Trials@uspto.gov
`571-272-7822
`
`Paper 6
` Date: April 12, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`IPR2020-01532
`Patent 9,644,169 B2
`
`
`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`MICHAEL A. VALEK, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 6
` Date: April 12, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`IPR2020-01532
`Patent 9,644,169 B2
`
`
`Before ERICA A. FRANKLIN, JON B. TORNQUIST, and
`MICHAEL A. VALEK, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`
`INTRODUCTION
`I.
`A. Background and Summary
`Rimfrost AS (“Petitioner”) filed a Petition (Paper 2, “Pet.”) requesting
`an inter partes review of claims 1–20 of U.S. Patent No. 9,644,169 B2
`(Ex. 1001, “the ’169 patent”). Aker Biomarine Antarctic AS (“Patent
`Owner”) did not file a Preliminary Response to the Petition.
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314 (2018); 37 C.F.R. § 42.4(a) (2019). The standard
`for institution is set forth in 35 U.S.C. § 314(a), which provides that an inter
`partes review may not be instituted “unless the Director determines . . . there
`is a reasonable likelihood that the petitioner would prevail with respect to at
`least 1 of the claims challenged in the petition.”
`After considering Petitioner’s arguments and evidence, and for the
`reasons set forth below, we determine that Petitioner has demonstrated a
`reasonable likelihood of prevailing with respect to at least one claim
`challenged in the Petition. Accordingly, we institute an inter partes review
`of all claims and grounds set forth in the Petition.
`B. Real Parties in Interest
` Petitioner identifies itself, Olympic Holding AS, Emerald Fisheries
`AS, Rimfrost USA, LLC, Rimfrost New Zealand Limited, and Bioriginal
`Food and Science Corp. as real parties in interest. Pet. 3. Based on various
`ownership interests, and out of “an abundance of caution,” Petitioner also
`identifies Stig Remøy, SRR Invest AS, Rimfrost Holdings AS, and Omega
`Protein Corporation as real parties in interest. Id.
`Patent Owner identifies itself as a real party in interest in this
`proceeding. Paper 5, 1.
`
`2
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`
`C. Related Matters
`Petitioner and Patent Owner identify several related matters.
`Specifically, the parties identify Aker Biomarine Antarctic AS v. Olympic
`Holding AS, Case No. 1:16-CV-00035-LPS-CJB (D. Del.), which involved
`U.S. Patent Nos. 9,028,877 B2 (“the ’877 patent”) and 9,078,905 B2 (“the
`’905 patent”). Pet. 3–4; Paper 5, 1. The parties further identify
`Investigation No. 337-TA-1019 by the United States International Trade
`Commission, which involved the ’877 and ’905 patents, as well as U.S.
`Patent No. 9,320,765 (“the ’765 patent”), U.S. Patent No. 9,375,453 (“the
`’453 patent”), and U.S. Patent No. 9,072,752 (“the ’752 patent”). Pet. 4;
`Paper 5, 1–2.
`The parties also identify the following Board proceedings as related
`matters:
`• IPR2017-00745 and IPR2017-00747, which requested review
`of the ’905 patent (all challenged claims found unpatentable
`(Ex. 1103), decision affirmed on appeal (Ex. 1154));
`• IPR2017-00746 and IPR2017-00748, which requested review
`of the ’877 patent (all challenged claims found unpatentable
`(Ex. 1104), decision affirmed on appeal (Ex. 1154));
`• IPR2018-00295, which requested review of the ’765 patent (all
`challenged claims found unpatentable (Ex. 1129));
`• PGR2018-00033, which requested review of U.S. Patent
`No. 9,644,170 (institution denied because the challenged patent
`was not eligible for post grant review);
`
`3
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`• IPR2018-01178 and IPR2018-01179, which requested review
`of the ’453 patent (all challenged claims found unpatentable
`(Exs. 1157, 1158));
`• IPR2018-01730, which requested review of the ’752 patent (all
`challenged claims found unpatentable (Ex. 1159)); and
`• IPR2020-01533, which requested review of U.S. Patent No.
