Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`RIMFROST AS
`Petitioner
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`v.
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`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
`
`
`CASE IPR: IPR2020-01532
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`U.S. Patent No. 9,644,169 B2
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`Declaration of Dr. Snorre Tilseth
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`AKER EXHIBIT 2001 PAGE 0001
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`Ex. 2001, Tilseth Declaration
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`RIMFROST AS
`Petitioner
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
`
`
`CASE IPR: IPR2020-01532
`
`U.S. Patent No. 9,644,169 B2
`
`Declaration of Dr. Snorre Tilseth
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`1
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`AKER EXHIBIT 2001 PAGE 0001
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`I.
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`Introduction
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`I, Dr. Snorre Tilseth, do declare as follows:
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`1.
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`I have personal knowledge of the matters set forth herein, and if I am
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`called upon to testify, I could testify competently thereto.
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`2.
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`I am one of three joint inventors of the subject matter described in
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`U.S. Patent Application 15/180,431, filed June 13, 2016 and which issued on May
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`9, 2017 as U.S. Patent No. 9,644,169 (the “ ‘169 Patent’ ”). The ‘169 Patent is a
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`continuation of U.S. Pat. No. 9,375,453, which is a continuation of U.S. Pat. No.
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`9,034,388, all of which the claim the benefit of the following U.S. Provisional
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`Applications: 60/920,483 filed March 28, 2007; 60/975,058 filed September 25,
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`2007; 60/983,446 filed October 29, 2007; and 61/024,072 filed January 28, 2008.
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`The remaining inventors, Inge Bruheim and Daniele Mancinelli are no longer
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`employed by Aker Biomarine Antarctic AS or any Aker subsidiary.
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`3.
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`I started working with Aker Seafoods on October 1, 2005. I am
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`currently employed by Aker BioMarine as a Senior advisor and have worked for
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`Aker BioMarine since its formation in 2006. I am not being compensated
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`separately for this Declaration.
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`4.
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`I understand that inter partes review of Claims 1-20 of the
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`’169 patent has been instituted in IPR2020-01532. I understand that the Grounds
`2
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`AKER EXHIBIT 2001 PAGE 0002
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`for invalidity which are being considered are as follows:
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`Ground 1: Claims 1-5, 7-15 and 17-20 are alleged to be obvious under 35
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`U.S.C. 103(a) over the combination of Breivik II, Catchpole, Budzinski,
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`Fricke and Randolph;
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`Ground 2: Claims 6 and 16 are alleged to be obvious under 35 U.S.C. 103(a)
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`over the combination of Breivik II, Catchpole, Budzinski, Fricke, Randolph
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`and Sampalis I.
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`5.
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`In early 2006, I was employed by Aker Seafood Antarctic AS. As
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`part of Aker Seafood Antarctic AS, I started the process to develop a method of
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`making krill oil from krill meal. This work eventually led to the formation of Aker
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`BioMarine AS in late 2006 to commercialize krill oil production. The other two
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`inventors, Inge Bruheim and Daniele Mancinelli were employed by a different
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`company, Natural ASA, which was acquired by the Aker group for its experience
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`in nutraceutical products. I began interacting with the other inventors and
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`individuals at Natural ASA prior to the acquisition on aspects related to krill oil
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`extraction processes and specifications that are reflected in the claims.
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`3
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`AKER EXHIBIT 2001 PAGE 0003
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`6.
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`In 2004, Aker Seafoods obtained a trial license from CCAMLR
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`(Commission for the Conservation of Antarctic Marine Living Resources) for
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`harvesting Euphausia superba in Antarctica with the F/T Atlantic Navigator.
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`Operation of the Atlantic Navigator in Antarctica for the 2004 and 2005 is
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`described in Ex. 2002 which is a report by scientific observers that were on board
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`the Atlantic Navigator for part of the fishing season. The krill meal used for the
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`extractions described below was produced on May 6, 2005, shortly after the time
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`periods on which the observers were on the ship. The predominant krill species
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`caught in these area is Euphausia superba, which is consistent with the size of the
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`krill described in Ex. 2002.
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`7.
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`In 2005, I initially presented the idea of ethanol extraction of krill oil
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`from krill meal to Kjell Inge Rokke, the owner of Aker Seafood. As part of this
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`project, analysis of materials such as krill meal and krill oil were contracted to
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`Fiskeriforskning (the Norwegian Institute of Fisheries and Aquaculture Research).
