RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`IPR2020-01534
`
`U.S. Patent No. 10,010,567 B2
`
`PETITIONER’S DEMONSTRATIVES
`
`For Petitioner
`Lead Counsel: James F. Harrington, Esq. Reg. No: 44,741
`First Back Up Counsel: Michael I. Chakansky, Esq. Reg. No: 31,600
`Back Up Counsel: John T. Gallagher, Esq. Reg. No: 35,516
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 01
`
`
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`IPR2020-01534
`
`U.S. Patent No. 10,010,567 B2
`
`PETITIONER’S DEMONSTRATIVES
`
`For Petitioner
`Lead Counsel: James F. Harrington, Esq. Reg. No: 44,741
`First Back Up Counsel: Michael I. Chakansky, Esq. Reg. No: 31,600
`Back Up Counsel: John T. Gallagher, Esq. Reg. No: 35,516
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 01
`
`
`
`‘567 PATENT INVALIDITY GROUNDS
`
`TABLE I
`
`Basis
`
`Claims Challenged
`
`35 U.S.C. §103(a)
`
`1-5, 7-11, 15-17
`
`35 U.S.C. §103(a)
`
`6, 14, 20
`
`35 U.S.C. §103(a)
`
`12, 18
`
`35 U.S.C. §103(a)
`
`13, 19
`
`Ground
`
`1
`
`2
`
`3
`
`4
`
`References
`Sampalis I (EX1012)
`Bottino II (EX1038)
`Randolph (EX1011)
`Sampalis I (EX1012)
`Bottino II (EX1038)
`Randolph (EX1011)
`Breivik II (EX1037)
`Sampalis I (EX1012)
`Bottino II (EX1038)
`Randolph (EX1011)
`Bottino I (EX1007)
`Sampalis I (EX1012)
`Bottino II (EX1038)
`Randolph (EX1011)
`Fricke (EX1010)*
`Yamaguchi (EX1162)
`Hardardottir (EX1164)
`
`*In an argument about Fricke (EX1010), Patent Owner asserts that “Fricke 1984 (Ex. 1010) . . . was not
`included in an instituted Ground”. ‘567 Sur-reply, Paper 17, pp. 6-7.fn2.. However, Fricke was and is indeed
`included in an instituted ground. ‘567 Petition, Paper 2, p. 10; ‘567 Decision to Institute, Paper 6, pp. 7, 15.
`
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`RIMFROST EXHIBIT 1180 SLIDE 02
`
`
`
`INDEPENDENT CLAIMS 1 AND 15
`
`1. Encapsulated krill oil comprising a capsule containing Euphausia superba
`krill oil suitable for oral administration, said krill oil comprising greater than
`30% phosphatidylcholine w/w of said krill oil, less than 3% free fatty acids
`w/w of said krill oil and astaxanthin esters.
`
`15. Encapsulated krill oil comprising a soft gel capsule containing Euphausia
`superba krill oil suitable for oral administration, said krill oil comprising
`greater than 30% phosphatidylcholine w/w of said krill oil, less than 3% free
`fatty acids w/w of said krill oil, less than about 3% lysophosphatidylcholine
`w/w of said krill oil and at least 100 mg/kg astaxanthin esters.
`
`• Patent Owner is only contesting whether Petitioner has demonstrated that
`Table 2 of Bottino II discloses a krill oil extract with less than 3% free fatty
`acid (FFA) content.
`
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`RIMFROST EXHIBIT 1180 SLIDE 03
`
`
`
`COLLATERAL
`ESTOPPEL APPLIES
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 04
`
`
`
`‘567 PATENT FAMILY CHART
`
`TERMINAL
`DISCLAIMERS
`
`All claims of the ‘567
`patent were rejected for
`non-statutory double
`patenting as “not
`patentably distinct”
`from, inter alia, the claims
`of the ‘453, ‘905, ‘752
`and ‘765 patents. Patent
`Owner filed terminal
`disclaimers with respect to
`all four patents.
`
`‘567 Petition, Paper 2 at 37-39;
`‘567 File History, EX1115 at
`0128 (double patenting), 0109-
`0116 (disclaimer), 288-290
`(claims).
`
`‘567 Petition, Paper 2 at 11; ‘567 Tallon Dec., EX1006, ¶ 33, p. 25; ‘Since the ‘567 Petition was filed, all claims of the ‘453 patent
`(65 claims), 752 patent (20 claims) and ‘765 patent (48 claims) have been cancelled.
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`RIMFROST EXHIBIT 1180 SLIDE 05
`
`
`
`PATENT OWNER CANNOT TAKE POSITIONS
`INCONSISTENT WITH PRIOR ADVERSE JUDGMENT
`
`37 CFR § 42.73 Judgment.
