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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________________
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`RIMFROST AS
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`Petitioner
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`v.
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`AKER BIOMARINE ANTARCTIC AS
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`Patent Owner
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`_______________________
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`Case: IPR2020-01533
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`U.S. Patent No. 9,816,046 B2
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`_______________________
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`
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`REPLY DECLARATION OF DR STEPHEN J. TALLON
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`RIMFROST EXHIBIT 1086 Page 0001
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`U.S. Patent No. 9,816,046 B2
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS ................................................................................ 2
`DECLARATION OF DR STEPHEN J. TALLON ........................................ 3
`BASIS FOR OPINION ................................................................................... 3
`‘046 PETITION GROUNDS FOR INVALIDITY ......................................... 5
`PROBLEMS WITH PO’s RELIANCE ON ITS EXHIBITS ......................... 6
`FOR REDUCTION TO PRACTICE .............................................................. 6
`PROBLEMS WITH PO’s EXPERT DR JACZYNSKI’S CONCLUSIONS
` ....................................................................................................................... 20
`Krill meal claim construction.................................................................... 20
`Budziński EX1008 discloses a stable krill meal ....................................... 27
`suitable for extraction after storage for 13 months. .................................. 27
`Fricke describes denaturation, storage and extraction of cooked krill. .... 33
`Breivik II (EX1037) describes denaturation of krill and extraction of krill
`oil. .............................................................................................................. 38
`THE CITED COMBINATION OF PRIOR ART RENDERS THE CLAIMS
`OBVIOUS, AND POSITA WOULD BE MOTIVATED TO MAKE THIS
`COMBINATION. ......................................................................................... 45
`Processing of ‘fresh krill’ on board (PO’s points 1 & 7). ......................... 47
`Oxidative and hydrolytic stability of krill meal (PO’s point 2) ................ 49
`Use of solvents on ships (PO’s points 3 & 4). .......................................... 53
`PO argues that Fricke lacks sufficient detail (point 5). ............................ 59
`Flammability of krill meal (PO’s point 6). ............................................... 60
`MISCHARACTERIZATIONS OF MY DEPOSITION TESTIMONY ...... 62
`CONCLUDING OPINION ........................................................................... 76
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`U.S. Patent No. 9,816,046 B2
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`DECLARATION OF DR STEPHEN J. TALLON
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`I make this declaration in support of Petitioner’s Reply to Patent Owner’s
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`1.
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`(“PO’s”) Response (Paper 9) to Petition in IPR2020-01533 (“POR”).
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`BASIS FOR OPINION
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`2.
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`I have reviewed the Declaration of Dr. Snorre Tilseth, EX2001, (“Tilseth
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`Dec.”) and accompanying exhibits, and disagree with his conclusions overall and
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`as described in detail in the discussion below.
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`3.
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`I have reviewed the Declaration of Dr. Jacek Jaczynski, EX2015,
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`(“Jaczynski Dec.”) and accompanying exhibits, and disagree with his conclusions
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`overall and as described in detail in the discussion below.
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`4.
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`I have reviewed Patent Owner’s Response to Petition, Paper No. 09, and
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`disagree with the conclusions set forth therein and as described in detail in the
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`discussion below.
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`5.
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`I have reviewed the Deposition of Dr. Jacek Jaczynski, EX1170, (“Jaczynski
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`Dep.”).
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`6.
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`Furthermore, after reviewing the foregoing, I hereby reaffirm my opinion
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`from my earlier Declaration, EX1006, including that all claims of U.S. Patent
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`9,816,046 (“the ‘046 Patent”) would have been obvious to a POSITA in view of
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`U.S. Patent No. 9,816,046 B2
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`the prior art cited.
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`7.
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`In forming my opinions, I have also relied on my own education, work
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`experiences and knowledge, see my CV in my declaration, EX1006, the documents
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`referenced in Appendix E to my declaration, EX1006.
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`8.
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`I begin by noting some of the many admissions made by at least one of PO’s
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`experts about what a POSITA would have known. Among other things, PO’s
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`expert concedes that Budziński describes a krill meal which is stable for 13 months
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`(Jaczynski Dec., EX2015 at ¶¶ 57-58), concedes that Fricke describes storage and
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`extraction of “cooked”, i.e., denatured krill1 (Jaczynski Dec., EX2015 at ¶ 40), and
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`concedes that Breivik describes krill denaturation and extraction (Jaczynski Dec.,
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`EX2015 at ¶¶ 37, 55) and thus PO’s expert concedes that the prior art references in
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`combination disclose the ‘046 patent claim elements of extracting a krill oil from a
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`denatured krill meal after storage. These are discussed in detail below.