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`The krill meal used for extraction of krill oil is described in Ex. 2003, “F/T
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`Atlantic Navigator 2004-2005” which is a report prepared by Fiskeriforskning and
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`which bears the date of December 23, 2005. Ex. 2004 is a screenshot of the
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`internal metadata for the report provided as Ex. 2003. This metadata indicates that
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`the report provided as Ex. 2004 was created and last modified on January 27, 2006.
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`The author of Ex. 2003 is Eyolf Langmyhr of Fiskeriforskning. I stored a copy of
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`AKER EXHIBIT 2001 PAGE 0004
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`this file as a corporate record on the hard drive of my computer and the copy
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`provided is true and correct copy of the report. The dates of the report are
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`consistent with my memory of the events.
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`8.
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`Sections 6.1 and 6.2 of Ex. 2003 (p. 0022-23) describe production and
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`sampling of the krill meal during different production steps. The Atlantic
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`Navigator was equipped with a standard compact fish meal factory. The krill meal
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`was produced by a standard meal process where fresh krill is brought on board the
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`ship, cooked, pressed and decanted, and then dried to provide the krill meal. The
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`krill meal had a reduced particle size as compared to the fresh krill and was a
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`powder as discussed below. Heating of the krill material sufficient to denature
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`lipases and phospholipases occurs at the cooking stage prior to decanting/pressing.
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`This meal is the same meal described in Example 1 of the ‘169 Patent (Ex. 1001 at
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`pp. 0034-35) and Example 1 of the priority document U.S. Prov. Appl. 60/920,483
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`filed March 28, 2007 (Ex. 1005 at pp. 0023-26).
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`9.
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`In the spring of 2006, I contacted the company Fresenius Kabi to
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`discuss extracting krill containing phospholipids. I chose Fresenius Kabi as a
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`potential partner due to their expertise in extracting phospholipids from egg yolk.
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`During the project and my interaction with Fresenius Kabi, I produced and saved
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`notes as Microsoft Word documents. Ex. 2005 is a copy of a Microsoft Word
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`document containing my notes from a meeting with Fresenius Kabi on May 5,
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`AKER EXHIBIT 2001 PAGE 0005
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`2006. Ex. 2006 is the certified Norwegian to English translation of Ex. 2005. Ex.
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`2007 is a screenshot of the internal metadata for Ex. 2005 showing that Ex. 2005
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`was created by me on May 5, 2006 and last modified on May 8, 2006. I stored this
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`document as a corporate record on the hard drive of my computer and the copy
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`provided is true and correct copy of the document. The dates of the document are
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`consistent with my memory of the events. These notes reference an initial
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`extraction of krill meal and plans to run a pilot scale extraction on several hundred
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`kilograms of krill meal which we provided to Fresenius Kabi for extraction.
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`10. Ex. 2008 is a draft of an agreement I participated in preparing which
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`describes the relationship with Fresenius Kabi and which I maintained as a Word
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`Document in my electronic files. Ex. 2009 is a screenshot of the internal metadata
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`for Ex. 2008 showing that Ex. 2008 was created by me on June 19, 2006 and last
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`modified on December 8, 2006. I stored this document as a corporate record on the
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`hard drive of my computer and the copy provided is true and correct copy of the
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`document. The dates of the document are consistent with my memory of the
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`events. This document further demonstrates that we recognized that ethanol could
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`be used to extract a phospholipid-containing krill oil from krill meal and the
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`resulting oil used for a variety of purposes. All oil produced was intended to be the
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`property of Aker Seafoods.
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`6
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`AKER EXHIBIT 2001 PAGE 0006
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`11. The pilot scale extraction referenced in Exs. 2005 and 2006 was
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`conducted on June 6, 2006 at my direction on krill meal provided by Aker
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`Seafoods. Ex. 2010 is a copy of a Microsoft Word document containing my notes
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`from a meeting with Fresenius Kabi on June 6, 2006. Ex. 2011 is the certified
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`Norwegian to English translation of Ex. 2010. Ex. 2012 is a screenshot of the
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`internal metadata for Ex. 2010 showing that Ex. 2010 was created on June 27,
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`2006 and last modified on June 27, 2006, which is when I made the Microsoft
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`Word Document containing the notes of the earlier meeting. I stored this document
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`as a corporate record on the hard drive of my computer and the copy provided is
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`true and correct copy of the document. The dates of the document are consistent
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`with my memory of the events.