`
`(d) Estoppel.
`
`***
`(3) Patent applicant or owner. A patent applicant or owner is
`precluded from taking action inconsistent with the adverse judgment,
`including obtaining in any patent:
`
`(i) A claim that is not patentably distinct
`from a finally refused or canceled claim . . . .
`
`See ‘567 Petition, Paper 2, p. 43.
`
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`RIMFROST EXHIBIT 1180 SLIDE 06
`
`
`
`COLLATERAL ESTOPPEL APPLIES
`
`• The Board previously relied on all references in finding
`five other “krill oil” patents in the same family as the
`‘567 patent unpatentable, with the exception of
`Hardardottir and Yamaguchi and disclosure of the
`cholesterol limitation recited in dependent claims 13
`and 19.
`
`• The inclusion of a limitation in the two dependent
`claims requiring the recited krill oil have “less than
`about 0.5 g/100 g total cholesterol” does not materially
`alter the question of the ‘567 patent’s unpatentability,
`collateral estoppel is applicable.
`
`See ‘567 Petition, Paper 2, pp. 42-44; ‘567 Petitioner’s Reply, Paper 14, p. 4.
`
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`RIMFROST EXHIBIT 1180 SLIDE 07
`
`
`
`COLLATERAL ESTOPPEL APPLIES
`[CONTINUED]
`• Petitioner relied on the results in Table 2 of Bottino II in the
`‘453 Patent IPRs, IPR2018-01178, -01179, and the Patent
`Owner NEVER argued the results in Table 2 were unreliable.
`
`– The Board previously relied on Bottino II, Table 2 in finding all
`claims of the related ‘453 patent unpatentable. EX1157 (-01178-
`FWD), pp. 20, 27-29; EX1158 (-01179-FWD), pp. 20, 27-29.
`
`• Petitioner previously argued that Table 2 of Bottino II
`disclosed a krill oil extract with less than 3% free fatty acids,
`and Patent Owner and its expert NEVER disputed that
`teaching. ‘046 Patent IPR, IPR2020-01533, POR, Paper 9,
`p. 28.
`
`See ‘567 Petition, Paper 2, pp. 42-44; ‘567 Petitioner’s Reply, Paper 14, p. 4.
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`RIMFROST EXHIBIT 1180 SLIDE 08
`
`
`
`THE BOARD APPLIED ALL THE ‘567 IPR REFERENCES IN EARLIER
`IPRS, EXCEPT FOR HARDARDOTTIR AND YAMAGUCHI
`
`‘453
`patent
`(2018-
`01178);
`(2018-
`01179)
`√
`√
`√
`√
`
`√
`
`‘567
`patent
`(2020-
`01534)
`
`√
`√
`√
`√
`√
`√
`
`√
`√
`
`Sampalis I
`Bottino II
`Randolph
`Breivik II
`Bottino I
`Fricke
`Breivik I
`Hardardottir
`Yamaguchi
`
`‘877
`patent
`(2017-
`00746)
`
`‘765
`patent
`(2018-
`00295)
`
`‘905
`patent
`(2017-
`00745)
`
`‘752
`patent
`(2018-
`01730)
`
`√
`
`√
`√
`
`√
`
`√
`
`√
`
`√
`√
`
`√
`
`√
`
`√
`√
`
`See ‘567 Petition, Paper 2, pp. 42-44; ‘567 Petitioner’s Reply, Paper 14, p. 4.
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`RIMFROST EXHIBIT 1180 SLIDE 09
`
`
`
`POSITA KNEW THAT THE NATURALLY PRESENT KRILL LIPID
`COMPONENTS COULD BE EXTRACTED RESULTING IN A KRILL OIL
`WITH LIPID CONTENT THAT COULD BE VARIED IN PREDICTABLE WAYS
`• The claims of the ‘567 patent, as claims of the ‘905, ‘877, ‘765, ‘453 and ‘752
`patents that have been previously found unpatentable by the Board, recite krill oil
`compositions containing various components naturally present in krill.
`
`•
`
`•
`
`In particular, the claims of the ‘567 patent require that the recited krill oil have
`greater than 30% phosphatidylcholine, astaxanthin esters, less than 3%
`lysophosphatidylcholine and less than 0.5g/100g cholesterol.
`
`Importantly, phosphatidylcholine and astaxanthin esters are naturally present in krill,
`and it was known that these components could be extracted using conventional
`techniques and known solvents. See, e.g., Tallon Dec., EX1006 at ¶¶ 55-56, 62, 67,
`76-78, 80-82, 194, Chart II.