`9,816,046 B2 (pending).
`Pet. 4–7; Paper 5, 2–4.
`
`D. The ’169 Patent
`The ’169 patent discloses extracts from Antarctic krill that include
`bioactive fatty acids. Ex. 1001, 1:22–23. The ’169 patent explains that krill
`oil compositions, including compositions having up to 60% w/w
`phospholipid content and as much as 35% w/w EPA/DHA1 content, were
`known in the art. Id. at 1:57–60. The ’169 patent further explains that
`“[k]rill oil compositions have been described as being effective for
`decreasing cholesterol, inhibiting platelet adhesion, inhibiting artery plaque
`formation, preventing hypertension, controlling arthritis symptoms,
`preventing skin cancer, enhancing transdermal transport, reducing the
`symptoms of premenstrual symptoms or controlling blood glucose levels in
`a patient.” Id. at 1:49–55.
`
`According to the ’169 patent, frozen krill are typically transported
`from the Southern Ocean to a processing site, but lipases and phospholipases
`within the krill can result in the decomposition of glycerides and
`phospholipids during transport. Id. at 2:6–16, 9:61–10:8. To avoid the
`
`
`1 According to the ’169 patent, “EPA” is 5,8,11,14,17-eicosapentaenoic acid
`and “DHA” is 4,7,10,13,16,19-docosahexanoic acid. Ex. 1001, 9:12–16.
`
`4
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`problem of enzymatic decomposition of krill products, the ’169 patent
`describes a method of thermally denaturing the lipases and phospholipases
`in fresh-caught krill prior to storage and processing. Id. at 10:5–10, 10:45–
`50. The ’169 patent reports that these denaturing steps allow for the storage
`of krill material “for from about 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, or 12 months to
`about 24 to 36 months prior to processing.” Id. at 10:36–44.
`After denaturation, the krill can be subject to extraction processes
`either on board the ship or at a remote location. Id. at 10:38–40. In one
`embodiment, krill oils are extracted from krill meal in two stages. Id. at
`9:54–55. In the first stage, a neutral fraction is extracted using either neat
`supercritical CO2 or CO2 in combination with 5% ethanol. Id. at 9:55–57. In
`the second stage, polar lipids (phospholipids) are extracted by adding at least
`20% ethanol to the supercritical CO2 extraction medium. Id. at 9:58–60.
`The ’169 patent reports that “[k]rill oil extracted from denatured krill meal
`by supercritical fluid extraction even 19 months after the production of the
`meal contained virtually no decomposed phospholipids.” Id. at 11:3–6. The
`’169 patent further reports that the novel krill oil compositions of the
`invention are “characterized by containing high levels of astaxanthin,
`phospholipids, includ[ing] enriched quantities of ether phospholipids, and
`omega-3 fatty acids.” Id. at 9:46–49.
`E. Illustrative Claim
`Petitioner challenges claims 1–20 of the ’169 patent. Of those claims,
`claims 1 and 12 are independent. Claims 2–11 depend, directly or indirectly
`from claim 1, and claims 13–20 depend, directly or indirectly, from claim
`12. Claim 1 is illustrative of the challenged claims and is reproduced below:
`1. A method of production of krill oil comprising:
`a) providing krill;
`
`5
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`b) treating said krill to denature lipases and phospholipases in said
`krill to provide a denatured krill product;
`c) storing said denatured krill product for a storage period of from 1 to
`24 months;
`d) after said storage period, extracting oil from said denatured krill
`product with a polar solvent to provide a krill oil with from about 3%
`to about 15% ether phospholipids w/w of said krill oil astaxanthin
`esters in amount of greater than about 100 mg/kg of said krill oil.
`
`Ex. 1001, 35:45–55.