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`12.
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`In this pilot scale production run, approximately 3150 kg of krill meal
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`(a denatured krill product) produced on board the Atlantic Navigator in May 2005
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`was extracted with ethanol. I should point out that there is a typographic error in
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`the notes which indicates that the krill meal was produced on 06.05.06. This date
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`is actually 06.05.05 or 6th of May, 2005, as correctly stated in Ex. 2013 discussed
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`below and as referenced in Ex. 2003 Table 19. As indicated in my notes, we
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`produced several hundred kilograms of a polar krill oil suitable for encapsulation
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`and further concentration. Samples of this oil were provided to Fiskeriforskning
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`for analysis.
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`7
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`AKER EXHIBIT 2001 PAGE 0007
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`13. Ex. 2013 is the Fiskeriforskning analysis of the ethanol extracted krill
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`meal oil from the pilot scale extraction at Fresenius Kabi which was conducted at
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`my direction. This report bears the date of September 14, 2006. I maintained a
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`copy of this report in my electronic files as a Microsoft Word Document. Ex. 2014
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`is a screenshot of the internal metadata for the report provided as Ex. 2013. This
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`metadata indicates that the report provided as Ex. 2013 was created on August 23,
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`2006 and last modified on September 14, 2006. The author of Ex. 2013 is Eyolf
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`Langmyhr of Fiskeriforskning and I am identified as the employer. I stored a copy
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`of the document as a corporate record on the hard drive of my computer and the
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`copy provided is true and correct copy of the document. The dates of the
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`document are consistent with my memory of the events.
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`14. As stated in the report in the report at page 0005, “Krill meal, 3210 kg
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`(107 bags á 30 kg) produced on board F/V Atlantic Navigator 06.05.05, was
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`extracted with ethanol at Fresenius Kabi, Kungsängen, Sweden.” This report
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`correctly identifies the date of production of the krill meal from which the oil was
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`extracted as the 6th of May, 2005. Since the extraction of the meal occurred in
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`June 2006 and the meal was produced in May 2005 the meal had been stored after
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`heat treatment for 13 months. Photographs of the krill meal before and after
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`extraction are provided at page 0005 as well as an analysis of the composition of
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`the krill oil in Table 3, p. 0007. As analyzed by Fiskeriforskning the krill oil
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`AKER EXHIBIT 2001 PAGE 0008
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`contained 25.3% w/w phosphatidylcholine, 6.2% w/w lysophosphatidylcholine,
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`and 36.9% w/w total polar lipids. This data is provided in Table 8 of the ‘169
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`Patent (Ex. 1001, p. 0036) and at page 0028 of Ex. 1005.
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`15. Together, these documents establish that by at least as early as
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`September 14, 2006, we had developed a method of extracting krill oil with a polar
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`solvent (specifically ethanol) from freshly harvested krill treated to denature
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`lipases and phospholipases in the krill (specifically krill meal produced by cooking
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`and drying the krill) on a ship and then stored for 13 months prior to the extraction.
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`As indicated in my notes (Ex. 2011), the extracted oil was suitable for both
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`encapsulation and for further processing to concentrate the phospholipids.
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`16.
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`I have been informed that the earliest possible priority date for Breivik
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`II (Ex. 1037) is November 16, 2006, which is approximately two months after
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`September 14, 2006. Breivik II discloses processes where fresh krill is heated and
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`then extracted with a polar solvent to provide krill oil containing phospholipids.
