole, Sampalis II, and Randolph)
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`demonstrating that the challenged claims of the ‘752 patent are unpatentable
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`because some of these same references were previously relied upon in finding all
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`claims of the ‘765, ‘877 and ‘905 patents unpatentable. Given the substantially
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`2 Petitioner relies on its Petition (Paper 2), Tallon Decl. (Exhibit 1006), Tallon
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`Reply/Opp. (Exhibit 1086), McQuate Decl. (Exhibit 1044), Kapoor Decl. (Exhibit
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`1045), and McQuate Decl. (Exhibit 1150).
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`3 The ‘752, ’765, ‘877 and ‘905 patents are in the same patent family and share the
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`same specification and priority date.
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`identical claim limitations and same references, the Board’s prior factual findings
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`U.S. Patent No. 9,072,752
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`and conclusions of law in -295 FWD,-746 FWD and -745 FWD regarding, inter
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`alia, the teachings of the prior art, the motivation to combine those teachings, and
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`its previous claim construction ruling should be given preclusive effect.
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`III. CLAIMS 1-20 ARE UNPATENTABLE
`A. Claims 1, 5-6 And 11 Are Anticipated By Catchpole
`Properly Construed, “Greater Than About 5%” Means
`1.
`“Greater Than 4.5 %” Ether Phospholipids
`It is undisputed that Catchpole discloses that phospholipids are associated
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`with a number of health benefits, that Catchpole’s extracts can be orally
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`administered, and that Example 18 describes krill oil having at least 4.8% ether
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`phospholipids and 39.8% phosphatidylcholine. See, e.g., Exhibit 1009, page 0001,
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`line 29 - p. 0002, line 2; p. 0024, lines 1-9; Tallon Decl.,¶¶208, 217-218, 223-226,
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`229.
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`Patent Owner’s only argument why Catchpole does not anticipate claims 1
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`and 11 hinges on narrowly construing “greater than about 5%” to mean “greater
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`than 4.95%” ether phospholipids. POR, 12-14, 15-16. However, the Board
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`previously rejected the same narrow construction Patent Owner currently proposes,
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`holding that “greater than about 5%” means “greater than 4.5%” ether
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`phospholipids. -295 FWD, 11-13. Patent Owner should be estopped from
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`revisiting the Board’s claim construction.
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`The same evidence relied on in IPR2018-00295 compels the same
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`U.S. Patent No. 9,072,752
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`construction in this proceeding. See, e.g., Petition, 22-27. Using basic principles
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`of significant figures and rounding rules, the term “5%” encompasses all amounts
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`that round up to that claimed value (e.g., 4.5-4.9%). See Tallon Decl.,¶¶162-168.
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`Additionally, the six claims of the ‘752 patent that expressly recite an ether
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`phospholipid limitation use only whole numbers which are accurate only to within
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`the rounding values. Thus, the proper construction of the phrase “greater than
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`about 5%” is “greater than 4.5%.”4
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`Applying the proper construction, Catchpole anticipates claims 1 and 11.
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`2.
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`Catchpole Describes Krill Extracts Having
`Greater Than 5%, 6% and 7% Ether Phospholipids
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`Patent Owner seeks to dismiss Catchpole’s disclosure of extracts containing
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`“greater than” 5% and 10% ether phospholipids (i.e., acylalkyphospholipids) by
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`superficially asserting that “Catchpole provides a virtually unlimited number of
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`source materials” from which phospholipids can be extracted. POR, 4-5, 16, 18,
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`4 The “greater than about 40%” phosphatidylcholine limitation should be
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`construed to mean “greater than 39.5%.” See, e.g., Petition, 27; Tallon
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`Decl.,¶¶167-168.
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`19, 23, 26. Patent Owner’s assertion that Catchpole does not anticipate claims 5-6
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`fails for several reasons.