`
`• Additionally, it was known that lipid fractions, with practically no cholesterol
`naturally present in krill, could be extracted from krill and krill extracts. Tallon Dec.,
`EX1006 at ¶¶ 64-65, 290-291, 299, 311, 319-322.
`
`•
`
`It was also recognized that different krill extracts could be blended to produce a
`desired krill oil composition. Tallon Dec., EX1006 at ¶¶ 55, 80, 84, 478, 514, 533.
`See ‘567 Petition, Paper 2, pp. 15-16.
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`RIMFROST EXHIBIT 1180 SLIDE 10
`
`
`
`THE FEDERAL CIRCUIT AGREED WITH THE BOARD
`
`In affirming the Board’s Final Written Decisions in the ‘905 and ‘877 IPRs
`(IPR2017-00745 and IPR2017-00746, EX1103 & EX1104), the Federal Circuit
`noted that the Board’s findings were supported by substantial evidence:
`
`“After weighing the evidence, the Board found that the lipid components of
`krill oil can be extracted using any number of suitable solvents, that the
`proportions of the components could be varied in predictable ways, and
`that the resulting extracts could be blended to produce a final krill oil product.
`The Board credited expert testimony from Dr. Tallon that a person of skill
`could draw on an extensive body of established, industrial knowledge of
`methods and parameters that could be used to produce a stable product with
`known compositions. . . .”
`
`Aker Biomarine Antarctic AS v. Rimfrost AS, 2019-1097, 2019-1078, 2019 U.S.
`App. LEXIS 29656, at * 7 (Fed. Cir. Oct. 3, 2019) (emphasis added) (EX1154).
`
`See ‘567 Petition, Paper 2, pp. 16-17.
`
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`RIMFROST EXHIBIT 1180 SLIDE 11
`
`
`
`PATENT OWNER’S EXPERT
`AGREED WITH THE BOARD
`AND WITH PETITIONER’S EXPERT
`
`• Patent Owner’s expert, Dr. Jacyznski testified when deposed
`in a related IPR that a POSITA would have known that natural
`components of krill oil could be extracted in desired amounts
`by known methods.
`
`Q. Okay. And do you agree with Dr. Tallon that natural
`components of krill oil can be extracted in desired
`amounts by known methods?
`
`A.Yes, I would agree.
`
`Jacyznski Dep., IPR2020-01533, EX1170 at 44:23-45:3; ‘567 Petitioner’s Reply, Paper 14, pp. 5-6, 20; ‘567
`Tallon Reply Dec., EX1086 at ¶¶ 53-54.
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`RIMFROST EXHIBIT 1180 SLIDE 12
`
`
`
`THE ONLY ISSUE RAISED BY
`PATENT OWNER IS WHETHER
`BOTTINO II DISCLOSES A
`KRILL OIL EXTRACT HAVING
`LESS THAN 3% FREE FATTY
`ACIDS
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 13
`
`
`
`BOTTINI II, EX1038, TABLE 2, THE LIPIDS OF ANTARCTIC KRILL
`E. SUPERBA - STATION 11 (Highlight and Bracket Added)
`
`EX1038 at 0004; ‘567 Petitioner’s Reply, Paper 14, pp. 7-8; ‘567 Tallon Reply Dec., EX1086 at ¶ 52.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 14
`
`
`
`BOTTINO II DISCLOSES A KRILL OIL WITH A
`FREE FATTY ACID CONTENT OF AT MOST 2%
`
`As Dr. Tallon testified:
`
`• “The ‘Unknown’ lipid fraction in Bottino II Table 2 is noted in
`the footnote as presenting between the triglyceride and
`diglyceride fractions, and that the amount recovered was too
`small to characterize further. A POSITA would understand
`that, while not identified, this fraction would include any free
`fatty acids that are present in the krill lipids. Thus Bottino II
`discloses a free fatty acid content for Station 11 of at most
`2%.”
`
`‘567 Tallon Dec., EX1006 at ¶ 174 (emphasis supplied).
`
`‘567 Petition, Paper 2, pp. 46-47; see also ‘567 Tallon Dec., EX1006 at ¶¶ 204, 459.
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`RIMFROST EXHIBIT 1180 SLIDE 15
`
`
`
`A POSITA WOULD HAVE UNDERSTOOD BOTTINO II
`AS DISCLOSING A KRILL OIL EXTRACT WITH
`LESS THAN 3% FREE FATTY ACIDS
`
`• Bottino II disclosed it was identifying the fatty acid content of krill. EX1038 at
`0002 ("Fatty acids were identified by co-chromatography with known standards").
`
`• Bottino II Table 2 accounts for 100% of the E. Superba lipids from the Station 11
`krill. This 100% includes 2% lipid fraction label "unkown".