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`17. The evidence and documents discussed above demonstrate that we
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`conceived and reduced the entire invention to practice before the November 16,
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`2006 priority date of Breivik II and in any event conceived and reduced to practice
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`at least as much of the claimed invention as is disclosed in Breivik II. The
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`following claim chart which I have been provided and adopt matches the evidence
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`in the Exhibits discussed above with the claim features and provides a comparison
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`AKER EXHIBIT 2001 PAGE 0009
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`to Breivik II. I have been informed that we are only required to show as much as
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`what is taught of the claimed invention by Breivik II in order to remove it as a
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`prior art reference. This chart shows that before November 16, 2006, we had
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`completed at least as much of the invention as is disclosed in Breivik II and
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`specifically identifies the relevant evidence in relation to the disclosure of Breivik
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`II. While I have been informed that we are only required to show as much as what
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`is taught in Breivik II in order to remove it as a prior art reference, I further have
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`been informed that Rimfrost’s expert, Dr. Tallon, has admitted in his Declaration
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`for this proceeding and in previous proceedings that a person of ordinary skill in
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`the art could easily manipulate extraction conditions to alter the composition of
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`krill oil and that the krill oil components listed in the claims are the natural
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`components of krill oil. For example, I have been informed that in Ex. 1006, Dr.
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`Tallon states:
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`72. From my experience and knowledge, and as is apparent from the
`literature cited here, the krill oil lipid components described and claimed in
`the ‘169 Patent are known to the POSITA as natural lipid components in the
`krill oil that can be extracted using conventional solvents and established
`methods that were also known to a POSITA. For example, Tanaka (Exhibit
`1015, see ¶¶ 352-358, below) discloses a process for extracting and
`separating out, if desired, factions which are (i) predominately neutral lipids,
`(ii) mixtures of neutral and polar lipids, and (iii) predominately polar lipids.
`Tanaka, pp. 422-423, Exhibit 1015, pp. 0006-0007 and Figure 7.
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`10
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`AKER EXHIBIT 2001 PAGE 0010
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`Applying this logic, a person of ordinary skill in the art would have known that
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`once our process of extracting krill oil from stored denatured krill material had
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`been described, the oil could be expected to contain the components identified in
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`the claims or the process could be further modified to provide the components
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`identified in the claims.
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`‘169 Claims
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`Evidence of Conception
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`Breivik II
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`and Reduction to Practice
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`1. A method of
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`Ex. 2011 – notes describe
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`Breivik II generally
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`production of krill oil
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`extraction of krill oil from
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`discloses extraction of a
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`comprising:
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`krill meal. See p. 0002
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`lipid fraction (i.e., krill
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`Ex. 2013 – analysis of krill
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`oil) from fresh krill. p.
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`oil obtained from extraction
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`0003, l. 29-31.
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`of krill meal. See p. 0005-8.
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`a) providing krill;
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`Ex. 2003 – report K300
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`Breivik II discloses
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`describes production and
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`using fresh krill. See. P.
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`analysis of krill meal on the
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`0003-0004.
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`Atlantic Navigator. See
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`0022-24.
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`11
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`AKER EXHIBIT 2001 PAGE 0011
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`b) treating said krill to
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`Ex. 2003 – report K300
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`Breivik II describes a
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`denature lipases and
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`describes analysis of krill
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`short heat treatment
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`phospholipases in said
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`meal made by a traditional
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`step that may inactivate
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`krill to provide a
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`meal process where krill is
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`krill digestive enzymes.
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`denatured krill product;
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`brought on board ship,
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`See p. 0010, l. 1-12.
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`cooked, decanted and dried;
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`this process denatures
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`lipases and phospholipases
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`to provide a denatured krill
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`product. See p. 0022-24.
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`c) storing said
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`Ex. 2011 and Ex. 2013 – the
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`Breivik II does not
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`denatured krill product
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`denatured krill product (in
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`teach storage of the
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`for a storage period of
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`this case krill meal)
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`heat treated material.
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`from 1 to 24 months;
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`produced on board the
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`Atlantic Navigator in May
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`2005 stored for 13 months.
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`See Ex. 2011 at 0002 and
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`Ex. 2013 at 0005-8.
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`12
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`AKER EXHIBIT 2001 PAGE 0012
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`d) after said storage
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`Ex. 2011 and Ex. 2013 – the
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`Breivik II does not
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`period, extracting oil
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`denatured krill product (krill
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`teach extracting oil
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`from said denatured
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`meal) was extracted with a
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`from a denatured krill
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`krill product with a
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`polar solvent (ethanol) to
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`product that has been
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`polar solvent to provide
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`provide a phospholipid-rich
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`stored for from 1-24
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`a krill oil with from
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`krill oil. The krill oil
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`months.
