Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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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. Jacek Jaczynski
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`AKER EXHIBIT 2015 PAGE 0001
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`Ex. 2015, Jaczynski Declaration
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`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. Jacek Jaczynski
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`1
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`AKER EXHIBIT 2015 PAGE 0001
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`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
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`I, Jacek Jaczynski, Ph.D., declare as follows:
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`1. My experience and qualifications are summarized in my curriculum vitae, a
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`copy of which is attached hereto as Appendix A.
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`2. I have been asked by counsel to review relevant materials and render my
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`expert opinion in connection with technical matters related to the petition for inter
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`partes review of U.S. Patent 9,644,169 ("the '169 patent"). I understand that the
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`parties involved in this IPR proceeding are the Petitioner, Rimfrost AS
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`("Rimfrost"), and the Patent Owner, Aker BioMarine Antarctic AS ("Aker").
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`3. I am being compensated for my time in connection with developing and
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`rendering my opinions in this matter at the rate of $500/hour. However, my
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`compensation is not dependent on the outcome of this proceeding. I am not an
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`employee, consultant, or contractor of either party.
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`4. I understand that Rimfrost is seeking cancellation of various claims of the
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`'169 patent based on the argument that such claims would have been obvious in
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`view of the teachings of the prior art. I understand that the specific grounds are as
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`follows:
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`2
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`AKER EXHIBIT 2015 PAGE 0002
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`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski 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, Budziński,
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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, Budziński, Fricke, Randolph
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`and Sampalis I.
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`5.
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`In order to render my opinions in this matter, I have reviewed the following
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`materials:
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` The '169 patent (Ex. 1001);
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` The declaration of Rimfrost's expert, Dr. Tallon (Ex. 1006) and the
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`following Exhibits referred therein: Exs. 1008, 1009, 1010, 1011, 1012,
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`1032, 1033, 1035, 1036, 1037 and 1038;
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` The Declaration of Dr. Snorre Tilseth (Ex. 2001) and the associated Exs.
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`2002-2014;
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` Exs. 2016-2018 discussed herein;
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` Excerpts from Ex. 2019 (Tallon Deposition Testimony).
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` Any other materials referenced directly or indirectly in my
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`declaration.
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`AKER EXHIBIT 2015 PAGE 0003
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`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
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`Throughout this Declaration, I refer to my understanding of certain legal
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`6.
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`standards. I have been informed of these legal standards by Aker’s attorneys. I am
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`not an attorney, and I am relying only on instructions from Akers’ attorneys for
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`these legal standards. I have applied these understandings in my analysis as
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`detailed below.
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`I. RELEVANT FIELD AND DESCRIPTION OF PERSON HAVING
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`ORDINARY SKILL IN THE ART
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`7. The relevant field for the '169 patent includes extraction of lipids from
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`natural sources. I consider myself to be an expert in the relevant field.
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`8. I understand that Rimfrost has argued that as of the priority date of the '169
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`Patent, a Person of Ordinary Skill in the Art (POSITA) would have held an
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`advanced degree in marine sciences, biochemistry, organic (especially lipid)
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`chemistry, chemical or process engineering, or associated sciences with
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`complementary understanding, either through education or experience, of organic
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`chemistry and in particular lipid chemistry, chemical or process engineering,
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`marine biology, nutrition, or associated sciences; and knowledge of or experience
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`in the field of extraction. In addition, a POSITA would have had at least five years'
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`applied experience. For the purposes of this proceeding, I will accept that
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`definition of a POSITA.
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`AKER EXHIBIT 2015 PAGE 0004
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`II. CLAIM CONSTRUCTION
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`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
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`9. I understand that the meanings of the claim terms are to be understood from
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`the perspective of a POSITA. I understand that claim construction begins with the
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`ordinary and customary meanings of the terms used in the claims. I further
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`understand that the meanings of terms used in the claims should be understood
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`primarily in view of the intrinsic record, including the specification and file
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`history. I further understand that IPR proceedings on petitions filed after
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`November 13, 2018 do not utilize the broadest reasonable broadest reasonable
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`interpretation standard.
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`10. I understand that the first step in analyzing Rimfrost's grounds for
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`unpatentability is to determine the meaning of the terms in the involved claims of
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`the '169 patent.
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`11. Rimfrost offer the following construction of terms contained in the claims:
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` “krill oil” means “lipids extracted from krill.”