`
`• Dr. Tallon provided detailed testimony that any free fatty acids present in the
`Station 11 extract is found in the fraction labeled “unknown” and that the free fatty
`acid content is between 1.56-2.44%.
`
`• Consistent with Bottino II, Fricke (Exhibit 1010, p. 0003) reports cooked krill had a
`free fatty acid content from 1% to 3%.
`
`• Also consistent with Bottino II, Phleger (Exhibit 1173, p. 0004) discloses a krill
`extract with 1.1 - 1.8% free fatty acids.
`
`‘567 Petitioner’s Reply, Paper 14, pp. 7-10, 14-16; ‘567 Tallon Reply Dec., EX1086 at ¶¶ 32-34, 44, 48, 52,
`54.
`
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`RIMFROST EXHIBIT 1180 SLIDE 16
`
`
`
`A POSITA WOULD HAVE UNDERSTOOD BOTTINO II
`AS DISCLOSING A KRILL OIL EXTRACT WITH
`LESS THAN 3% FREE FATTY ACIDS
`[CONTINUED]
`
`• Patent Owner’s expert, Dr. Jacyznski testified it “was reasonable to assume”
`the Station 11 extract contained free fatty acids. Jacyznski Dec., EX2001,
`¶ 29.
`
`•
`
`•
`
`Ignoring its own expert’s affirmative testimony, Patent Owner nevertheless
`argues “the ‘unknown’ fraction does not include free acid acids.” PO Sur-
`Reply, Paper 17, p. 1.
`
`If not in the “unknown” fraction, Patent Owner and its expert offer no
`explantation in which Table 2 fraction free fatty acids are found.
`
`‘567 Petitioner’s Reply, Paper 14, pp. 7-10, 14-16; ‘567 Tallon Reply Dec., EX1086 at ¶¶ 32-34, 44, 48, 52,
`54.
`
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`RIMFROST EXHIBIT 1180 SLIDE 17
`
`
`
`PATENT OWNER’S ARGUMENTS ARE MERITLESS
`
`Patent Owner advanced a number of meritless arguments
`regarding the results reported in Bottino II, Table 2:
`
`• The free fatty acid content was not reported because of “poor
`resolution”.
`
`• Bottino II did not go to the trouble of quantifying free fatty
`acids.
`
`• The results reported in Table 2 are not credible and would
`have been disregarded by a POSITA.
`
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`RIMFROST EXHIBIT 1180 SLIDE 18
`
`
`
`PATENT OWNER’S POOR RESOLUTION
`ARGUMENT IS BASELESS
`
`Patent Owner argues that “the free fatty acid content was simply not reported
`in Table 2, for example due to poor resolution.” ‘567 Patent Owner’s Sur-
`Reply, Paper 17, p. 14.
`
`However, Dr. Tallon testified that if free fatty acids were not listed on Table
`2 because of “poor resolution,” the free fatty acids would have been present
`in an amount less than 1%.
`
`• “Bottino reports a number of other components of the krill oil which
`constitute only 1% of the total oil… free fatty acids would not have
`been missed by Bottino II due to poor resolution, as alleged by Dr.
`Jaczynski, unless they were present in levels lower than 1%.”
`‘567 Tallon Reply Dec., EX1086 at ¶ 34.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 19
`
`
`
`PATENT OWNER’S SUGGESTION THAT BOTTINO II SIMPLY
`DID NOT GO TO THE TROUBLE TO QUANTIFY
`FREE FATTY ACIDS IS UNPERSUASIVE
`
`Patent Owner’s argument ignores:
`
`• Bottino II acknowledges that krill oil extracts were being examined for fatty
`acids.
`
`"Fatty acids were identified by co-chromatography with known standards and
`by plotting relative retention times vs. chain length before and after
`hydrogenation.” Bottino II, EX1038, p. 0002.
`
`• Bottino II provides 4 tables disclosing the various fatty acids found in
`Antarctic krill. Bottino II, EX1038, pp. 0002-0004 (Tables1-4).
`
`• Bottino II concludes by noting:
`
`“The fatty acid composition of E. superba differed quantitatively from that of
`E. crystallorophias, the former containing more saturated acids, the latter
`containing more monoenoic acids.” Bottino II, EX1038, p. 0005.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 20
`
`
`
`PATENT OWNER’S ARGUMENT THAT THE TABLE 2 RESULTS ARE
`UNRELIABLE AND WOULD BE DISREGARDED BY A POSITA
`IS FRIVOLOUS
`
`• Patent Owner’s expert proclaims the data in Table 2 (a) “is not
`reliable and would be disregarded by a POSITA,” and (b) a
`POSITA “would be discouraged from drawing any
`conclusions” about the free fatty acid content based on the
`results in Table 2. EX2001, ¶¶ 29-30.