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`about 3% to about 15%
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`contained 25.3% w/w
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`ether phospholipids
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`phosphatidylcholine, 6.2%
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`Breivik II describes
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`w/w of said krill oil
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`lysophosphatidylcholine and
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`extraction from fresh
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`astaxanthin esters in
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`117 mg/kg astaxanthin
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`krill with polar solvents
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`amount of greater than
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`esters. See Ex. 2011 at 0002
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`such as ethanol. See p.
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`about 100 mg/kg of said
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`and Ex. 2013 at 0005-8. As
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`0007-0008.
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`krill oil.
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`admitted by Dr. Tallon, the
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`Breivik II does not
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`ether phospholipids are
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`disclose ether
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`natural components of the
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`phospholipid content of
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`krill oil which can be
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`the extracted krill oil or
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`extracted in desired amounts
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`the astaxanthin content
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`by known methods.
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`of the extracted krill oil.
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`Based on prior art
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`13
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`AKER EXHIBIT 2001 PAGE 0013
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`Neptune Krill Oil
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`specification, Breivik
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`indicates that
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`astaxanthin ester should
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`be greater than or equal
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`to 1000 mg/kg. See p.
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`0011, l. 30.
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`2. The method of claim
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`Ex. 2003 – the denatured
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`Breivik II discloses that
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`1, wherein said steps a
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`krill product (krill meal) was
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`its methods are suitable
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`and b are performed on
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`produced on board the ship.
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`for use on a ship. See p.
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`a ship.
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`See p. 0022-24.
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`0003, l. 37.
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`3. The method of claim
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`Ex. 2003 – the krill meal
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`Breivik II describes a
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`1, wherein said treating
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`was produced by cooking
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`short heat treatment
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`comprises heating.
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`and drying krill to denature
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`step that may inactivate
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`lipases and phospholipases
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`krill digestive enzymes.
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`by heat. See p. 0022-24.
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`See p. 0010, l. 1-12.
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`4. The method of claim
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`Ex. 2003 and Ex. 2013 – the
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`Breivik II does not
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`1, wherein said
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`krill denatured krill product
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`describe extraction
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`used for extraction of krill
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`14
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`AKER EXHIBIT 2001 PAGE 0014
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`denatured krill product
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`oil was krill meal. See Ex.
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`from a denatured krill
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`is a krill meal.
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`2003 p. 0022-24 and Ex.
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`meal.
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`2013 0005-8.
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`5. The method of claim
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`Ex. 2003 – krill meal was
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`Breivik II discloses
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`1, wherein said krill is
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`produced on board the ship
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`using fresh krill. See. P.
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`freshly harvested.
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`Atlantic Navigator from
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`0003-0004.
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`freshly harvested krill. See.
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`p. 0005.
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`6. The method of claim
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`Ex. 2011 – the extracted oil
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`Breivik II does not
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`1, further comprising
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`was suitable for
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`disclose encapsulation.
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`encapsulating said krill
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`encapsulation. See p. 0003.
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`oil.
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`7. The method of claim
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`Ex. 2002 – The Atlantic
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`Breivik II discloses use
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`1, wherein said krill is
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`Navigator fished for
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`of fresh Euphausia
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`Antarctic krill.
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`Antarctic krill in the
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`superba, which is an
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`Antarctic Ocean in 2005,
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`Antarctic krill. See p.
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`which was used to make the
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`0007-0008, examples.
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`krill meal for extraction.
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`15
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`AKER EXHIBIT 2001 PAGE 0015
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`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
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`8. The method of claim
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`Ex. 2002 – Euphausia
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`Breivik II discloses use
`
`7, wherein said
`
`superba was the
`
`of fresh Euphausia
`
`Antarctic krill is
`
`predominant krill species
`
`superba. See p. 0007-
`
`Euphausia superba.
`
`targeted by the Atlantic
`
`0008, examples.
`
`Navigator and used to make
`
`the krill meal.
`
`9. The method of claim
`
`As admitted by Dr. Tallon,
`
`Breivik II does not
`
`1, wherein said krill oil
`
`the ether phospholipids are
`
`disclose the astaxanthin
`
`contains astaxanthin
`
`natural components of krill
`
`content of the extracted
`
`esters in an amount of
`
`oil which can be extracted in
`
`krill oil. Based on prior
`
`greater than about 200
`
`desired amounts by known
`
`art Neptune Krill Oil
`
`mg/kg of said krill oil.
`
`methods.