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`1 PO has equated to “denature lipases and phospholipases” with “destroy the
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`activity of lipases and phospholipases”. See Tallon Dec., EX1006, ¶¶ 117-
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`131.
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`U.S. Patent No. 9,816,046 B2
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`‘046 PETITION GROUNDS FOR INVALIDITY
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`9.
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`The chart below summarizes my understanding of the grounds Petitioner is
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`asserting for the invalidity of the ‘046 patent.
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`Basis
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`35 U.S.C. §103(a)
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`Claims Challenged
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`1-10
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`35 U.S.C. §103(a)
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`11, 12
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`35 U.S.C. §103(a)
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`13-19
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`Ground References
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`Breivik II (EX1037),
`Yoshitomi (EX1033),
`Budziński (EX1008),
`Fricke (EX1010),
`Bottino II (EX1038),
`Sampalis I (EX1012)
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`
`Breivik II (EX1037),
`Yoshitomi (EX1033),
`Budziński (EX1008),
`Fricke (EX1010),
`Bottino II (EX1038),
`Randolph (EX1011)
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`Breivik II (EX1037),
`Yoshitomi (EX1033),
`Budziński (EX1008),
`Fricke (EX1010),
`Bottino II (EX1038),
`Randolph (EX1011),
`Sampalis I (EX1012)
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` 2
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` 3
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` 1
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`5
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`U.S. Patent No. 9,816,046 B2
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`PROBLEMS WITH PO’s RELIANCE ON ITS EXHIBITS
`FOR REDUCTION TO PRACTICE
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`I note that Atlantic Navigator, EX2002 relied on by PO is deficient in
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`10.
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`several ways: Neither meal nor krill meal is mentioned; there is no mention of E.
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`Superba or any krill species and only size ranges are provided; and there is no
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`mention about the processing of the krill. Furthermore, PO’s expert, Dr. Tilseth is
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`not an author of the report.
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`11.
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`I note that Report K-300, EX2003 relied on by PO is deficient in several
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`ways: No information is provided as to how the samples were prepared; the
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`processing conditions used are not provided; and Tables 14 and 15 have conflicting
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`values for free fatty acids (FFA). See discussions immediately below.
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`12. The authors of EX2003 admitted that their testing methodologies did not
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`always agree.
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`13. Free fatty acids in amounts less than 3% by weight of krill oil are claim
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`limitations of claims 2, 13-19 of the ‘046 patent. EX2013 at 0006 (Table 1) and
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`0007 (Table 3) is the only disclosure of the free fatty acid content of a krill lipid
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`extract in the documents relied on by Dr Tilseth2. These disclosures give free fatty
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`2 EX2003 at 0020, Table 10, discloses free fatty acid content in a section
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`titled ‘KRILL OIL’ which have values of 0.3 and 0.5 wt%, but this krill oil
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`acid contents of 9.9 wt % (99 g/kg) and 16.0 wt% respectively, significantly in
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`U.S. Patent No. 9,816,046 B2
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`excess of the range claimed in the patent. These disclosures contradict PO’s claims
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`of reduction to practice, instead PO relies on my opinion that “[a]s admitted by Dr.
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`Tallon, natural components of krill oil can be extracted in desired amounts by
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`known methods.” See ¶¶ 26-28 below for chart of PO’s reliance on Dr. Tallon’s
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`opinions, in the first 12 claims, as to what a POSITA would have known in order
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`to support its reduction to practice argument to eliminate Breivik II as prior art.
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`See Tilseth Dec., EX2001 at ¶ 17; Jaczynski Dec., EX2015 at ¶ 27, POR at 25-38.
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`The remaining claims of the ‘046 patent also rely on the same opinions of Dr.
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`Tallon and PO presents no evidence of their own reduction to practice of these
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`claim elements.