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`First, an “anticipation analysis asks solely whether the prior art reference
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`discloses and enables the claimed invention, and not how the prior art characterizes
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`that disclosure or whether alternatives are also disclosed.” Hewlett-Packard Co. v.
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`Mustek Sys., Inc., 340 F.3d 1314, 1324, n.6 (Fed. Cir. 2003). Further, “anticipation
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`does not require actual performance of suggestions in the disclosure.” Bristol-
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`Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1379 (Fed. Cir. 2005).
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`As detailed below, Catchpole describes and enables krill oil having greater than
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`5% and 10% ether phospholipids.
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`Second, Catchpole not only discloses extracts having greater than 5% and
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`10% ether phospholipids, it also describes a specific example, Example 18, using a
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`krill feed material and discloses process conditions to obtain those percentages.
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`Tallon Reply/Opp.,¶¶12-50.
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`Catchpole discloses three marine animals, Examples 12, 17 and 18, to be
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`used as feed material for extracting ether phospholipids: Exhibit 1009, pp. 0021-
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`0022, 0023, 0024. Dr. Hoem testified that a POSITA extracting ether
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`phospholipids in accordance with the teachings of Catchpole would have been
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`directed to use the three marine animals as feed material. Hoem Deposition
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`(Exhibit 1145), 84:4-22; see 78:20-86:19. Krill is the marine animal with the
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`highest concentration of ether phospholipids and phospholipids in the resulting
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`extract, Exhibit 1009, p 0024, and a POSITA would have been directed to extract
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`ether phospholipids and phospholipids from that marine animal. See Tallon
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`Reply/Opp.,¶¶18-32.
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`The extracts recited in Catchpole exhibit a number 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. Describing preferable percentages of ether
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`phospholipids, Catchpole states:
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`More preferably the product comprises greater than 5%
`acylalkyphospholipids . . . . Even more preferably the product
`comprises greater than 10% acylalkyphospholipids . . . . Id., p. 0009,
`lines 18-21.
`To obtain greater than 5% and 10% ether phospholipids, Catchpole also
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`states that the feed material must contain at least 0.3% ether phospholipids. Id., p.
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`0005, line 20. Tallon Reply/Opp.,¶¶18-31; Hoem Dep. ¶¶84:14-22, Exhibit 1145.
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`Importantly, Example 18 of Catchpole provides a specific example of a marine
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`animal feed material (i.e., krill) having this requisite level of ether phospholipids
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`(i.e., 0.6% AAPC + 0.1% AAPE). Exhibit 1009, p. 0024, lines 1-19.
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`Finally, Catchpole discloses that changing process conditions influences the
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`constituents extracted and the extract’s purity. Id., p. 0012, lines 1-3; p. 0011, lines
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`11-17; Tallon Reply/Opp.,¶¶33-49. For example, Catchpole states that co-solvent
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`concentrations of at least 20% will increase the percentage of extracted
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`U.S. Patent No. 9,072,752
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`phospholipids, such as phosphatidylcholine. Id., p. 0012, lines 13-17; p. 0018, line
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`1 - p. 0019, line 3. Consistent with this disclosure, the ‘752 patent reports that
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`23% ethanol co-solvent results in a krill extract having 7.8% ether phospholipids.
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`Exhibit 1001, 31:14-25, 32:19-40.
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`Based on Catchpole, a POSITA desiring an extract having greater than 10%
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`ether phospholipids, or at least greater than about 6 or 7%, would have selected a
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`marine animal, such as krill, and applied Catchpole’s recited extraction
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`methodology. See, e.g., Exhibit 1009, p. 0027, lines 10-19, p. 0031, lines 11-13; p.
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`0035, lines 11-14; Tallon Reply/Opp.,¶¶12-50. Catchpole describes krill oil
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`extracts having greater than about 6 or 7% ether phospholipids, and therefore
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`anticipates claims 5-6.
