Inter Partes Review of US 9,816,046
`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
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`v.
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`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
`
`
`CASE IPR: IPR2020-01533
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`U.S. Patent No. 9,816,046 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
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`RIMFROST AS
`Petitioner
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS
`Patent Owner
`
`
`CASE IPR: IPR2020-01533
`
`U.S. Patent No. 9,816,046 B2
`
`Declaration of Dr. Jacek Jaczynski
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`AKER EXHIBIT 2015 PAGE 0001
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`Inter Partes Review of US 9,816,046
`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 9,816,046 ("the '046 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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`'046 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 9,816,046
`Ex. 2015, Jaczynski Declaration
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`Ground 1: Claims 1-10 are alleged to be obvious under 35 U.S.C. 103(a)
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`over the combination of Breivik II, Yoshitomi, Budziński, Fricke, Bottino II
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`and Sampalis I;
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`Ground 2: Claims 11 and 12 are alleged to be obvious under 35 U.S.C.
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`103(a) over the combination of Breivik II, Yoshitomi, Budziński, Fricke,
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`Bottino II, and Randolph;
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`Ground 3: Claims 13-19 are alleged to be obvious under 35 U.S.C. 103(a)
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`over the combination of Breivik II, Budziński, Fricke, Yoshitomi, Bottino II,
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`Randolph 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 '046 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 to therein: Exs. 1008, 1009, 1010, 1011, 1012,
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`1015, 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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`AKER EXHIBIT 2015 PAGE 0003
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` Exs. 2016-2018 discussed herein;
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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`6.
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`Throughout this Declaration, I refer to my understanding of certain legal
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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 '046 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 '046
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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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`AKER EXHIBIT 2015 PAGE 0004
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`chemistry and in particular lipid chemistry, chemical or process engineering,
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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`II. CLAIM CONSTRUCTION
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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 '046 patent.
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`11. Rimfrost offer the following construction of terms contained in the claims:
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`AKER EXHIBIT 2015 PAGE 0005
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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` “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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` “destroy the activity of lipases and phospholipases” means “denature lipases
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`and phospholipases.”
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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 9,816,046
`Ex. 2015, Jaczynski Declaration
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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. For example, the plain and ordinary meaning of “to destroy the
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`activity of lipases and phospholipases” refers simply to a treatment that destroys
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`the activity of lipase and phospholipase enzymes. Moreover, if the Board does
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`decide to construe the term “krill meal,” it is my opinion that the construction
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`offered by Rimfrost is incorrect.
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`13. 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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`Cambridge English Dictionary defines the word “meal” as “a substance that has
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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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`AKER EXHIBIT 2015 PAGE 0007
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`yellow free flowing product, with a faint shrimp like odour and flavour.” The free
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`Ex. 2015, Jaczynski Declaration
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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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`14.
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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 ‘046 Patent specification at paragraphs 138-156. In
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`each case a crushing or grinding process is utilized. For example, the ‘046 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
`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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`AKER EXHIBIT 2015 PAGE 0008
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`0041. Thus, the use of the term “krill meal” in the specification is consistent with
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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`15. 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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`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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`AKER EXHIBIT 2015 PAGE 0009
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`Ex. 2015, Jaczynski Declaration
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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 ‘046 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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`term in the ‘046 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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`AKER EXHIBIT 2015 PAGE 0010
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`III. ANALYSIS OF RIMFROST'S PROPOSED GROUNDS FOR
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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`INVALIDITY
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`16. 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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`17. 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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`18.
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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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`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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`AKER EXHIBIT 2015 PAGE 0011
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`19. I have been asked to give my opinions as to whether Claims 1-19 of the '046
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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`20. Claims 1 and 13 of the '046 Patent are independent claims. Claims 2-12 of
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`the '046 Patent are all dependent on Claim 1, and claims 14-19 of the '046 Patent
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`are all dependent on Claim 13.