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` “astaxanthin” means “the astaxanthin molecule having the structure shown
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`below and includes both cis- and trans forms of the molecule:
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`AKER EXHIBIT 2015 PAGE 0005
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`Inter Partes Review of US 9,644,169
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` “astaxanthin esters” means “astaxanthin molecules in which one or both of
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`the hydroxyl groups are replaced by a fatty acid tail connected to the
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`astaxanthin molecule through an ester bond.”
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` “about” extends the number it modifies to include the range provided by
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`rounding, and means “a range about the number it modifies which when
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`rounded provides the number it modifies.”
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` “to denature lipases and phospholipases” means “to alter the conformational
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`structure of lipases and phospholipases to reduce lipid and phospholipid
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`decomposition.”
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` “freshly harvested krill” means “recently caught krill that has not
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`significantly degraded.”
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` “polar solvent” means “solvent or mixtures of solvents capable of extracting
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`polar lipids comprising phospholipids.”
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` “krill meal” means “processed krill, with reduced water content, from which
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`krill oil can be extracted.”
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`AKER EXHIBIT 2015 PAGE 0006
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`Inter Partes Review of US 9,644,169
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`It is my opinion that the terms of the claims should be given their plain and
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`12.
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`ordinary meaning. However, if the Board does decide to construe the terms “to
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`denature lipases and phospholipases” and “krill meal,” it is my opinion that the
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`constructions offered by Rimfrost are incorrect.
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`13. Rimfrost construes “to denature lipases and phospholipases” to mean “to
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`alter the conformational structure of lipases and phospholipases to reduce lipid and
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`phospholipid decomposition." Dr. Tallon cites to Hawley’s Condensed Chemical
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`Dictionary for the definition of denaturation which is “A change in the molecular
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`structure of globular proteins that may be induced by bringing a protein solution to
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`its boiling point or by exposing it to acids or alkalies, or to various detergents.” I
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`agree that denaturation involves conformational changes in the protein that reduces
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`its activity. Thus, in my opinion, a better construction of “to denature lipases and
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`phospholipases” is “to alter the conformational structure of lipases and
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`phospholipases to reduce the activity of the lipases and phospholipases."
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`14. Rimfrost construes “krill meal” as “processed krill with reduced water
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`content from which krill oil is extracted.” This construction is not consistent with
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`the ordinary and customary meaning of the term “krill meal” which also includes
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`the aspect of particle size reduction to form a powder in addition to a reduced
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`water content. The key aspect of all meal products is that they are powders. The
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`AKER EXHIBIT 2015 PAGE 0007
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`Cambridge English Dictionary defines the word “meal” as “a substance that has
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`Ex. 2015, Jaczynski Declaration
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`been crushed to make a rough powder, especially plant seeds crushed to make flour
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`or for animal food” and gives corn meal and bone meal as examples. See Ex. 2016
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`which is screen shot of the definition from the Cambridge English Dictionary.
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`This definition is consistent with the normal usage of the term “meal” and a “krill
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`meal” as understood by a POSITA is “a krill powder resulting from the processing
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`of krill.” This definition is consistent with the description of krill meal in, for
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`example, Grantham (Ex. 1032) which at p. 0053 describes krill meal as “a red to
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`yellow free flowing product, with a faint shrimp like odour and flavour.” The free
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`flowing product is a powder. While Dr. Tallon refers to Grantham in his
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`construction of the term “krill meal,” he does not refer this excerpt from Grantham.
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`15.
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`In his Declaration (Ex. 1006), Dr. Tallon provides an examination of use of
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`the term “krill meal” in the ‘169 Patent specification at paragraphs 134-152. In
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`each case a crushing or grinding process is utilized. For example, the ‘169 patent
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`describes the use of presses, such as screw presses, which crush the krill both
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`reducing particle size and removing water:
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`Fresh krill was pumped from the harvesting trawl directly into an indirect
`steam cooker, and heated to 90 C. Water and a small amount of oil were
`removed in a screw press before ethoxyquin (antioxidant) was added and the
`denatured meal was dried under vacuum at a temperature not exceeding 80
`C. After 19 months storage in room temperature, a sample of the denatured
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`AKER EXHIBIT 2015 PAGE 0008
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`Inter Partes Review of US 9,644,169
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`meal was extracted in two steps with supercritical CO2 in laboratory scale at
`a flow rate of 2 ml/min at 100 C and a pressure of 7500 psi.