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`B. Claims 4, 7 And 12-13 Would Have Been
`Obvious Based On Catchpole and Sampalis II
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`Dependent claims 4 and 7 recite omega-3 fatty acids and astaxanthin esters
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`limitations, respectively. Further, claim 12 requires that krill oil be extracted from
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`Euphausia superba, while claim 13 recites a capsule containing the krill oil of
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`claim 1. Focusing primarily on the percentage of ether phospholipids, Patent
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`Owner offers three unavailing arguments why Catchpole and Sampalis II do not
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`render each of these claims obvious. POR, 19-22. Patent Owner’s arguments have
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`either been previously rejected by the Board and/or are directly refuted by the cited
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`U.S. Patent No. 9,072,752
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`references.
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`1.
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`Catchpole Expressly Discloses Krill Extracts Having
`“Greater Than About 5%” Ether Phospholipids
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`Claims 4, 7 and 12-13 are each dependent on claim 1 and require “greater
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`than about 5%” ether phospholipids. However, the Board previously ruled the
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`proper construction of “greater than about 5%” is “greater than 4.5%” ether
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`phospholipids. Thus, Patent Owner’s contention that the cited prior art does not
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`teach krill oil having “greater than about 5%” ether phospholipids, POR, 19-20, is
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`repudiated by Catchpole’s disclosure that Extract 2 contained at least 4.8% ether
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`phospholipids and the Board’s prior claim construction ruling. Supra, pp. 5-6;
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`Tallon Reply/Opp.,¶¶15,16,52.
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`2.
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`A POSITA Could Readily Increase Extract 2’s
`Percentage of Ether Phospholipids
`Because it is reported that Extract 2 contained a ‘“highly enriched’ amount
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`of AAPC,” Patent Owner erroneously asserts that it “would not be possible to
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`increase the content of ether phospholipids in Extract 2 by further removal of
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`neutral lipids,” and a POSITA would, therefore not have “a reasonable expectation
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`of success in arriving at a krill oil containing greater than about 5% ether
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`phospholipids.” POR, 20. The Board can easily dispose of Patent Owner’s
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`assertion for at least three reasons.
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`First, properly construed, “greater than about 5%” means “greater than
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`4.5%” ether phospholipids. Supra, pp. 5-6. Accordingly, there would be no need
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`for a POSITA to remove neutral lipids, or any other constituent of Extract 2, to
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`satisfy the “greater than about 5%” ether phospholipid limitation.
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`Second, Patent Owner’s statement that a POSITA “would understand that
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`further enrichment [of Extract 2] is not possible because Example 18 teaches that
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`neutral lipids were removed from the feed materials in the first step of the
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`extraction” strains credulity. POR, 20. For example, agreeing with Dr. Tallon, the
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`Board previously determined that the 53.7% “other compounds” of Extract 2
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`contained a “significant amount” of triglycerides. -295 FWD, 37; see Tallon
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`Reply/Opp.,¶¶63-74, 78-79, 94-106. Notably, even Aker’s expert conceded that
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`Extract 2 contained neutral lipids. Hoem Deposition (Exhibit 1145), 150:2-151:25.
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`Thus, a POSITA desiring to increase the percentage of ether phospholipids in
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`Extract 2 could have simply removed a portion of the 53.7% “other compounds.”
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`See Tallon Reply/Opp.,¶92.
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`Third, Catchpole teaches that extraction conditions (i.e., duration,
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`temperature, pressure, solvents, and solvent concentration) can be readily varied
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`depending on the desired composition of the resulting extract. Exhibit 1009, p.
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`0011, lines 11-17; p. 0012, lines 1-3. Tallon Reply/Opp.,¶¶33-49. For example,
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`Examples 7 and 8 of Catchpole illustrate how increasing the co-solvent
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`concentration increased the percentage of phospholipids in the resulting extract.
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`Id., p. 0018, line 1 - p. 0019 (Exhibit 1009), line 3; Tallon Reply/Opp.,¶57.
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`Furthermore, the Board previously found a POSITA:
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`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.