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`14. PO’s expert Tilseth relies solely on Sections 6.1 and 6.2 of EX2003 (Tilseth
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`Dec., EX2001 at ¶ 8) in order to support his only description of the production of a
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`denatured krill meal aboard the Atlantic Navigator. However, notwithstanding
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`PO’s expert to the contrary, neither Section 6.1 nor Section 6.2 of EX2003 disclose
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`is referring simply to neutral lipids recovered during the decanting process
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`and does not contain phospholipids. It does not represent a krill oil according
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`to the claimed invention as it is not a polar solvent extract from a krill meal
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`and only contains a trace amount of phospholipids.
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`or describe cooking or heating krill material denaturing lipases and phospholipases
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`U.S. Patent No. 9,816,046 B2
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`and/or describe or disclose a denatured krill product or meal (or as used in the ‘046
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`patent claims treatment that destroys the activity of lipases and phospholipases, see
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`my earlier declaration EX1006 at ¶¶ 117-131). Neither does EX2003 provide any
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`of the processing conditions used to prepare the meal. Again, even if EX2003 is
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`taken as a whole, it does not disclose cooking or heating krill for denaturing lipases
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`and phospholipases and/or describe or disclose a denatured krill product or meal
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`(or as used in the ‘046 patent claims, treatment that destroys the activity of lipases
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`and phospholipases, see my earlier declaration EX1006 at ¶¶ 117-131).
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`15. To be clear, none of exhibits accompanying Dr. Tilseth’s declaration,
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`namely EX2002-EX2014, disclose “cooking”, a “cooking stage”, cooking
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`temperature or duration, or the formation of a denatured krill product.
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`16.
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`I have reviewed the deposition transcript of Dr Jaczynski where he, after a
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`45 minute private discussion with PO’s attorney, states for the first time that drying
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`of the krill is consistent with a process and process conditions that denatures
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`lipases in krill material. He is wrong.
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`Q. [PO’s attorney] Is that -- when you removed moisture
`from a raw material down to the level of 7.1 percent,
`would that be consistent with the process that denatures
`the lipases and phospholipases present in the material?
`MR. CHAKANSKY: Objection, scope. You can answer.
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`A. So should I answer the question?
`Q. Yes. You can answer.
`A. To me it is.
`Q. And would it also be consistent with process
`conditions that destroy the activity of the lipases and
`phospholipases?
`Yes.
`Jaczynski Dep., EX1170 at 0168:9-22.
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`17. Dr Jaczynski's opinion is incorrect. It is inconsistent with his own earlier
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`testimony, it is inconsistent in general with established industrial knowledge and
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`practice, and is also in contradiction to Dr Tilseth’s declaration and evidence in the
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`documents relied on in the alleged reduction to practice.
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`18. Highlighting this inconsistency, when next questioned by Petitioner’s
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`attorney, Dr Jaczynski conceded that drying could be carried out using different
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`time and temperature conditions (ie the mere fact of drying, on its own, doesn’t
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`determine that any specific conditions were used to achieve the drying), and that
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`even with knowledge of the time and conditions used that it is “not really that
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`simple” to connect the conditions used with whether or not enzyme denaturation
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`has occurred.
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`Q. [Petitioner’s attorney] Okay. It doesn't matter how it
`was dried; is that correct?
`A. More or less, yes.
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`Q. What if it was a low temperature?
`A. Sure, that's a possibility.
`Q. And if it was at a low temperature, would it be
`denatured?
`A. Say again, low temperature?
`Q. If the krill was dried at a low temperature, would it
`still be denatured?
`A. It could have been. It could be.
`Q. So it depends on time and temperature, right?
`A. Correct.
`Q. You could have a longer time and a lower temperature
`and still get a dry product?
`A. With enzymes in general you still have to have a
`certain -- I'm going to say at least certain level of
`temperature. So it's not really that simple that you can,
`you know, just simplify and just say certain, say,
`integrated time versus temperature will give you
`inactivation of an enzyme.
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`Jaczynski Dep., EX1170 at 0177:8-0178:6. In other words, in contradiction to his
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`own initial opinion, the simple observation of reducing the moisture content does
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`not determine how it was dried, the conditions used, or whether those conditions
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`would even achieve denaturation even if they were used.
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`19. Dr Jaczynski was unable to identify any references to support his opinion
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`that the change in moisture content is an indicator of denaturation, and his opinion
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`remains simply his unsupported opinion. See Jaczynski Dep., EX1170 at 0179:21
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`– 0180:2. Though he testified he teaches courses which cover denaturation, he
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`could point to no textbook to support his moisture reduction opinion. Jaczynski
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`Dep., EX1170 at 0182:12 – 0184:2.