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`Independent Claim 1 reads as follows:
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`1. A method of production of krill oil comprising:
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`obtaining a krill meal produced by a process comprising treating krill
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`to destroy the activity of lipases and phospholipases naturally present in krill
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`and wherein said krill meal has been stored for period of from 1 to 36
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`months; and
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`extracting krill oil from said krill meal that has been stored from 1 to
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`36 months with a polar solvent to provide a krill oil with greater than 30%
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`phosphatidylcholine w/w of said krill oil and astaxanthin esters.
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`Independent Claim 13 reads as follows:
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`AKER EXHIBIT 2015 PAGE 0012
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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`13. A method of production of Euphausia superba krill oil
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`comprising:
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`a) obtaining a Euphausia superba krill meal produced by a process
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`comprising treating Euphausia superba to destroy the activity of lipases and
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`phospholipases naturally present in Euphausia superba and wherein said
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`Euphausia superba krill meal has been stored from 1 to 36 months; and
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`b) extracting Euphausia superba oil from said krill meal that has been
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`stored from 1 to 36 months with a polar solvent to provide a Euphausia
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`superba krill oil comprising greater than 30% phosphatidylcholine w/w of
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`said Euphausia superba krill oil, less than 3% free fatty acids w/w of said
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`Euphausia superba krill oil, and at least 100 mg/kg astaxanthin esters.
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`21. The first reference cited in each of Grounds 1, 2 and 3 is Breivik II. As
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`explained below, it is my opinion that the inventors of the ‘046 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, 2 and 3 all depend on Breivik II, removal of Breivik II
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`renders those grounds deficient.
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`22. Ground 1 advanced by Rimfrost applies to independent claim 1 and
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`dependent claims 2-10, which depend on claim 1. Ground 2 advanced by Rimfrost
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`13
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`AKER EXHIBIT 2015 PAGE 0013
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`applies to claims 11 and 12, which depend on claim 1. Ground 3 advanced by
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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`Rimfrost applies to independent claim 13 and dependent claims 14-19, which
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`depend on claim 13. I understand that a group of references cannot be found to
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`render obvious a dependent claim if the group of references does not render
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`obvious the corresponding independent claim.
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`23. 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, 2 or 3. Since as explained below I conclude that the cited
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`prior art does not invalidate Claims 1 and 13 of the '046 patent, the dependent
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`claims are not invalidated either.
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`A. Grounds 1, 2 and 3 all fail because Breivik II is not prior art
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`24. I understand that Rimfrost asserts that: Claims 1-10 of the ‘046 Patent
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`should be cancelled over the combination of Breivik II, Yoshitomi, Budziński,
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`Fricke, Bottino II and Sampalis I; Claims 11-12 of the ‘046 Patent should be
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`cancelled over the combination of Breivik II, Yoshitomi, Budziński, Fricke,
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`Bottino II, and Randolph; and Claims 13-19 should be cancelled over the
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`combination of Breivik II, Budziński, Yoshitomi, Fricke, Bottino II, Randolph and
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`Sampalis I. I further understand, however, that Breivik II is only citable as prior art
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`if its priority date of November 16, 2006 precedes the date by which the inventors
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`AKER EXHIBIT 2015 PAGE 0014
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`of the '046 patent had completed the invention or at least so much of the claimed
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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`invention as is disclosed in Breivik II.
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`25. 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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`26. I have been presented with evidence which I agree shows that the inventors
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`of the '046 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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`27. I have been provided with the following claim chart, which includes Dr.
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
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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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`‘046 Claims
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`1. A method of
`production of krill oil
`comprising:
`
`obtaining a krill meal
`produced by a process
`comprising treating krill
`to destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and
`wherein said krill meal
`has been stored for
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`
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`Evidence of Conception
`and Reduction to
`Practice
`Ex. 2011 – notes describe
`extraction of krill oil
`from krill meal. See p.
`0002.
`Ex. 2013 – analysis of
`krill oil obtained from
`extraction of krill meal.
`See p. 0005-8.