`F. Prior Art and Asserted Grounds
`Petitioner asserts that claims 1–20 of the ’169 patent would have been
`unpatentable on the following grounds:
`35
`Reference(s)/Basis
`U.S.C. §
`103(a)2 Breivik II, 3 Catchpole,4 Budziński,5
`Fricke,6 Randolph7
`103(a) Breivik II, Catchpole, Budziński,
`Fricke, Randolph, Sampalis I8
`
`Claims Challenged
`
`1–5, 7–15, 17–20
`
`6, 16
`
`
`2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the ’169
`patent has an effective filing date before the March 16, 2013, effective date
`of the applicable AIA amendments, we refer to the pre-AIA versions of
`35 U.S.C. §§ 102 and 103.
`3 Breivik, WO 2008/060163 A1, published May 22, 2008 (Ex. 1037).
`Breivik claims priority to U.S. Provisional Application No. 60/859,289, filed
`November 16, 2006. Ex. 1037, [30].
`4 Catchpole, WO 2007/123424 A1, published Nov. 1, 2007 (Ex. 1009).
`5 Budziński et al., Possibilities of processing and marketing of products
`made from Antarctic krill, FAO Fish. Tech. Pap. (268):46 (1985) (Ex. 1008).
`6 Fricke et al., Lipid, Sterol and Fatty Acid Composition of Antarctic Krill
`(Euphausia superba Dana), 19(11) LIPIDS 821–827 (1984) (Ex. 1010).
`7 Randolph et al., US 2005/0058728 A1, published Mar. 17, 2005
`(Ex. 1011).
`8 Sampalis et al., Evaluation of the Effects of Neptune Krill Oil™ on the
`Management of Premenstrual Syndrome and Dysmenorrhea, 8(2) ALT.
`
`6
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`In support of its obviousness arguments, Petitioner further relies on the
`testimony of Dr. Stephen J. Tallon (Ex. 1006).
`
`II. ANALYSIS
`A. Claim Construction
`In this proceeding, the claims of the ’169 patent are construed “using
`the same claim construction standard that would be used to construe the
`claim in a civil action under 35 U.S.C. [§] 282(b).” 37 C.F.R. § 42.100(b)..
`Under that standard, the words of a claim are generally given their “ordinary
`and customary meaning,” which is the meaning the term would have had to
`a person of ordinary skill at the time of the invention, in the context of the
`entire patent including the specification. Phillips v. AWH Corp., 415 F.3d
`1303, 1312–13 (Fed. Cir. 2005) (en banc).
`Petitioner provides proposed claim constructions for the terms “krill
`oil,” “denature lipases and phospholipases,” “polar solvent,” “astaxanthin
`esters,” “krill meal,” and “freshly harvested.” Pet. 32–39. Upon review of
`the arguments and evidence presented at this stage of the proceeding, we
`determine that construction of the identified claim terms is not necessary for
`purposes of this Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999) (only terms that are in controversy need
`to be construed, and only to the extent necessary to resolve the controversy).
`
`
`MED. REV. 171–179 (2003) (Ex. 1012).
`
`
`7
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`B. Claims 1–5, 7–15, and 17–20 over Breivik II, Catchpole, Budziński,
`Fricke, and Randolph
`Petitioner contends that claims 1–5, 7–15, and 17–20 would have been
`obvious over the combined disclosures of Breivik II, Catchpole, Budziński,
`Fricke, and Randolph. Pet. 42–66.
`1. Breivik II9
`Breivik II discloses “a process for preparing a substantially total lipid
`fraction from fresh krill,” as well as “a process for separating phospholipids
`from the other lipids.” Ex. 1037, 1:8–10. Breivik II explains that krill are
`“small, shrimp-like animals, containing relatively high concentrations of
`phospholipids” and that the krill with the “greatest potential for commercial
`utilization is the Antarctic Euphausia superba” (“E. superba”). Id. at 1:25–
`28. Breivik II further explains that fresh krill contains up to around 10%
`lipids, and in E. superba approximately 50% of these lipids are
`phospholipids. Id. at 1:32–33.
`Breivik II notes that lipases within the krill’s digestive tract remain
`active after the krill is harvested and may hydrolyze part of the krill lipids,
`potentially resulting in a krill oil with undesired amounts of free fatty acids.