`The Board also credited Dr. Tallon’s testimony 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 also Tallon Reply/Opp.,¶311.
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`Patent Owner’s argument that the prior art did not provide a POSITA with a
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`reasonable expectation of obtaining krill oil having “greater than about 5%” ether
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`phospholipids is refuted by Catchpole’s express disclosures and teachings.
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`3.
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`Patent Owner’s Argument That PAF Concerns
`Teach Away From Polar Krill Oil Having Greater
`Than About 5% Ether Phospholipids Lacks Merit
`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
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`ether phospholipids. POR, 21-22. 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, 23-28, 39-47; -746
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`FWD, 53-61; -745 FWD, 29-38.
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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
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`PAF-like lipids in some stored foods is still speculative and requires further
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`investigation.” Exhibit 1014, pp. 0001, 0005; Tallon Reply/Opp.,¶¶138-145,150,
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`152-153. Tanaka’s speculation and call for “further investigation” does not teach
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`away from krill oil having greater than 5% ether phospholipids. See, e.g., -295
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`FWD, 44, 46-47; -746 FWD, 57-59; -745 FWD, 34-36, 38.
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`Blank relates to dietary diacylphospholipids, not krill ether phospholipids, -
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`295 FWD, 25, and was unable to draw any conclusion regarding the formation of
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`PAF. Exhibit 2009, pp. 5-6 (“the production of, and subsequent biological
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`responses induced by PAF, in humans are presently unknown”); see Tallon
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`Reply/Opp.,¶¶160-164.
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`The remaining “PAF teaching away” references cited by Dr. Hoem, Exhibit
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`2001, ¶¶ 80-81, are also not new to the Board. Prescott teaches that ether
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`phospholipids having longer acyl groups, such as those present in krill and krill oil,
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`would not exhibit PAF activity. Exhibit 2008, p. 13; Tallon Reply/Opp.,¶¶148-
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`149; see -295 FWD, 43-45, 47; -746 FWD, 57-58; -745 FWD. 34-36, 38.
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`Zierenberg (Exhibit 2008) relates to diacylphosphatidylacholine which is not an
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`ether phospholipid. Tallon Reply/Opp.,¶¶129, 154; see -295 FWD, 44-45.
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`Hartvigsen (Exhibit 2010) describes the peroxidation of diacylglycerol ethers
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`which are also not ether phospholipids. Tallon Reply/Opp.,¶¶167-168; see -295
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`FWD, 24-25. Lastly, Marathe focuses on short-chained C4 analogs and homologs,
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`Exhibit 1094, pp. 0001, 0007, and “actually teaches that the ether phospholipids in
`
`krill oil would not act like PAF molecules.” See Tallon Reply/Opp.,¶¶130-131;
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`-295 FWD, 45.
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`“Commercial realities” completely undermine the assertion that there were
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`concerns ether phospholipids could be the precursors to PAF or PAF-like
`
`compounds. For example, Neptune’s commercial NKO krill oil product contained
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`ether phospholipid levels that Dr. Hoem testified were “high” or “substantial” and
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`that would have purportedly raised PAF concerns. Hoem Deposition (Exhibit
`
`1090), 58:10-20; 54:16-55:10; see -295 FWD, 46; -746 FWD, 60; -745 FWD, 36-
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`37; Tallon Reply/Opp.,¶¶190-200; see also pork consumption, id.,¶¶164-166.
`
`Tellingly, in representing that its “high phospholipid krill oil” was safe, Patent
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`Owner’s GRAS 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 concerns or
`14
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`Inter Partes Review Case No.: IPR2018-01730
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`issues regarding PAF. Exhibit 1089, pp. 0019-0020; see McQuate Decl. (Exhibit
`
`U.S. Patent No. 9,072,752
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`1150), ¶¶ 14-15, 81-83, 87-95; Tallon Reply/Opp.,¶¶170-174, 201-210; -295 FWD,
`
`46; -746 FWD, 60; -745 FWD, 37.