`Ex. 1001 at p. 0041. The specification also describes wet pressing which is a
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`crushing process that reduces particle size: “In some embodiments, freshly caught
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`krill is wet pressed to obtain oil and meal.” Id. at 0030. The specification also
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`describes grinding krill: “In some embodiments, the denaturation step comprises
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`heating said fresh krill after grinding.” Id. at 0027. The specification also refers
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`specifically to krill meal as a powder: “Krill lipids were extracted from krill meal
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`(a food grade powder) using supercritical fluid extraction with co-solvent.” Id. at
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`0041. Thus, the use of the term “krill meal” in the specification is consistent with
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`the plain and ordinary usage of meal which as discussed above is a substance that
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`has been crushed to make a powder.
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`16. Dr. Tallon’s proposed construction is overbroad and ignores the plain and
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`ordinary meaning of the term “krill meal” and how that term is understood and
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`used by a POSITA. For example, under Dr. Tallon’s construction, a whole dried
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`krill could be a “krill meal” because the whole dried krill has a reduced water
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`content. However, no POSITA applying the common usage of the term “krill
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`meal” would consider whole dried krill to be a “krill meal.” One convenient place
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`to refer to on usage of terms on different krill products is Section 4 of the table of
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`contents of Budziński. Ex. 1008 at 0005. Section 4 of the table of contents (and
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`AKER EXHIBIT 2015 PAGE 0009
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`the individual section in Budziński) lists different products resulting from krill
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`processing. The table of contents is easy to refer to for how krill-related terms are
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`used and is reproduced here:
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`As can be seen, krill meal is recognized as a different product than, for example,
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`frozen, boiled-frozen, and dried krill, minced products, and whole tail meat.
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`Again, this usage is consistent with both the ordinary usage and how the term krill
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`meal is used in the ‘169 specification. Here, I note that minced products are
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`generally paste products, not powders as described at p. 0017 to 0018 of
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`Budziński. Under Dr. Tallon’s definition, virtually any of these products, which are
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`clearly not meals under the ordinary usage of the term, would be a “krill meal” so
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`long as they have a reduced water content. Dr. Tallon’s definition is completely
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`inconsistent with both ordinary usage of the term “krill meal” and usage of that
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`AKER EXHIBIT 2015 PAGE 0010
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`term in the ‘169 specification. The plain and ordinary meaning of the term “krill
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`meal” should be used which is “a krill powder resulting from the processing of
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`krill.”
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`III. ANALYSIS OF RIMFROST'S PROPOSED GROUNDS FOR
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`INVALIDITY
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`17. I understand that a claim of an issued patent can be found to be invalid if the
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`claim would have been obvious in view of the prior art. I understand that this
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`determination is made from the perspective of a person having ordinary skill in the
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`art who is presumed to be aware of all prior art.
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`18. I further understand that the determination of obviousness involves
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`consideration of the scope and content of the prior art, the differences between the
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`prior art and the claims, and the level of ordinary skill in the art. I also understand
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`that secondary factors of non-obviousness can be considered, such as commercial
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`success, long-felt but unsolved needs, failure of others, industry praise, etc.
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`19.
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`I understand that a POSITA provides a reference point from which the prior
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`art and claimed invention should be viewed. This reference point prevents one
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`from using his or her own insight or hindsight in deciding whether a claim is
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`AKER EXHIBIT 2015 PAGE 0011
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`obvious. Thus, “hindsight reconstruction” cannot be used to combine references
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`together to reach a conclusion of obviousness.
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`20. I have been asked to give my opinions as to whether Claims 1-20 of the '169
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`Patent would have been obvious to a person having ordinary skill in the art in
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`accordance with the grounds set forth by Rimfrost in its petition.
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`21. Claims 1 and 12 of the '169 Patent are independent claims. Claims 2-11 of
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`the '169 Patent are all dependent on Claim 1, and claims 13-20 of the '169 Patent
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`are all dependent on Claim 12.
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`Independent Claim 1 reads as follows:
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`A method of production of krill oil comprising:
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`a) providing krill;
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`b) treating said krill to denature lipases and phospholipases in said
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`krill to provide a denatured krill product;
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`c) storing said denatured krill product for a storage period of from 1 to
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`24 months;
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`d) after said storage period, extracting oil from said denatured krill
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`product with a polar solvent to provide a krill oil with from about 3% to
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`12
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`AKER EXHIBIT 2015 PAGE 0012
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`about 15% ether phospholipids w/w of said krill oil astaxanthin esters in
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`amount of greater than about 100 mg/kg of said krill oil.