`Id. at 2:6–9. To prevent this enzymatic activity, Breivik II discloses an
`optional heat treatment phase that inactivates krill lipases, “thus ensuring a
`product with very low levels of free fatty acids.” Id. at 4:3–6.
`Once the lipases are inactivated, the lipids may be extracted from the
`krill meal. See id. at 9:29–10:12. Breivik II explains that it was known in
`
`
`9 Petitioner contends that Breivik II is prior art to the ’169 patent under
`35 U.S.C. § 102(e), based on the November 16, 2006 filing date of U.S.
`Provisional Application No. 60/859,289. Pet. 11.
`
`
`8
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`the art to extract lipids from krill by successive extraction at low
`temperatures using organic solvents like acetone and ethanol or by
`supercritical fluid extraction using carbon dioxide. Id. at 2:21–31. These
`methods, however, either required large amounts of organic solvents or
`resulted in a product “mainly consisting of unpolar lipids (mostly
`triglycerides), and no phospholipids.” Id. at 2:23–24, 2:28–29. To
`overcome the problems disclosed in the art, Breivik II teaches an extraction
`process that provides a substantially total lipid fraction that includes
`triglycerides, astaxanthin, and phospholipids from fresh krill, without using
`organic solvents like acetone. Id. at 3:19–20, 3:26–31.
`In one embodiment, Breivik II describes an extraction process in
`which fresh krill is washed with ethanol and the ethanol-washed krill is then
`extracted with supercritical CO2 containing 10% ethanol. Id. at 7:31–8:3
`(Example 2). Breivik II also discloses an optional, pre-treatment step in
`which the raw material is heated at 80ºC for 5 minutes before the first wash
`with ethanol (Example 6), which Breivik II reports results in “an increased
`yield of lipids compared to the same treatment with no heating.” Id. at 9:5–
`11, 9:33–34 (emphasis omitted), 12:1–9 (noting that the lipid fraction of the
`inventive product would be expected, among other things, to contain
`substantially less hydrolyzed and/or oxidized lipids than lipid produced by
`conventional processes).
`
`2. Catchpole
`Catchpole discloses “a process for separating lipid materials
`containing phospholipids.” Ex. 1009, 1:5–6, 3:27–28. Catchpole explains
`that phospholipids “have been implicated in conferring a number of health
`benefits including brain health, skin health, eczema treatment, anti-infection,
`wound healing, gut microbiota modifications, anticancer activity, alleviation
`
`9
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`of arthritis, improvement of cardiovascular health, and treatment of
`metabolic syndromes.” Id. at 1:29–2:2. Catchpole further explains that
`products having high levels of particular phospholipids “may be employed
`in a number of applications, including infant formulas, brain health, sports
`nutrition and dermatological compositions.” Id. at 25:9–13.
`In Example 18, Catchpole describes the fractionation of krill lipids
`from krill powder using a process that employs supercritical CO2 in a first
`extraction and then CO2 and ethanol in a second extraction. Id. at 24:1– 16.
`Table 16 of Catchpole is reproduced below.
`
`
`
`Table 16 reports the phospholipid concentrations present in the krill oil
`extract obtained in Example 18. Id. at Table 16. As shown in Table 16,
`Extract 2 has a total phospholipid concentration of 45.1%, and includes
`39.8% phosphatidylcholine (“PC”), 4.6% alkylacylphosphatidylcholine
`(“AAPC”), and 0.2% alkylacylphosphatidylethanolamine (“AAPE”). Id.;
`see also id. at 1:11–15 (defining PC, PI, PS, PE, and CL).
`3. Budziński
`Budziński “presents the current state of possible commercial-scale
`uses of krill-processing technologies,” including processing technologies for
`products for “human consumption, animal feed, and industrial purposes.”