`Ex. 2003 – report K300
`describes analysis of krill
`meal made by a meal
`process where krill is
`brought on board ship (in
`this case the Atlantic
`Navigator), cooked,
`decanted, milled and
`dried; this process
`destroys the activity of
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`16
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`Breivik II
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`Breivik II generally
`discloses extraction of a
`lipid fraction (i.e., krill
`oil) from fresh krill. p.
`0003, l. 29-31.
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`Breivik II does not
`describe storage of a
`krill meal for from 1 to
`36 months.
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`Breivik II describes
`heating fresh krill just
`prior to extraction.
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`AKER EXHIBIT 2015 PAGE 0016
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`Ex. 2015, Jaczynski Declaration
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`period of from 1 to 36
`months; and
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`extracting krill oil from
`said krill meal that has
`been stored from 1 to 36
`months with a polar
`solvent to provide a krill
`oil with greater than 30%
`phosphatidylcholine w/w
`of said krill oil and
`astaxanthin esters.
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`lipases and
`phospholipases that
`naturally occur in krill.
`See 0022-24.
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`Ex. 2011 and Ex. 2013 –
`the krill meal produced
`on board the Atlantic
`Navigator in May 2005
`was stored for 13 months.
`See Ex. 2011 at 0002 and
`Ex. 2013 at 0005-8.
`Ex. 2011 and Ex. 2013 –
`the krill meal was
`extracted with a polar
`solvent (ethanol) to
`provide a phospholipid-
`rich krill oil. The krill oil
`contained 25.3% w/w
`phosphatidylcholine,
`6.2% w/w
`lysophosphatidylcholine,
`and 117 mg/kg
`astaxanthin esters. See
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`17
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`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months.
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`AKER EXHIBIT 2015 PAGE 0017
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`Ex. 2015, Jaczynski Declaration
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`Ex. 2011 at 0002 and Ex.
`2013 at 0005-8.
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`2. The method of claim
`1, wherein said krill oil
`comprises less than 3%
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`As admitted by Dr.
`Tallon, natural
`components of krill oil
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`18
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`Breivik II describes
`extraction of fresh krill
`with polar solvents such
`as ethanol. See p. 0007-
`0008.
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`Breivik II does not
`disclose
`phosphatidylcholine
`content.
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`Breivik II does not
`disclose the astaxanthin
`content of the extracted
`krill oil. Based on prior
`art Neptune Krill Oil
`specification, Breivik
`indicates that astaxanthin
`ester should be greater
`than or equal to 1000
`mg/kg. See p. 0011, l.
`30.
`Breivik II does not
`disclose the free fatty
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`AKER EXHIBIT 2015 PAGE 0018
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`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`free fatty acids w/w of
`said krill oil.
`
`3. The method of claim
`1, wherein said krill oil
`comprises less than about
`2%
`lysophosphatidylcholine
`w/w of said krill oil.
`
`4. The method of claim
`1, wherein said process
`comprising treating krill
`to destroy the activity of
`the lipases and
`phospholipases naturally
`present in krill comprises
`grinding said krill prior
`to destroying the activity
`of said lipases and
`phospholipases naturally
`present in krill.
`
`can be extracted in
`desired amounts by
`known methods.
`As admitted by Dr.
`Tallon,
`lysophosphatidylcholine
`is a natural component of
`krill oil which can be
`extracted in desired
`amounts by known
`methods.
`Ex. 2003 – report K300
`describes analysis of krill
`meal made by a meal
`process where krill is
`brought on board ship (in
`this case the Atlantic
`Navigator) and subjected
`to heating steps before or
`after grinding steps. See
`0022-24.
`
`acid content of the
`extracted krill oil.
`
`Breivik II does not
`disclose the
`lysophosphatidylcholine
`content of the extracted
`krill oil.
`
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months, where the
`krill is ground before
`heating and prior to
`storage.
`
`19
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0019
`
`
`
`5. The method of claim
`1, wherein said process
`comprising treating krill
`to destroy the activity of
`the lipases and
`phospholipases naturally
`present in krill comprises
`heating said krill.
`
`6. The method of claim
`1, wherein said process
`comprising treating krill
`to destroy the activity of
`the lipases and
`phospholipases naturally
`present in krill comprises
`treating said krill with
`chemicals.