`
`specification, Breivik
`
`indicates that
`
`astaxanthin ester should
`
`be greater than or equal
`
`to 1000 mg/kg. See p.
`
`0011, l. 30.
`
`16
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0016
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`12. A method of
`
`Ex. 2011 – notes describe
`
`Breivik II generally
`
`production of krill oil
`
`extraction of krill oil from
`
`discloses extraction of a
`
`comprising:
`
`krill meal. See p. 0002
`
`lipid fraction (i.e., krill
`
`Ex. 2013 – analysis of krill
`
`oil) from fresh krill. p.
`
`oil obtained from extraction
`
`0003, l. 29-31.
`
`of krill meal. See p. 0005-8.
`
`a) obtaining a denatured
`
`Ex. 2003 – report K300
`
`Breivik II describes a
`
`krill product produced
`
`describes analysis of krill
`
`short heat treatment
`
`by treating freshly
`
`meal made by traditional
`
`step that may inactivate
`
`harvested krill to
`
`meal process where krill is
`
`krill digestive enzymes.
`
`denature lipases and
`
`brought on board ship,
`
`See p. 0010, l. 1-12.
`
`phospholipases in said
`
`cooked, decanted and dried;
`
`Breivik II does not
`
`krill and that has been
`
`this process denatures
`
`teach storage of the
`
`stored from 1 to 24
`
`lipases and phospholipases
`
`heat treated material.
`
`months; and
`
`to provide a denatured krill
`
`product. See p. 0022-24.
`
`
`
`Ex. 2011 and Ex. 2013 – the
`
`denatured krill product (in
`
`17
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0017
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`this case krill meal)
`
`produced on board the
`
`Atlantic Navigator in May
`
`2005 stored for 13 months.
`
`See Ex. 2011 at 0002 and
`
`Ex. 2013 at 0005-8.
`
`b) extracting oil from
`
`Ex. 2011 and Ex. 2013 – the
`
`Breivik II does not
`
`said denatured krill
`
`denatured krill product (krill
`
`teach extracting oil
`
`product that has been
`
`meal) was extracted with a
`
`from a denatured krill
`
`stored from 1 to 24
`
`polar solvent (ethanol) to
`
`product that has been
`
`months with a polar
`
`provide a phospholipid-rich
`
`stored for from 1-24
`
`solvent to provide a
`
`krill oil. The krill oil
`
`months.
`
`krill oil with from about
`
`contained 25.3% w/w
`
`Breivik II describes
`
`3% to about 15% ether
`
`phosphatidylcholine, 6.2%
`
`extraction from fresh
`
`phospholipids w/w of
`
`lysophosphatidylcholine and
`
`krill with polar solvents
`
`said krill oil astaxanthin
`
`117 mg/kg astaxanthin
`
`such as ethanol. See p.
`
`esters in amount of
`
`esters. See Ex. 2011 at 0002
`
`0007-0008.
`
`greater than about 100
`
`and Ex. 2013 at 0005-8.
`
`Breivik II does not
`
`mg/kg of said krill oil.
`
`
`
`disclose ether
`
`18
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0018
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`As admitted by Dr. Tallon,
`
`phospholipid content of
`
`the ether phospholipids are
`
`the extracted krill oil or
`
`natural components of the
`
`the astaxanthin content
`
`krill oil which can be
`
`of the extracted krill oil.
`
`extracted in desired amounts
`
`Based on prior art
`
`by known methods.
`
`Neptune Krill Oil
`
`specification, Breivik
`
`indicates that
`
`astaxanthin ester should
`
`be greater than or equal
`
`to 1000 mg/kg. See p.
`
`0011, l. 30.
`
`13. The method of
`
`Ex. 2003 – the krill meal
`
`Breivik II describes a
`
`claim 12, wherein said
`
`was produced by cooking
`
`short heat treatment
`
`treating comprises
`
`and drying krill to denature
`
`step that may inactivate
`
`heating.
`
`lipases and phospholipases
`
`krill digestive enzymes.
`
`by heat. See p. 0022-24.
`
`See p. 0010, l. 1-12.
`
`14. The method of
`
`Ex. 2003 and Ex. 2013 – the
`
`Breivik II does not
`
`claim 12, wherein said
`
`krill denatured krill product
`
`describe extraction
`
`19
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0019
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`denatured krill product
`
`used for extraction of krill
`
`from a denatured krill
`
`is a krill meal.