`Ex. 1008, Abstr. Budziński explains that the “main difficulty in krill
`
`10
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`processing” is caused by proteolytic enzymes, such as lipases. Id. at 6.10
`According to Budziński, lipases “cause the decomposition of phospholipids
`and, to a lesser degree, triglycerides,” resulting in an increase of free fatty
`acids in krill oil. Id. at 6–7. To avoid enzyme degradation of krill products,
`Budziński explains that storage time for raw krill products “should be as
`short as possible” and that vessels “must be properly equipped for
`processing” krill as soon as possible after capture. Id. at 9, 20 (“Efforts
`should be made to regulate catches so that the time before processing is as
`short as possible.”), 25 (“Due to its technological properties, the raw
`materials should be processed as soon as possible after capture. The only
`way to meet this requirement is to install processing facilities on-board the
`vessel.”). Budziński discloses that the optimum temperature for heating krill
`is believed to be 80–85 ℃ and that properly processed krill meal is “stable
`for 13 months of storage without addition of antioxidants.” Id. at 20–22.
`4. Fricke
`Fricke reports the total lipid content and composition for krill samples
`caught in the Antarctic Ocean in December 1977 and March 1981.
`Ex. 1010, Abstr., 822. These samples contained approximately 33.3% +/-
`0.5% w/w (1977 sample) and 40.4% +/- 0.1% w/w (1981 sample)
`triacylglycerols. Id. Fricke notes that samples from the 1977 sample
`contained free fatty acid levels that were about twice that of the 1981
`sample. Id. at 822. In contrast, samples of the same haul that had been
`cooked on board “immediately after hauling,” showed a free fatty acid
`
`
`10 Citations are to the original page numbers of the document that are
`centered at the top of each page.
`
`11
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`content that “was much lower, ranging from 1% to 3% of total lipids.” Id. at
`822–23.
`
`5. Randolph
`Randolph discloses compositions for modulating an inflammatory or
`immunomodulatory response, including krill oil. Ex. 1011 ¶ 8. The krill oil
`of Randolph may be obtained from any member of the Euphausia family,
`including Euphausia superba, and typically contains “between about 300 mg
`and about 3000 mg of a krill oil ingredient.” Id. ¶¶ 39–40. Randolph further
`teaches that the composition can contain any amount of an astaxanthin
`ingredient, including at least about 1, 2, 3, 4, 5, 10, 15, 20, 25, 30, 35, 40,
`50, 60, 70, 80, or 90 percent astaxanthin, typically resulting in between
`about 0.5 mg and about 50 mg of astaxanthin in the product. Id. ¶ 44.
`Randolph explains that the ingredients of the composition can be
`processed into various “delivery systems,” such as capsules, soft gel
`capsules, tablets, gel tabs, lozenges, strips, granules, powders, concentrates,
`solutions, lotions, creams or suspensions. Id. ¶¶ 46, 52.
`6. Analysis: Claim 1
`Claim 1(a) requires “providing krill” and claim 1(b) requires
`providing a denatured krill product by treating the krill to denature lipases
`and phospholipases. Ex. 1001, 35:45–47. Petitioner contends that Breivik II
`and Fricke disclose catching krill, Breivik II and Budziński disclose that
`“heat treatment” will inactivate krill enzymes, including lipase, and Fricke
`discloses cooking krill immediately after hauling, which results in a
`processed krill product containing only 1–3% free fatty acids. Pet. 44–45
`(citing Ex. 1037, 4:3–6, 9:5–10, 10:11–12; Ex. 1008, 12, 26; Ex. 1010, 2–3).
`Accordingly, Petitioner contends that Breivik II and Fricke disclose
`
`12
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`“providing krill,” as recited in claim 1(a), and Breivik II, Budziński, and
`Fricke disclose a denatured krill product, as recited in claim 1(b). Id.
`With respect to “storing said denatured krill product for a storage
`period of from 1–24 months,” as recited in claim 1(c), Petitioner argues that
`Fricke discloses storage of processed krill prior to solvent extraction and
`Budziński discloses that “stable” krill meal can be stored for at least 13
`months. Id. at 45 (citing Ex. 1008, 27–28; Ex. 1010, 2–3; Ex. 1006 ¶¶ 441–
`444).