`
`• Yet, Patent Owner’s expert, in one of his own articles,
`expressly relied on results reported in Table 2 showing a krill
`extract having 58% complex lipids. EX1171, pp. 0004, 0013.
`
`‘567 Petitioner’s Reply, Paper 14, pp. 7-8, 14-15; see also ‘567 Tallon Reply Dec., EX1086 at ¶¶ 52.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 21
`
`
`
`PATENT OWNER’S ARGUMENT THE TABLE 2 RESULTS ARE
`UNRELIABLE AND WOULD BE DISREGARDED BY A POSITA
`IS FRIVOLOUS [CONTINUED]
`Patent Owner's expert asserts:
`
`• “It is notable that when the Station 8 and Station 11 data for E. superba
`are compared, the values for PC and PE are missing from the Station 8
`data. This indicates that the data is not reliable and would be
`disregarded by a POSITA even for anecdotal use. Bottino II was
`published in 1975. By 2006, it was unlikely that a paper with these types of
`problems with the data would be accepted for publication.” Jacyznski Dec.,
`EX2001 at ¶ 29 (emphasis supplied).
`
`• “For example, the “unknowns” are reported as 2% ± 22% and diglycerides
`as reported as 4% ± 5% for the Station 11 sample, and as 21 % and 17% in
`the Station 8 sample, respectively. Due to this high degree of variability, a
`POSITA would be discouraged from drawing any conclusions about the
`actual lipid contents of the extracts, much less the free fatty acid content.”
`Jacyznski Dec., EX2001 at ¶ 30 (emphasis supplied).
`‘567 Petitioner’s Reply, Paper 14, p.7, fn3; ‘567 POR, Paper 9, p. 16.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 22
`
`
`
`PATENT OWNER’S ARGUMENT THE TABLE 2 RESULTS ARE
`UNRELIABLE AND WOULD BE DISREGARDED BY A POSITA
`IS FRIVOLOUS [CONTINUED]
`• Notwithstanding Dr. Jacyznski’s arguments about reliability, he presented lipid
`data from Bottino II, Table 2, Station 8 and Station 11 in a 2007 scientific
`article he co-authored.
`
`“Bottino [II] reported even higher levels of [complex lipids] 54% to 58%.”
`EX1171 at 0004 (emphasis supplied, reference numbers omitted).
`
`‘567 Petitioner’s Reply, Paper 14, p.7, fn3; Exhibit 1171, pp. 0004, 0013; ‘567 Tallon Reply Dec., EX1086 at
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`¶¶ 42-43.
`RIMFROST EXHIBIT 1180 SLIDE 23
`
`
`
`•
`
`PATENT OWNER’S ARGUMENT THE TABLE 2 RESULTS ARE
`UNRELIABLE AND WOULD BE DISREGARDED BY A POSITA
`IS FRIVOLOUS [CONTINUED]
`In the '453 Patent IPRs, IPR2018-01178 and IPR2018-01179,
`Petitioner again relied on the results in Bottino II, Table 2.
`– Patent Owner never argued that the results in Table 2 were
`unreliable.
`– In fact the Board validated Petitioner's reliance on the
`results in Table 2, finding all claims of the related krill oil
`patent unpatentable. EX1157 (1178-FWD), pp. 20, 27-29:
`EX1158, pp. 20, 27-29 (1179-FWD).
`– "Petitioner’s characterization of Breivik II, Catchpole,
`Bottino II, and Sampalis I, as well as Dr. Tallon’s
`testimony as to the knowledge in the art are supported by
`the evidence. . . . " EX1157 (1178-FWD), p. 28.
`‘567 Petitioner’s Reply, Paper 14, pp. 16-17.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 24
`
`
`
`•
`
`PATENT OWNER ADMITTED THAT KRILL OIL WITH
`LESS THAN 3% FFA WOULD HAVE BEEN OBVIOUS TO A POSITA
`In an IPR challenging a related krill oil patent, Patent Owner and Dr.
`Jaczynski argued that the less than 3% FFA claim limitation of U.S.
`9,816,046 could be met by what a POSITA would have known. See chart
`from Patent Owner’s Response in IPR2020-01533 copied below. ‘046
`POR, Paper 9, p. 28.
`
`‘567 Petitioner’s Reply, p. 17; ‘567 Tallon Reply Dec., EX1086 at ¶¶ 53-54.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 25
`
`
`
`A POSITA COULD ALWAYS REDUCE
`THE FFA CONTENT TO BELOW 3% W/W KRILL OIL
`Dr. Tallon testified:
`
`•
`
`“Furthermore, even assuming (for arguments sake only), that Bottino II did
`not disclose a krill oil with a free fatty acid content of less than 3%, PO
`and PO’s expert Dr. Jaczynski have stated in a reduction to practice
`argument regarding U.S. Patent No. 9, 816,046 in IPR2020-01533, that
`the free fatty acid level in a krill oil extract could, if desired, be
`produced in the desired amounts using methods known to a POSITA.