`
`oil was krill meal. See Ex.
`
`meal.
`
`2003 p. 0022-24 and Ex.
`
`2013 p. 0005-8.
`
`15. The method of
`
`Ex. 2003 – krill meal was
`
`Breivik II discloses
`
`claim 12, wherein said
`
`produced on board the ship
`
`using fresh krill. See. P.
`
`krill is freshly
`
`Atlantic Navigator from
`
`0003-0004.
`
`harvested.
`
`freshly harvested krill. See.
`
`p. 0005.
`
`16. The method of
`
`Ex. 2011 – the extracted oil
`
`Breivik II does not
`
`claim 12, further
`
`was suitable for
`
`disclose encapsulation.
`
`comprising
`
`encapsulation. See p. 0003.
`
`encapsulating said krill
`
`oil.
`
`17. The method of
`
`Ex. 2002 – The Atlantic
`
`Breivik II discloses use
`
`claim 12, wherein said
`
`Navigator fished for
`
`of Euphausia superba,
`
`krill is Antarctic krill.
`
`Antarctic krill in the
`
`which is an Antarctic
`
`Antarctic Ocean in 2005,
`
`krill. See p. 0007-0008,
`
`examples.
`
`20
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0020
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`which was used to make the
`
`krill meal for extraction.
`
`18. The method of
`
`Ex. 2002 – Euphausia
`
`Breivik II discloses use
`
`claim 17, wherein said
`
`superba was the
`
`of Euphausia superba.
`
`Antarctic krill is
`
`predominant krill species
`
`See p. 0007-0008,
`
`Euphausia superba.
`
`targeted by the Atlantic
`
`examples.
`
`Navigator and used to make
`
`the krill meal.
`
`19. The method of
`
`As admitted by Dr. Tallon,
`
`Breivik II does not
`
`claim 12, wherein said
`
`the ether phospholipids are
`
`disclose the astaxanthin
`
`krill oil contains
`
`natural components of the
`
`content of the extracted
`
`astaxanthin esters in an
`
`krill oil which can be
`
`krill oil. Based on prior
`
`amount of greater than
`
`extracted in desired amounts
`
`art Neptune Krill Oil
`
`about 200 mg/kg of said
`
`by known methods.
`
`specification, Breivik
`
`krill oil.
`
`indicates that
`
`astaxanthin ester should
`
`be greater than or equal
`
`to 1000 mg/kg. See p.
`
`0011, l. 30.
`
`21
`
`
`
`
`
`
`AKER EXHIBIT 2001 PAGE 0021
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`20. The method of
`
`Ex. 2013 – Table 3 indicates
`
`Breivik II discloses a
`
`claim 12, wherein said
`
`that the total phospholipids
`
`krill oil with 58%
`
`krill oil comprises at
`
`in the extracted krill oil
`
`phospholipids. See p.
`
`least 30% total
`
`were at least 34.2% w/w in
`
`0009, Example 7.
`
`phospholipids w/w of
`
`the krill oil (25.3
`
`said krill oil.
`
`(phosphatidylcholine) + 6.2
`
`(lysophosphatidylcholine) +
`
`2.7
`
`(phosphatidylethanolamine))
`
`
`
`
`
`
`18.
`
`I hereby declare that the conception and reduction to practice were
`
`performed in and around the countries of Norway and Sweden, both WTO member
`
`countries as of 1995. Therefore, I am informed that we are entitled to the same
`
`rights of priority in the United States with respect to the invention as if it had been
`
`made in the United States.
`
`19.
`
`I further declare that all statement made herein of my own knowledge
`
`are true and that all statements made on information and belief are believed to be
`
`true; and further that these statements were made with the knowledge that willful
`
`false statements and the like so made are punishable by fine or imprisonment, or
`
`
`
`22
`
`AKER EXHIBIT 2001 PAGE 0022
`
`
`
`
`
`both, under section 1001 of title 18 of the United States Code, and that such willful
`
`Inter Partes Review of US 9,644,169
`Ex. 2001, Tilseth Declaration
`
`false statements may jeopardize the validity of the application or any patent issued
`
`thereon.
`
`
`
`
`
`
`
`23
`
`AKER EXHIBIT 2001 PAGE 0023
`
`
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