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`Independent Claim 12 reads as follows:
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`A method of production of krill oil comprising:
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`a) obtaining a denatured krill product produced by treating freshly
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`harvested krill to denature lipases and phospholipases in said krill and that
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`has been stored from 1 to 24 months; and
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`b) extracting oil from said denatured krill product that has been stored
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`from 1 to 24 months with a polar solvent to provide a krill oil with from
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`about 3% to about 15% ether phospholipids w/w of said krill oil astaxanthin
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`esters in amount of greater than about 100 mg/kg of said krill oil.
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`22. The first reference cited in each of Grounds 1 and 2 is Breivik II. As
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`explained below, it is my opinion that the inventors of the ‘169 Patent conceived
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`and reduced the invention to practice prior to the earliest possible priority date of
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`Breivik II. Since Grounds 1 and 2 both depend on Breivik II, removal of Breivik II
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`renders those grounds deficient.
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`23. Ground 1 advanced by Rimfrost applies to both Claims 1 and 12. Ground 2
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`advanced by Rimfrost applies to Claim 6, which is dependent on Claim 1 and
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`AKER EXHIBIT 2015 PAGE 0013
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`Claim 16 which is dependent on Claim 12. I understand that a group of references
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`cannot be found to render obvious a dependent claim if the group of references
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`does not render obvious the corresponding independent claim.
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`24. As explained below, even if Breivik II is considered to be prior art, it is my
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`opinion that the claims are not obvious over the combinations advanced by
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`Rimfrost in Grounds 1 or 2. Since as explained below I conclude that the cited
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`prior art does not invalidate Claims 1 and 12 of the '169 patent, the dependent
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`claims are not invalidated either.
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`A. Grounds 1 and 2 both fail because Breivik II is not prior art
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`25. I understand that Rimfrost asserts that Claims 1-5, 7-15, and 17-20 of the
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`'169 patent should be canceled as being obvious over the combination of Breivik
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`II, Catchpole, Budziński, Fricke and Randolph and that Claims 6 and 16 should be
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`canceled as being obvious over the combination of Breivik II, Catchpole,
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`Budziński, Fricke, Randolph and Sampalis I. I further understand, however, that
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`Breivik II is only citable as prior art if its priority date of November 16, 2006
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`precedes the date by which the inventors of the '169 patent had completed the
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`invention or at least so much of the claimed invention as is disclosed in Breivik II.
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`AKER EXHIBIT 2015 PAGE 0014
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`26. I understand that an invention is complete when it has been conceived and
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`reduced to practice. I understand that conception refers to formation in the mind of
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`the claimed invention. I understand that reduction to practice refers to the creation
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`of a working embodiment of the invention. I further understand that corroboration
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`of conception and reduction to practice are evaluated under a “rule of reason.”
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`Under the rule of reason, all pertinent evidence must be considered to determine if
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`an inventor’s story is credible. This includes documents created shortly after the
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`critical date. To establish an actual reduction to practice, a party must establish
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`that: (1) the inventor constructed an embodiment or performed a process that
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`satisfies the elements of the claim at issue, or at least as much as is shown in the
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`reference that is to be antedated; and (2) the inventor determined that the invention
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`would work for its intended purpose.
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`27. I have been presented with evidence which I agree shows that the inventors
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`of the '169 patent had conceived and actually reduced the claimed invention to
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`practice prior to November 16, 2006, or at least as much of the claimed invention
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`as is disclosed in Breivik II. The evidence is Exhibits 2001 to 2014 which includes
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`the Declaration of Dr. Snorre Tilseth and associated supporting documents.
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`AKER EXHIBIT 2015 PAGE 0015
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`28. I have been provided with the following claim chart, which includes Dr.
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`Snorre Tilseth's explanations as to how Exhibits 2002-2014 show at least as
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`much of the invention as disclosed in Breivik II.
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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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`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 traditional
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`step that may inactivate
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`AKER EXHIBIT 2015 PAGE 0016
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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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`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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`AKER EXHIBIT 2015 PAGE 0017
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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
`
`and Ex. 2013 at 0005-8. As
`
`0007-0008.