`These methods could include, for example, adjustment of the levels of the
`krill oil components (such as free fatty acids), by use of processing
`methods known to the POSITA, including blending and choice of
`extraction conditions. Both PO and its expert have conceded that the
`natural components of krill oil, including specifically free fatty acids with
`levels of less than 3%, ‘can be extracted in desired amounts by known
`methods.’ POR, IPR2020-01533, EX1175 at 28; IPR2020-01533, EX1170
`at 44:23-45:3.” ‘567 Tallon Reply, EX1086 at ¶ 53 (emphasis supplied).
`
`‘567 Petitioner’s Reply, Paper 14, pp. 5-6, 16-17; see also ‘567 Tallon Reply Dec., EX1086 at ¶ 54.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 26
`
`
`
`A POSITA COULD ALWAYS REDUCE
`THE FFA CONTENT TO BELOW 3% W/W KRILL OIL
`[CONTINUED]
`
`Dr. Tallon further testified:
`
`"Removal of Neutral Lipids would reduce the level of free fatty
`acids.
`
`"204. POSITA would have also known that removal of neutral lipids
`would simultaneously reduce the level of free fatty acids (free fatty
`acids are neutral lipids) compared to the level of free fatty acids in the
`total krill lipids. Bottino II discloses, as described above, that the free
`fatty acid content of the total lipids for E. Superba Station 11 is less
`than 2 wt%. Thus, an enriched phospholipid krill oil from which neutral
`lipids have been removed would have an even lower amount than 2
`wt%." Tallon Dec., EX1006, ¶ 204.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 27
`
`
`
`BOTTINO II'S 2±22 PERCENT DISCLOSES
`LESS THAN 3% FREE FATTY ACIDS W/W
`
`• Bottino II, Table 2, Station 11 reports an Unknown fraction of 2±22% of the krill sampled.
`
`• Dr. Tallon testified that "[t]he standard deviation reported by Bottino II would be
`understood to be a percentage variation – that is the value of 2 weight percent reported
`has a standard deviation which is 22% of the reported value, that is a standard deviation
`of plus or minus 0.44 wt% (22% of 4). Therefore the reported range in Bottino II for the
`free fatty acid content of Station 11 is from 1.56 wt% (2-0.44) to 2.44 wt% (2+0.44).” ‘567
`Tallon Reply Dec., EX1086 at ¶ 48 (emphasis supplied).
`
`Dr Jaczynski's interpretation of the standard deviation is a mathematical impossibility.
`
`• Dr Jaczynski takes the argues that the standard deviation of "22" is “about 1000% greater than
`the actual value it represents …”. Jaczynski Dec., EX2001 at ¶ 30.
`
`• Dr. Tallon explains that "[i]f the standard deviation is interpreted to be in units of weight
`percent as Dr Jaczynski is arguing, then the range represented by ‘2±22’ is from -20 (2-22) to
`+24 (2+22). Clearly a value of negative 20% is impossible. A negative weight percentage of
`a component in a composition does not exist in reality, nor is it possible for Bottino II to have
`made a measurement of a negative weight of something. This highlights the error of Dr
`Jaczynski’s analysis." ‘567 Tallon Reply Dec., EX1086 at ¶ 48 (emphasis supplied).
`
`‘567 Petitioner’s Reply, Paper 14, pp. 15-18; see also ‘567 Tallon Reply Dec., EX1086 at ¶¶ 49-50.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 28
`
`
`
`FRICKE (EX1010) SUPPORTS BOTTINO II's
`DISCLOSURE OF LESS THAN 3% FREE FATTY ACIDS
`In the Petition it was noted:
`
`•
`
`“Fricke (Exhibit 1010), pp. 0002-0003 (krill ‘cooked on board immediately after
`hauling . . . showed a FFA [free fatty acid] content which was much lower, ranging
`from 1% to 3%. . . .’). Tallon Decl. (Exhibit 1006), ¶¶ . . . 260, 284 . . . .” ‘567
`Petition, Paper 2, State of the Art, p. 19.
`
`In support of the Petition, Dr. Tallon testified:
`
`•
`
`•
`
`“Fricke further reports that by cooking (i.e., heating) the krill to denature intrinsic
`enzymes in the krill they observed a free fatty level of only 1-3 wt%, a value that
`better reflects the krill oil in its natural state, which has not been decomposed,
`and that this was consistent with other reported literature.” ‘567 Tallon Dec.,
`EX1006 at ¶ 284 (emphasis supplied).