`
`Sampalis II describes phospholipid compositions extracted from natural
`
`marine or aquatic sources, and teaches that the preferred sources include
`
`Euphausia superba. Exhibit 1013, p. 0003, lines 9-12, p. 0027, lines 1-10.
`
`Describing the phospholipid extract, Sampalis II reports that “[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 omega-3 fatty acids by
`
`weight of fatty acids is greater than 45%. Id., p. 0030, lines 5-14; see Tallon
`
`Decl.,¶¶293-297. Additionally, Sampalis II discloses that krill oil phospholipids
`
`have a superior lipid profile, the highest quantities of DHA, and are the only
`
`phospholipids that contain a combination of EPA and DHA on the same molecule.
`
`Exhibit 1013, p. 0036, 34:16-18. It was also known that the unique association
`
`between the phospholipids and long chain omega-3 fatty acids increase
`
`bioavailability and are beneficial, particularly in connection with cardiovascular
`
`disease. Tallon Decl.,¶¶80-81, 88, 334.
`
`A POSITA would have possessed reasons and motivation to combine the
`
`teachings of Catchpole, and Sampalis II. For example, it was also known that
`
`omega-3 fatty acids provided significant health benefits. Bunea (Exhibit 1020), p.
`15
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`Inter Partes Review Case No.: IPR2018-01730
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`0002; Tallon Decl.,¶¶438-439. Additionally, a POSITA would have been
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`U.S. Patent No. 9,072,752
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`motivated to look to references such as Catchpole, and Sampalis II, when
`
`developing krill oil for oral consumption to determine the approximate amounts of
`
`other beneficial components that could be extracted using conventional extraction
`
`techniques and solvent systems. Tallon Decl.,¶¶438-439.
`
`C. Claims 8-10 Would Have Been Obvious Based On
`Catchpole, Grynbaum and Randolph
`Dependent claims 8-10 recite greater than about 1000 mg/kg, 1500 mg/kg
`
`and 2000 mg/kg astaxanthin esters, respectively. It is not disputed Gyrnbaum
`
`describes a krill extract having at least 3921 mg/kg of -trans astaxanthin esters, and
`
`Randolph discloses compositions that may contain krill oil and those compositions
`
`may contain “any amount” of krill oil and astaxanthin. Exhibit 1039, p. 0008;
`
`Exhibit 1011, ¶¶ 0006-0007, 0040, 0044; see Petition, 47-49; Tallon Decl.,¶¶273-
`
`279, 348-361, 444-449.
`
`Nevertheless, Patent Owner asserts, “Grynbaum and Randolph do not
`
`disclose the amount of ether phospholipids in the disclosed krill oil,” and again
`
`urges that Catchpole does not disclose “greater than about 5%” ether
`
`phospholipids. POR, 23-24. As detailed previously, the phrase “greater than about
`
`5%,” when properly construed, means “greater than 4.5%.” ether phospholipids.
`
`16
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`Inter Partes Review Case No.: IPR2018-01730
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`Thus, Catchpole’s Example 18/Extract 2 satisfies the “greater than about 5%”
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`U.S. Patent No. 9,072,752
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`limitation of the challenged claims. Supra, pp. 5-6.
`
`Patent Owner relegates its remaining arguments to a single sentence,
`
`asserting: (1) the ether phospholipid content of Extract 2 could not be increased
`
`beyond 4.8% because all neutral lipids/triglycerides were purportedly removed;
`
`and (2) PAF concerns teach away from krill oil having greater than 5% ether
`
`phospholipids. POR, 24. As detailed previously, neither of these arguments pass
`
`muster. Supra, pp. 10-16.