`
`krill oil.
`
`admitted by Dr. Tallon, the
`
`Breivik II does not
`
`ether phospholipids are
`
`disclose ether
`
`natural components of the
`
`phospholipid content of
`
`krill oil which can be
`
`the extracted krill oil or
`
`extracted in desired amounts
`
`the astaxanthin content
`
`by known methods.
`
`of the extracted krill oil.
`
`Based on prior art
`
`Neptune Krill Oil
`
`specification, Breivik
`
`indicates that
`
`astaxanthin ester should
`
`18
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0018
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`be greater than or equal
`
`to 1000 mg/kg. See p.
`
`0011, l. 30.
`
`2. The method of claim
`
`Ex. 2003 – the denatured
`
`Breivik II discloses that
`
`1, wherein said steps a
`
`krill product (krill meal) was
`
`its methods are suitable
`
`and b are performed on
`
`produced on board the ship.
`
`for use on a ship. See p.
`
`a ship.
`
`See p. 0022-24.
`
`0003, l. 37.
`
`3. The method of claim
`
`Ex. 2003 – the krill meal
`
`Breivik II describes a
`
`1, wherein said treating
`
`was produced by cooking
`
`short heat treatment
`
`comprises heating.
`
`and drying krill to denature
`
`step that may inactivate
`
`lipases and phospholipases
`
`krill digestive enzymes.
`
`by heat. See p. 0022-24.
`
`See p. 0010, l. 1-12.
`
`4. The method of claim
`
`Ex. 2003 and Ex. 2013 – the
`
`Breivik II does not
`
`1, wherein said
`
`krill denatured krill product
`
`describe extraction
`
`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 0005-8.
`
`19
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0019
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`5. The method of claim
`
`Ex. 2003 – krill meal was
`
`Breivik II discloses
`
`1, wherein said krill is
`
`produced on board the ship
`
`using fresh krill. See. P.
`
`freshly harvested.
`
`Atlantic Navigator from
`
`0003-0004.
`
`freshly harvested krill. See.
`
`p. 0005.
`
`6. The method of claim
`
`Ex. 2011 – the extracted oil
`
`Breivik II does not
`
`1, further comprising
`
`was suitable for
`
`disclose encapsulation.
`
`encapsulating said krill
`
`encapsulation. See p. 0003.
`
`oil.
`
`7. The method of claim
`
`Ex. 2002 – The Atlantic
`
`Breivik II discloses use
`
`1, wherein said krill is
`
`Navigator fished for
`
`of fresh Euphausia
`
`Antarctic krill.
`
`Antarctic krill in the
`
`superba, which is an
`
`Antarctic Ocean in 2005,
`
`Antarctic krill. See p.
`
`which was used to make the
`
`0007-0008, examples.
`
`krill meal for extraction.
`
`8. The method of claim
`
`Ex. 2002 – Euphausia
`
`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.
`
`20
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0020
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`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.
`
`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.
`
`21
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0021
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`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
`
`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.
`
`22
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0022
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`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
`
`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
`
`23
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0023
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`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
`
`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.
`
`24
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0024
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`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,
`
`which was used to make the
`
`examples.
`
`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.
`
`predominant krill species
`
`25
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0025
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`Antarctic krill is
`
`targeted by the Atlantic
`
`See p. 0007-0008,
`
`Euphausia superba.
`
`Navigator and used to make
`
`examples.
`
`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.
`
`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.
`
`the krill oil (25.3
`
`26
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0026
`
`
`
`Inter Partes Review of US 9,644,169
`Ex. 2015, Jaczynski Declaration
`
`phospholipids w/w of
`
`(phosphatidylcholine) + 6.2
`
`said krill oil.
`
`(lysophosphatidylcholine) +
`
`2.7
`
`(phosphatidylethanolamine))
`
`
`
`
`
`
`29. I agree with Dr. Tilseth's explanations in the foregoing claim chart. In my
`
`opinion, the referenced Exhibits as a whole establish that the inventors of the '169
`
`Patent had conceived and reduced to practice the subject matter described in
`
`Claims 1-20 of the ‘169 Patent prior to the November 16, 2006 filing date of the
`
`Breivik II reference.
`
`30. Furthermore, even if an argument could be made that the entire invention
`
`was not conceived and reduced to practice, at least as much of the claimed
`
`invention as is disclosed in Breivik
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