`“Bottino II’s disclosure of a krill extract having less than 3% free fatty acids is also
`confirmed by the prior art. Tallon Reply [Dec., EX1086], ¶¶ 32, 44-46. For example,
`Fricke states that the level of free fatty acids present in krill ‘rang[es] from 1% to
`3% of total lipids.’ Exhibit 1010, p. 0003 . . .”. ‘567 Reply, Paper 14, p. 9.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 29
`
`
`
`Rf RESULTS OF FREEMAN & WEST
`CANNOT BE APPLIED TO BOTTINO II
`
`• “The [TLC] method used by Bottino II . . . is described as a
`modification of the method of Freeman and West, with
`modifications to the solvent systems used and to the type of
`adsorbent used (a different silica). Both of these modifications
`are key determinants in the order of presentation of the
`components in TLC analysis.”
`
`‘567 Tallon Reply Dec., EX1086 at ¶ 20.
`
`‘567 Petitioner’s Reply, Paper 14, p. 10-12; Exhibit 1171, pp. 0004, 0013; see also ‘567 Tallon Reply Dec.,
`EX1086 at ¶¶ 17-29.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 30
`
`
`
`Rf RESULTS OF FREEMAN & WEST
`CANNOT BE APPLIED TO BOTTINO II [CONTINUED]
`
`Dr. Tallon testified:
`
`• “Though not expressly mentioned by Bottino II, but which would have
`been known to a POSITA, other variations in operational parameters,
`equipment used, and individual operating practices will also apply, and will
`further influence the observed Rf values for each component (see, e.g.,
`Neilsen, pp. 450-451, EX1179 at 0004-0005) particularly for a multi-
`stage solvent system."
`
`• "The Rf values observed in one analysis cannot be directly compared to
`Rf values used with different solvent systems, different adsorbent,
`different equipment, and different operating conditions. That is why
`reference standards are used to calibrate the analysis.”
`
`567 Tallon Reply Dec., EX1086 at ¶ 21 (emphasis supplied).
`
`‘567 Petitioner’s Reply, Paper 14, p. 10-12; Exhibit 1171, pp. 0004, 0013; see also ‘567 Tallon Reply Dec.,
`EX1086 at ¶¶ 17-29.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 31
`
`
`
`FREE FATTY ACIDS PREDOMINANTLY HAVE AN Rf TLC
`VALUE FALLING BETWEEN THE Rf TLC VALUES FOR
`DIGLYCERIDES AND TRIGLYCERIDES
`
`Zamora and Hidalgo, EX1177 at 0020; see also ‘567 Petitioner’s Reply, Paper 14, pp. 11-14;‘567 Tallon Reply
`Dec., EX1086 at ¶¶ 42-43.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 32
`
`
`
`FREE FATTY ACIDS PREDOMINENTLY HAVE AN Rf TLC VALUE
`FALLING BETWEEN THE Rf TLC VALUES FOR
`DIGLYCERIDES AND TRIGLYCERIDES [CONTINUED]
`
`‘567 Petitioner’s Reply, Paper 14, pp. 12-13; ‘567 Tallon Reply Dec., EX1086 at ¶ 26; see also Zamora and
`Hidalgo, EX1177 at 0020.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 33
`
`
`
`PATENT OWNER MISCHARACTERIZES
`DR. TALLON’S DEPOSITION TESTIMONY
`
`• Patent disingenuously argues: “Finally, it cannot be disputed that Freeman and West
`discloses that when its two solvent system is used for TLC, free fatty acids do not
`have an Rf between that of diglycerides and triglycerides as demonstrated in panel C
`of Figure 1 of Freeman and West, reproduced below. When deposed, Dr. Tallon
`was forced to admit this fact. Ex. 2020 (Tallon Dep.) p. 0042, l. 5 – 0043, l. 10).”
`‘567 Sur-Reply, Paper 17, p. 6.
`
`• Patent Owner asked questions as to what Freeman and West (EX2002) disclosed
`about its particular TLC solutions and it was quite clear that he was only agreeing
`that Freeman and West were disclosing what occurred in its experiments.
`
`In panel two -- sorry, strike that. In panel C of figure 1 of Exhibit
`“Q.
`2002, the free fatty acids do not migrate between triglycerides and
`diglycerides; is that correct?
`That's correct, yep, for the specific case in Friedman & West.”
`A.