`
`A POSITA would have understood that astaxanthin and esterified
`
`astaxanthin, including that extracted from krill, is a well known antioxidant
`
`associated with various health benefits. Tallon Decl.,¶¶89, 97, 112, 201, 328, 346,
`
`402-404. Further, Grynbaum discloses a krill oil extract having high levels of
`
`-trans astaxanthin esters (e.g., greater than 2000 mg/kg), while Randolph discloses
`
`krill oil compositions having astaxanthin esters that can be used to “treat diseases
`
`and/or abnormal conditions associated with inflammatory response.” Accordingly,
`
`in view of Catchpole’s teachings that extracts containing phospholipids, including
`
`those obtained from krill, provide health benefits, a POSITA would have been
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`motivated to look to other references such as Grynbaum and Randolph to ascertain
`
`the amount of astaxanthin esters present in krill extracts. Tallon Decl.,¶¶440-450.
`
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`17
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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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`D. Claims 1-3, 5-6 And 11 Would Have Been
`Obvious Based On Catchpole And Enzymotec
`Patent Owner’s arguments that claims 1-3, 5-6 and 11 would not have been
`
`obvious based on Catchpole and Enzymotec are meritless for several reasons.
`
`First, Patent Owner does not dispute that Enzymotec satisfies the “greater than
`
`about” 40% and 45% phosphatidylcholine limitations of claims 1 and 2,
`
`respectively, the triglyceride limitation of claim 3, or that a POSITA would have
`
`been motivated to combine those aspects of Enzymotec with the Catchpole’s krill
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`oil disclosure. See Petition, 56-59. Patent Owner also does not dispute that
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`Enzymotec was publicly accessible and is prior art to the ‘752 patent. See Petition,
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`9-13. Second, Patent Owner places great weight behind its contention that
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`Catchpole cannot be used to ascertain the percentage of ether phospholipids in that
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`Enzymotec’s Grade B krill extract. POR, 27-31. While Dr. Tallon noted that a
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`POSITA would have understood that Enzymotec’s Grade B krill extract contained
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`8-9.7% ether phospholipids, Tallon Decl.,¶242, Petitioner is relying on Catchpole,
`
`not Enzymotec, to satisfy the ether phospholipids limitations of claims 1-3, 5-6 and
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`11. Petition, 49-59; Institution Decision (Paper 7), 16-19.
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`Catchpole and Enzymotec render claims 1-3, 5-6 and 11 obvious, and Patent
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`Owner’s arguments to the contrary should be rejected.
`
`
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`18
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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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`1.
`
`Catchpole Discloses Krill Oil Having “Greater Than
`About” 5%, 6% And 7% Ether Phospholipids
`
`
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`Patent Owner erroneously maintains that the “combined references do not
`
`teach the claim limitations of “greater than about” 5%, 6% or 7% ether
`
`phospholipids.” POR, 25-26. However, as detailed previously, Catchpole
`
`describes, discloses and teaches krill oil having greater than about 5%, 6% and 7%
`
`ether phospholipids. Supra, pp. 5-9. In fact, the Board observed, “Catchpole
`
`teaches compositions that can contain greater than 10% acylalkyphospholipids.”
`
`Institution Decision, 11. Apart from comporting with Catchpole’s disclosure, this
`
`is also consistent with the Board’s previous finding:
`
`Given the overall teachings of Catchpole that an
`acylalkylphospholipid 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).
`Not only does Catchpole describe krill oil satisfying the percentages of ether
`
`phospholipids recited in claims 1-3, 5-6 and 11, so does Enzymotec. As Dr. Tallon
`
`testified, based on the teachings of Catchpole, a POSITA would have understood
`
`that Enzymotec’s Grade B krill extract contained 8-9.7% ether phospholipids.
`
`Tallon Decl.,¶242; Tallon Reply/Opp.,¶61.
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`
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`19
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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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`2.
`
`A POSITA Would Have Possessed a Reasonable
`Expectation Of Obtaining Krill Oil Having
`Greater Than About 5%, 6% or 7% Ether Phospholipids
`
`
`
`Patent
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