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`20. Again, the mere disclosure of reducing the water content does not specify
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`either time or temperature of the process. Certainly this is true in the specific case
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`of the declaration of Dr Tilseth. The documents provided including Ex 2003 and
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`Ex 2013 provide no disclosure of the manner in which the drying was carried out,
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`either before or after any processing step including drying, or for that matter any
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`indication of any intent to carry out denaturation of enzymes or even any mention
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`of the presence of enzymes.
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`21. The problem with Dr Jaczynski’s opinion is if taken at its word the mere act
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`of drying krill to 7.1% or so should suffice at denaturing the krill material.
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`However, the fact that drying alone cannot be used, a-priori, as a sufficient step for
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`for enzyme denaturation is apparent in the prior art. Grantham, for example (see
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`EX1032 at 0037, Table 10), demonstrates a krill meal process that involves steps
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`including cooking (to denature enzymes) before drying, i.e., drying itself is not
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`relied on as an enzyme denaturation step. As noted in Dr Jaczynski’s own
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`declaration, EX 2015 at ¶ 53, there are competing mechanisms in heat treatment
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`and that excessive use of heat can lead to other undesired effects including
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`oxidation. Thus it is necessary to understand the process and process conditions
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`used, and the objective of the heating or drying step, to understand whether or not
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`denaturation is occurring. These details are completely absent in PO’s claimed
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`reduction to practice.
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`22. Furthermore, PO’s own documents alleging reduction to practice (including
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`EX2003 and EX2013), are in direct contradiction to Dr Jaczynski’s opinion.
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`Exhibit 2013, referring to the krill meal that allegedly exemplifies the invention,
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`states that “The results show that the proportion of neutral lipids increased in the
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`lipid extract. This is a result of increased amount of free fatty acids. This increase
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`may have happened during storage of the krill meal or during the extraction
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`process. The amount of free fatty acid in the krill lipid is higher when analysed by
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`thin layer chromatography (Table 3) than by titration (Table 1). It is an effect we
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`usually observe, but the reason is unknown”. EX2013 at 0007 (emphasis
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`supplied). An increase in free fatty acid concentration during storage is a clear
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`indicator that hydrolysis activity is occurring and indicates that the lipase and
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`phospholipase enzymes have not in fact been denatured (‘destroyed’) by any of the
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`processing steps used in the manufacture of the krill meal. In contrast, an enzyme
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`denaturation step such as described by Grantham, Brevik II, Budzinski, Fricke, and
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`others whether chemical or ‘cooking’ or boiling, is intended to prevent exactly this
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`increase in free fatty acid content. See, e.g., Brevik II, EX1037 at 4:3-6 (“The
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`optional pre-treatment involving short-time heating of the fresh krill will also give
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`an inactivation of enzymatic decomposition of the lipids, thus ensuring a product
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`with very low levels of free fatty acids.”).
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`23. Further deficiencies in the documents provided in PO’s alleged reduction to
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`practice include that Aker observers were not even on board the ship when the krill
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`meal was made “The krill meal used for the extractions described below was
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`produced on May 6, 2005, shortly after the time periods on which the observers
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`were on the ship.” Tilseth Dec., EX2001 at ¶ 6 (emphasis supplied).
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`24.
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`I have read all of the exhibits supplied and referenced by Drs. Tilseth and
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`Jaczynski and relied on by PO for the reduction to practice argument, namely the
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`Atlantic Navigator report (EX2002), report K300 (EX2003), meeting notes
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`(EX2006 and EX2011), and draft agreement (EX2008). None of these documents,
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`however, refer to inactivating, denaturing or destroying lipases or phospholipases
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`or any enzymes, nor do they describe or disclose a denatured krill product or meal.
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`Additionally, none of these documents identify a “cooking stage,” let alone the
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`temperature or duration of this cooking stage, or identify the formation of a
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`denatured krill product or meal. Similarly they do not even mention anything
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`related to the need for or intention to denature the activity of enzymes. Neither do
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`they disclose any measurement of the enzyme activity either before or after any of
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`the processing.