`
`With respect to extracting oil from the denatured krill product with a
`polar solvent, as recited in claim 1(d), Petitioner contends that Breivik II and
`Catchpole disclose extracting krill oil using superfluid CO2 and ethanol (a
`polar solvent), Fricke discloses extraction using the known polar solvent
`system of chloroform-methanol, and Budziński discloses extracting krill oil
`using various organic solvents. Id. at 46 (citing Ex. 1037, 9:5–26; Ex. 1009,
`24:1–19; Ex. 1010, 2–3; Ex. 1008, 30; Ex. 1006 ¶¶ 445–449).
`With respect to the requirement that the krill oil have from about 3%
`to about 15% ether phospholipids, as well as astaxanthin esters in an amount
`greater than about 100 mg/kg of said krill oil, as recited in claim 1(d),
`Petitioner contends that Catchpole describes a krill oil containing 4.8% ether
`phospholipids and Randolph discloses a krill oil having at least 158 mg/kg
`of astaxanthin esters. Id. at 47–49 (citing Ex. 1006 ¶¶ 190–196, 211, 264,
`450–452, 482–483; Ex. 1009, 14:7–11, Table 16; Ex. 1011 ¶¶ 40–41).
`Petitioner contends one of ordinary skill in the art would have
`combined the various disclosures of Breivik II, Catchpole, Budziński,
`Fricke, and Randolph to arrive at the subject matter of the challenged claims
`because each reference is in the same field of endeavor and it was well
`known in the art that lipases and phospholipases in fresh krill should be
`
`13
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`denatured prior to storage to prevent spoilage. Pet. 59–60. Petitioner
`further contends that one of ordinary skill in the art would have sought to
`store denatured krill products for up to 13 months, as disclosed in Budziński,
`in order to allow for cheaper land-based extraction of krill products using
`polar solvents. Id. at 60–61. Finally, Petitioner contends one of ordinary
`skill in the art would have sought to obtain the claimed levels of ether
`phospholipids and astaxanthin esters, as disclosed in Catchople and
`Randolph, in view of the known health benefits of these compounds. Id. at
`63–65.
`As noted above, Patent Owner did not file a Preliminary Response
`challenging Petitioner’s arguments.
`Upon review of Petitioner’s arguments and supporting evidence, we
`determine that, on this record, Petitioner sufficiently demonstrates that
`Breivik II, Catchpole, Budziński, Fricke, and Randolph teach or suggest
`every limitation of claim 1 of the ’169 patent. Petitioner also sufficiently
`explains for purposes of institution why one of ordinary skill in the art would
`have combined these disclosures to arrive at the subject matter of claim 1.
`Accordingly, on this record, Petitioner demonstrates a reasonable likelihood
`that claim 1 would have been obvious over Breivik II, Catchpole, Budziński,
`Fricke, and Randolph.
`7. Analysis: Claims 2–5, 7–15, and 17–20
`Independent claim 12 is similar to independent claim 1, but further
`requires “treating freshly harvested krill.” Compare Ex. 1001, 35:45–55
`with id. at 36:30–40. Petitioner contends that Breivik II expressly describes
`a process for “preparing a substantially total lipid fraction from fresh krill.”
`Pet. 50 (citing Ex. 1037, 3:29–30).