`
`
`
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`Ex. 2003 – report K300
`describes analysis of krill
`meal made by a meal
`process where krill is
`brought on board ship (in
`this case the Atlantic
`Navigator), cooked (i.e.,
`heated), decanted, milled
`and dried; this process
`destroys the activity of
`lipases and
`phospholipases. See
`0022-24.
`Chemical treatment is a
`standard way to destroy
`the activity of enzymes.
`
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months, where the
`krill is heated prior to
`storage.
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months, where the
`krill is treated with
`
`20
`
`AKER EXHIBIT 2015 PAGE 0020
`
`
`
`7. The method of claim
`1, wherein said process
`comprising treating krill
`to destroy the activity of
`the lipases and
`phospholipases naturally
`present in krill comprises
`a combination of heating
`said krill and treating
`said krill with chemicals.
`
`8. The method of claim
`1, further comprising
`encapsulating said krill
`oil.
`9. The method of claim
`3, wherein said krill
`is Euphausia superba.
`
`
`
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`chemicals prior to
`storage.
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months, where the
`krill is treating by a
`combination of chemicals
`and heat.
`Breivik II does not
`disclose encapsulation.
`
`Breivik II discloses use
`of fresh Euphausia
`superba, which is an
`Antarctic krill. See p.
`0007-0008, examples.
`
`Heat and chemical
`treatment is a standard
`way to destroy the
`activity of enzymes.
`
`Ex. 2011 – the extracted
`oil was suitable for
`encapsulation. See p.
`0003.
`Ex. 2002 – The Atlantic
`Navigator fished for
`Euphausia superba in the
`Antarctic Ocean in 2005,
`which was used to make
`
`21
`
`AKER EXHIBIT 2015 PAGE 0021
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`10. The method of claim
`1, wherein said krill oil
`comprises at least 40%
`phosphatidylcholine w/w
`of said krill oil.
`
`11. The method of claim
`1, wherein said
`astaxanthin esters are
`present in the krill oil at
`in an amount of at least
`100 mg/kg.
`
`the krill meal for
`extraction.
`As admitted by Dr.
`Tallon,
`phosphatidylcholine is a
`natural component of
`krill oil which can be
`extracted in desired
`amounts by known
`methods.
`Ex. 2013 – the krill meal
`was extracted with a
`polar solvent (ethanol) to
`provide a phospholipid-
`rich krill oil containing
`117 mg/kg astaxanthin
`esters. See p. 0006.
`
`12. The method of claim
`1, wherein said
`astaxanthin esters are
`present in the krill oil at
`
`As admitted by Dr.
`Tallon, the ether
`phospholipids are natural
`components of krill oil
`
`22
`
`Breivik II does not
`disclose the
`phosphatidylcholine
`content of the extracted
`krill oil.
`
`Breivik II does not
`disclose the astaxanthin
`content of the extracted
`krill oil. Based on prior
`art Neptune Krill Oil
`specification, Breivik
`indicates that astaxanthin
`ester should be greater
`than or equal to 1000
`mg/kg. See p. 0011, l.
`30.
`Breivik II does not
`disclose the astaxanthin
`content of the extracted
`krill oil. Based on prior
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0022
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`in an amount of at least
`200 mg/kg.
`
`which can be extracted in
`desired amounts by
`known methods.
`
`13. A method of
`production of Euphausia
`superba krill oil
`comprising:
`
`a) obtaining a Euphausia
`superba krill meal
`produced by a process
`comprising
`treating Euphausia
`superba to destroy the
`activity of lipases and
`phospholipases naturally
`present in Euphausia
`superba and wherein
`
`Ex. 2011 – notes describe
`extraction of krill oil
`from krill meal. See p.
`0002.
`Ex. 2013 – analysis of
`krill oil obtained from
`extraction of krill meal.
`See p. 0005-8.