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`25. Petitioner, in the grounds for obviousness, relies on Breivik for only two
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`things. Astaxanthin is one of these (chemical denaturation is the second). I note
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`that Astaxanthin is disclosed by Budziński as being present in the krill meal, even
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`during storage for up to 13 months “The red-pink colour is caused by the presence
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`of carotenoid compounds (astaxanthin and its esters). The discolouration is a result
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`of their decomposition during production and storage; … After 13 months, no
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`pigment was observed.” EX1008 at 0027. As PO is now happy to concede,
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`Astaxanthin can be extracted into the krill oil “in desired amounts by known
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`methods”. See, e.g., Tilseth Dec., EX2001 at ¶ 17; Jaczynski Dec., EX2015 at ¶¶
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`27-28; POR at 28-38. These methods were known in the prior art, prior to Breivik
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`II, and prior to PO’s alleged date for reduction to practice. Furthermore, the only
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`quantification of astaxanthin in a krill oil extracted from krill meal in the
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`documents supporting PO’s alleged reduction to practice, EX2013 at 0006 Table 1,
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`discloses a value of 117 mg/kg Astaxanthin esters. This value is lower than the
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`required “at least 200 mg/kg” in claim 12.
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`26. PO, in attempting to demonstrate that it had reduced to practice the ‘046
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`patent claims relies on my prior testimony to demonstrate what would have been
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`known to a POSITA about krill and extracting the components from krill to
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`provide a krill oil with the desired amounts of, e.g., phospholipids and astaxanthin,
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`and known processes for denaturing krill lipases and enzymes. Copied in the
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`paragraph below are excerpts from both of PO’s experts, used by PO to allegedly
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`demonstrate its reduction to practice of the first 12 of the ‘046 patent claims, in
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`which they admit that I was correct in that a POSITA would have known, inter
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`alia, that the natural components of krill could be extracted to provide a krill oil
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`with desired amount of the components and moreover that a POSITA was aware
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`that krill material could be denatured to destroy lipases and phospholipases using
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`heat and/or chemicals.
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`27. The following is excerpted verbatim from PO’s Expert’s Declarations and
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`POR. See Tilseth Dec., EX2001 at ¶ 17; Jaczynski Dec., EX2015 at ¶ 27; POR at
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`28-32. References to where Dr. Janzynski testified at his deposition that he agreed
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`with my opinions and other statements as to what would have been known to a
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`POSITA appear in brackets after the opinions/statements.
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`28. My so-called “admissions” are simply acknowledgements of what is
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`disclosed and taught in the prior art. These “admissions,” and PO’s acceptance of
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`them, that certain ‘046 patent claim elements were known to POSITA does not
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`demonstrate that the named inventors intended to incorporate all the elements of
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`the patent claims into their invention.
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`29.
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`In discussing §§ 6.1 and 6.2 of EX2003 (0022-0023), Dr. Tilseth expressly
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`states that “[t]he krill meal was produced by a standard meal process where fresh
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`krill is brought on board the ship, cooked, pressed and decanted, and then dried to
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`provide the krill meal. . . . Heating of the krill material sufficient to denature
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`lipases and phospholipases occurs at the cooking stage prior to decanting/pressing
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`[which comes before drying].” Tilseth Dec. at ¶ 8 (emphasis supplied). Dr. Tilseth
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`maintains that denaturation occurs at the “cooking stage” not any subsequent
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`decanting, pressing or drying stage. As discussed above denaturing of krill
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`enzymes is not supported anywhere in the exhibits that Dr. Tilseth relies on,
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`however I note here that Tilseth expressly states that the drying step takes place
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`after the krill is purportedly denatured.
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`30. Report K300, EX2003, §6.3 expressly discloses that merely drying, i.e.,
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`reducing the water content of krill mince, made using “fresh pumped krill” or “krill
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`stored on RSW tanks” and passed through a mincer with a 3 mm hole, results in a
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`krill meal (“Meal from minced krill”) with from 4.4 to 6.2 moisture content.
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`Report K-300, EX2003, § 6.3 Mince Test, at 0025. See further discussion below
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`at ¶ 39. Thus, according to PO’s expert Dr. Tilseth, one of the named inventors of
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`the ‘046 patent, this EX2003 mince krill meal product was not a denatured krill
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`meal as there was not a heating or cooking step prior to drying. No information is
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`provided as to the conditions used in the drying process either. Nor is there any
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`description of a cooking step being present in the standard krill meal process.