`
`14
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`With respect to dependent claims 2–5, 7–11, 13–15 and 17–20,
`Petitioner identifies where: (1) Breivik II, Budziński, and Fricke teach or
`suggest treating krill on a ship to denature lipases and phospholipases, as
`recited in claim 2 (Pet. 53 (citing Ex. 1006 ¶¶ 454–457)); (2) Breivik II,
`Budziński, and Fricke disclose using heat to denature krill lipases and
`phospholipases, as recited in claims 3 and 13 (id. at 53–54 (citing Ex. 1006
`¶¶ 458–463)); Budziński and Fricke disclose denaturing krill meal, as recited
`in claims 4 and 14 (id. at 54–55 (citing Ex. 1006 ¶¶ 464–467)); Breivik II,
`Budziński, and Fricke disclose processing freshly harvested krill, as recited
`in claims 5 and 15 (id. at 55 (citing Ex. 1006 ¶¶ 468–472)); Breivik II,
`Budziński, and Fricke disclose the use of Antarctic krill, as recited in claims
`7 and 17 (id. at 56 (citing Ex. 1006 ¶¶ 473–478)); Breivik II, Budziński, and
`Fricke disclose the use of Euphausia superba, as recited in claims 8 and 18
`(id. at 56–57 (citing Ex. 1006 ¶¶ 474–478)); Randolph and Breivik II
`disclose krill oil compositions with greater than 200 mg/kg astaxanthin
`esters, as recited in claims 9 and 19 (id. at 57–58 (citing Ex. 1006 ¶¶ 479–
`485)); Catchpole discloses an extracted krill oil having at least 30% total
`phospholipids, as recited in claims 10 and 20 (id. at 58 (citing Ex. 1006
`¶¶ 486–489)); and Catchpole discloses a krill oil with at least 30%
`phosphatidycholine, as recited in claim 11 (id. at 59 (citing Ex. 1006 ¶¶ 490–
`491)).
`Upon review of Petitioner’s arguments and evidence, and based on the
`current record, we determine that Petitioner has demonstrated a reasonable
`likelihood of prevailing with respect to claims 2–5, 7–15, and 17–20.
`
`15
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`C. Claims 6 and 16 over Breivik II, Catchpole, Budziński, Fricke,
`Randolph, and Sampalis I.
`Claims 6 and 16 depend from claims 1 and 12, respectively, and
`further require encapsulating the krill oil. Ex. 1001, 36:17–18, 36:47–48.
`Petitioner contends the subject matter of claims 6 and 16 would have been
`obvious over the combined disclosures of Breivik II, Catchpole, Budziński,
`Fricke, Randolph, and Sampalis I. Pet. 66–68.
`1. Sampalis I
`Sampalis I discloses the health benefits of an encapsulated krill oil
`product and, in particular, reports that two soft gels of the product taken
`daily “can significantly reduce the physical and emotional symptoms related
`to premenstrual syndrome.” Ex. 1012, Abstr.
`2. Analysis
`Petitioner contends that one of ordinary skill in the art would have
`found it obvious to encapsulate krill oil extracts in view of Sampalis I’s
`disclosure of encapsulating krill oil to form a medically beneficial krill oil
`product, and in view of the established understanding in the art that
`encapsulated krill oil extracts provide a “convenient and easy to administer
`dosage form.” Pet. 67–68 (citing Ex. 1006 ¶¶ 64, 69, 218).
`Upon review of Petitioner’s arguments and supporting evidence, on
`the current record, we determine that Petitioner demonstrates a reasonable
`likelihood that claims 6 and 16 would have been obvious over Breivik II,
`Catchpole, Budziński, Fricke, Randolph, and Sampalis I.
`D. Conclusion
`After considering Petitioner’s arguments and supporting evidence, we
`determine that, on the current record, the information presented shows a
`reasonable likelihood that Petitioner would prevail in establishing that
`
`16
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`claims 1–20 of the ’169 patent are unpatentable on the grounds asserted in
`the Petition.
`
`III. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
`review of claims 1–20 of the ’169 patent is hereby instituted on the grounds
`set forth in the Petition; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`commences on the entry date of this decision.
`
`17
`
`
`
`IPR2020-01532
`Patent 9,644,169 B2
`FOR PETITIONER:
`
`James Harrington
`jharringto@hbiplaw.com
`
`Michael Chakansky
`mchakansky@hbiplaw.com
`
`John Gallagher
`jgallagher@bhiplaw.com
`
`
`
`FOR PATENT OWNER:
`David Casimir
`dacasimir@casimirjones.com
`
`John Jones
`jmjones@casimirjones.com
`
`
`
`18
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