`Ex. 2003 – report K300
`describes analysis of krill
`meal made by a meal
`process where krill is
`brought on board ship (in
`this case the Atlantic
`Navigator), cooked,
`decanted, milled and
`dried; this process
`destroys the activity of
`
`23
`
`art Neptune Krill Oil
`specification, Breivik
`indicates that astaxanthin
`ester should be greater
`than or equal to 1000
`mg/kg. See p. 0011, l.
`30.
`Breivik II generally
`discloses extraction of a
`lipid fraction (i.e., krill
`oil) from fresh krill
`which can be Euphausia
`superba. p. 0003, l. 29-
`31.
`
`Breivik II does not
`describe storage of a
`krill meal for from 1 to
`36 months.
`
`Breivik II describes
`heating fresh krill just
`prior to extraction.
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0023
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`said Euphausia
`superba krill meal has
`been stored from 1 to 36
`months; and
`
`b) extracting Euphausia
`superba oil from said
`krill meal that has been
`stored from 1 to 36
`months with a polar
`solvent to provide
`a Euphausia
`superba krill oil
`comprising greater than
`30% phosphatidylcholine
`w/w of said Euphausia
`superba krill oil, less
`than 3% free fatty acids
`
`lipases and
`phospholipases that
`naturally occur in krill.
`See 0022-24.
`
`Ex. 2011 and Ex. 2013 –
`the krill meal produced
`on board the Atlantic
`Navigator in May 2005
`was stored for 13 months.
`See Ex. 2011 at 0002 and
`Ex. 2013 at 0005-8.
`Ex. 2011 and Ex. 2013 –
`the krill meal was
`extracted with a polar
`solvent (ethanol) to
`provide a phospholipid-
`rich krill oil. The krill oil
`contained 25.3% w/w
`phosphatidylcholine,
`6.2% w/w
`lysophosphatidylcholine,
`and 117 mg/kg
`astaxanthin esters. See
`
`24
`
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`present in krill and that
`has been stored from 1-
`36 months.
`
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0024
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`w/w of said Euphausia
`superba krill oil, and at
`least 100 mg/kg
`astaxanthin esters.
`
`Ex. 2011 at 0002 and Ex.
`2013 at 0005-8.
`
`As admitted by Dr.
`Tallon, free fatty acids
`are a natural component
`of krill oil which can be
`extracted in desired
`amounts by known
`methods.
`
`Breivik II describes
`extraction from fresh krill
`with polar solvents such
`as ethanol, where the
`fresh krill is heat treated
`just prior to extraction.
`See p. 0007-0008.
`
`Breivik II does not
`disclose
`phosphatidylcholine
`content.
`
`Breivik II does not
`disclose the astaxanthin
`content of the extracted
`krill oil. Based on prior
`art Neptune Krill Oil
`specification, Breivik
`indicates that astaxanthin
`ester should be greater
`than or equal to 1000
`mg/kg. See p. 0011, l.
`30.
`
`
`25
`
`
`
`
`
`
`AKER EXHIBIT 2015 PAGE 0025
`
`
`
`Inter Partes Review of US 9,816,046
`Ex. 2015, Jaczynski Declaration
`
`Breivik II does not
`disclose the free fatty
`acid content of the
`extracted krill oil.
`Breivik II does not
`disclose encapsulation.
`
`Breivik II does not
`disclose the
`phosphatidylcholine
`content of the extracted
`krill oil.
`
`Breivik II does not
`describe extraction from
`a krill meal produced by
`a process comprising
`treating the krill to
`destroy the activity of
`lipases and
`phospholipases naturally
`
`14. The method of claim
`13, further comprising
`encapsulating
`said Euphausia
`superba krill oil.
`15. The method of claim
`13, wherein said krill oil
`comprises at least 40%
`phosphatidylcholine w/w
`of said Euphausia
`superba krill oil.
`
`16. The method of claim
`13, wherein said process
`comprising
`treating Euphausia
`superba to destroy the
`activity of the lipases and
`phospholipases naturally
`present in Euphausia
`
`Ex. 2011 – the extracted
`oil was suitable for
`encapsulation. See p.
`0003.
`
`As admitted by Dr.
`Tallon,
`phospha
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