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`31. Moreover, the words cook or cooking do not appear anywhere in Exhibits
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`2003 and 2013. Instead, where analysis of samples is provided “from the
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`processing line”, for example in Tables 13, 14, 15 of Exhibit 2003 the only
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`samples described are “Round Frozen Krill”, “After Decanter”, “After Drier before
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`Mill”, “After Mill without AO”, and “Konstruktor Koshkin”. None of the samples
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`relate to a cooking step, instead the only process for which a sample is reported
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`between the fresh starting (“round frozen”) krill and drying is a decanting step.
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`Decanting is not a cooking step. PO’s expert agrees that decanting would not
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`denature the krill; decanting is used for separation. See Jaczynski Dep., EX1170 at
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`0051- 0052:19.
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`32. Chemical denaturation (or a chemical treatment that denatures lipases and
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`phospholipases, or as used in the ‘046 patent claims a chemical treatment that
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`destroys the activity of lipases and phospholipases, see my earlier declaration
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`EX1006 at ¶¶ 117-131) does not appear in PO’s alleged reduction to practice of its
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`claimed invention. See, the Atlantic Navigator report (EX2002), report K300
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`(EX2003), meeting notes (EX2006 and EX2011), and draft agreement (EX2008).
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`33.
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`U.S. Patent No. 9,816,046 B2
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`Indeed, as noted above, in alleging prior reduction to practice, PO argues
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`that chemical denaturation was a well-known prior art process. See, e.g., Tilseth
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`Dec., Exhibit 2001 at ¶ 17 (discussing claims 6 & 18 on pp. 0015-0016 & 23,
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`respectively); see also Jaczynski Dec., EX2015 at ¶¶ 20 & 27; POR at 29 & 37.
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`Chemical denaturation is the second of the only two things (astaxanthin is the first
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`thing) Petitioner relies on Breivik for. PO provides no support for this in its alleged
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`prior reduction to practice.
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`34. The concept of encapsulation (“capsule for krill oil”) and (“special capsules
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`may be designed”) was attributed to a non-inventor - Ulf Håkansson. See EX2006
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`at 0003 and EX2011 at 0003, respectively. See also, Jaczynski Dep., EX1170 at
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`0060:16-0061:3.
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`35. Thus, PO has provided no support that the invention as claimed was reduced
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`to practice before Breivik II as it failed to provide evidence of at least the
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`following claim elements: denaturation of the krill meal by heat and/or chemical
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`treatment (see ¶¶ 14-24 above ); 3% free fatty acid content (see ¶¶ 13, 26-28
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`above); 2% lysophosphatidylcholine content (see ¶¶ 26-28 above); 40%
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`phosphatidylcholine content (see ¶¶ 26-28 above); 200 mg/kg astaxanthin esters
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`content (see ¶¶ 25-28 above).
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`U.S. Patent No. 9,816,046 B2
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`PROBLEMS WITH PO’s EXPERT DR JACZYNSKI’S
`CONCLUSIONS
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`I address firstly here the following deficiencies in the opinion of Aker’s
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`36.
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`expert, Dr Jaczynski relating to the disclosures in the prior art, namely:
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`understanding of the term krill meal in the context of the patent; distinction
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`between the steps of processing fresh krill on-ship to denature the krill material and
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`subsequent independent steps associated with extraction of a krill oil; aspects
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`related to lipid degradation; and grinding of krill.
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`Krill meal claim construction.
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`37. PO notes that I was provided with and used an older standard for claim
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`construction in which claim terms are interpreted according to their “broadest
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`reasonable construction in light of the specification”, rather than the Phillips claim
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`construction standard which I have been informed requires “that claim construction
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`begins with the ordinary and customary meanings of the terms used in the claims
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`and that the meanings of terms used in the claims should be understood primarily
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`in view of the intrinsic record, including the specification and file history”. I am
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`aware of both claim construction standards and, in my opinion, my original claim
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`construction remains the most appropriate claim construction under either
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`standard.
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`38. PO proposes an alternative construction, that “krill meal” means “a krill
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`U.S. Patent No. 9,816,046 B2
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`powder resulting from the processing of krill” (Jaczynski Dec., EX2015 at ¶¶ 13-
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`15), but this does not comport with the ‘046 patent specification discussions of
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`krill meal.3 Despite their emphasis on use of the correct standard, PO’s own
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`construction is not based on the intrinsic evidence, e.g., the specification and
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`prosecution file history, as I am informed is required by the Phillips standard.
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`Instead of focusing on the patent specification, PO’s analysis of the term “krill
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`meal” relies on four pieces of extrinsic evidence: A dictionary (EX2016), its
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`expert’s testimony (see, e.g., EX2015 at ¶¶ 13-15), a prior art reference to one krill
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`meal described as a “free flowing” krill product (Grantham, EX1032 at 0053) and
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`a table of contents listing of products associated with different stages of krill
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`processing from another prior art reference (Budziński, EX1008 at 0005) to
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`support their claim construction (POR at 9, EX2015 at ¶ 15) while ignoring
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`3 Again, see my earlier declaration EX1006 at ¶¶ 139-146 for a detailed
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`discussion of what the specification discloses about the term “krill meal”.
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`Notably, as construed by PO, PO’s “krill meal” would by definition include
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`completely dilipidated krill meal, i.e., a krill material without any lipids and,
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`as such, no krill oil could be extracted from PO’s “krill meal” a material
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`requirement of all the claims.
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`intrinsic references, including references to other water reduced meals which are
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`U.S. Patent No. 9,816,046 B2
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`
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`not free flowing from the patent specification itself for example (see, e.g., ‘046
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`patent, EX1001 at 10:50-59 (“freshly caught krill is wet pressed to obtain oil and a
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`meal . . . [i]n some embodiments, this material in then pressed to yield a press
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`cake. . . [which is a] denatured meal”, emphasis supplied). A press cake is
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`formed by pressing or squeezing out water; a press cake is not a powder or a free
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`flowing material. Also “wet pressing” a material simply removes water and does
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`not result in the formation of a powder or free flowing material. Likewise a screw
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`press is used to remove water but does not result in the formation of a powder.
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`39.
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` PO’s strained assertion (Jaczynsky Dec., EX2015 at ¶ 15) that the mere
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`separate listing of, e.g., minced products and krill meal in the table of contents
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`from Budziński, EX1008 at 0005, does not mean that a POSITA would not
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`consider minced krill as a form of krill meal just with a higher moisture content to
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`begin with. It is just a distinction of water content in krill mince which can be
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`further dried to get a krill meal, a fact that even PO’s expert agrees with. See,
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`Jaczynski Dep., EX1170 at 0032:5-14; see also, EX2013, § 6.3 at 0025. It is
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`important to note that calling a krill product a krill meal does not require the krill
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`meal being denatured, that is, a krill meal may or may not be a denatured krill
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`product. Neither Petitioner’s construction of “krill meal”, nor PO’s construction of
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`“krill meal”, require that the krill meal be denatured.
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`40. PO draws, as its primary argument, on a dictionary definition of the word
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`U.S. Patent No. 9,816,046 B2
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`
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`“meal”, which uses a definition that applies to products made from seeds. POR at
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`8-11, relying on Jaczynski Dec., EX2015 at ¶¶ 13-15, relying on EX2016
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`(dictionary). This bears no resemblance to a meal which would be formed from
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`marine materials which, unlike seeds, have a high water content and are
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`biologically unstable. The processes and equipment used to make marine meals
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`(cooking, decanting, pressing, drying etc) bear little resemblance to seed meal
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`processes, and the ‘046 patent claims do not relate to seeds, they all require
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`“treating krill”.
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`41. PO’s reliance on its krill meal as a free flowing krill is belied by the
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`“evidence” used by PO and its expert in allegedly establishing a reduction to
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`practice to eliminate Breivik II as prior art. EX2003 relied on by PO (see POR at
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`21, 25, 28-29, 32, 35-36) and its experts in their declarations (see Tilseth Dec., ¶¶
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`7-8, 12, 17; and Jaczynski Dec., ¶¶ 27-28) describes the physical characteristics of
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`krill meals of the same type that Dr. Tilseth argues were used in development of
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`the krill oil products of the ‘046 patent. Tilseth Dec., EX2001 at ¶¶ 7-8. However,
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`some of the krill meals PO relies on for its reduction to practice have flow numbers
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`close to or greater than 5, which is described as exhibiting “very poor flow
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`properties”. See EX2003, Table 8 at page 0017, copied below.4 None of the krill
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`U.S. Patent No. 9,816,046 B2
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`meals PO relies on for its reduction to practice have flow numbers below 2, which
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`is described as having “very good flow properties”. Id. Table 8 from EX2003 at
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`0017 is copied below.
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`42. PO also recites use of a pressing, crushing, or grinding step, resulti