`
`‘567 Tallon Reply Deposition, EX2002 at 43:4-10 (emphasis supplied).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 34
`
`
`
`DISINGENUOUS FRICKE ARGUMENTS
`
`• Patent Owner disingenuously argues that “The Board should
`ignore Petitioner’s assertions regarding Fricke 1984 (Ex. 1010)
`as it was not included in an instituted Ground and there are no
`arguments of record, for example on motivation to combine
`with the other references or reasonable expectation of success.”
`‘567 Sur-Reply, Paper 17, pp. 6-7, n2.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 35
`
`
`
`DISINGENUOUS FRICKE ARGUMENTS [CONTINUED]
`
`•
`
`In the Petition it was asserted that Bottino II disclosed the less than 3% FFA claim
`requirement citing to Dr. Tallon’s testimony supporting same and further asserting that Fricke,
`inter alia, supported Bottino II’s disclosure by providing evidence of from 1-3% FFA.
`
`• Patent Owner in its POR argued that Bottino II does not support Petitioner’s position.
`Petitioner in its Reply and Dr. Tallon in his declaration, inter alia, continued to assert that
`Fricke supports Bottino II's disclosure of less than 2% FFA. Nevertheless, Patent Owner in
`its Sur-Reply (Paper 17, pp. 6-7, fn.2) continues to argue that the Board should ignore
`Fricke’s FFA disclosure.
`
`• Petitioner's reliance on Fricke’s disclosure constitutes proper rebuttal evidence. In fact, the
`Federal Circuit has ruled:
`
`if the petition asserts that a claim requirement is met, provides a reason
`that the assertion is true, and cites evidentiary support for that reason,
`then reply material that fairly adds confirmation that the initially presented
`material does in fact support the assertion is not prohibited new material
`but a proper part of the record.
`
`AMC Multi-Cinema, Inc. v. Fall Line Patents, No. 2021-1051, 2021 U.S. App. LEXIS 29547, at *
`18 (Fed. Cir. Sept. 30, 2021); see, e.g., Genzyme Therapeutics Prods. L.P. v. Biomarin Pharm.
`Inc., 825 F.3d 1360, 1367 (Fed. Cir. 2016).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 36
`
`
`
`DISINGENUOUS FRICKE ARGUMENTS [CONTINUED]
`Petitioner relied on Fricke's disclosure of 1-3% free fatty acids as being consistent with
`the free faty acid content disclosed in Table 2 of Bottino II.
`
`• "Notably, the free fatty acid content disclosed in Bottino II is consistent with Fricke’s
`disclosure of a krill extract with 1-3% free fatty acids. Exhibit 1010, pp. 0002-0003.
`See Tallon Decl. (Exhibit 1006), ¶¶ 171-176." Petition, Paper 2, p. 22.
`
`• "The free fatty acid content disclosed in Bottino II is consistent with Fricke’s
`disclosure of a Euphausia superba extract with 1-3% free fatty acids. Exhibit 1010,
`pp. 0002-0003; supra, p. 27." Petition, Paper 2, p. 47, fn.5.
`
`•
`
`"Bottino II’s disclosure of a krill extract having less than 3% free fatty acids is also
`confirmed by the prior art. Tallon Reply, ¶¶ 32, 44-46. For example, Fricke states
`that the level of free fatty acids present in krill “rang[es] from 1% to 3% of total
`lipids.” Exhibit 1010, p. 0003; see, e.g., Exhibit 1173 (Phleger), p. 0004 (free fatty
`acids equal 1.1 - 1.8%); Tallon Reply, ¶¶ 44, 54." Petitioner's Reply, Paper 14, pp.
`9-10.
`
`• Dr. Tallon testified, inter alia: “A POSITA would have looked to references, such
`as Bottino II and Fricke to determine the components naturally found in krill”
`(EX1006 at ¶ 529, emphasis supplied).
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 37
`
`
`
`RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`IPR2020-01534
`
`U.S. Patent No. 10,010,567 B2
`
`PETITIONER’S DEMONSTRATIVES
`END
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`RIMFROST EXHIBIT 1180 SLIDE 38
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this the 11th day of February 2022, the foregoing PETITIONER’S
`
`DEMONSTRATIVES was served in its entirety on the following counsel of record by electronic service by email
`
`at the email addresses as set forth below in accordance with the consent set forth in Patent Owner’s Mandatory
`
`Notices Pursuant to 37 C.F.R. § 42.8.
`
`David A. Casimir
`J. Mitchell Jones
`CASIMIR JONES S.C.
`2275 Deming Way, Suite 310
`Middleton, WI 53562
`docketing@casimirjones.com
`dacasimir@casimirjones.com
`jmjones@casimirjones.com
`
`By: /Michael I. Chakansky/
`Michael I. Chakansky (Reg. No. 31,600)
`Hoffmann & Baron, LLP
`4 Century Drive
`Parsippany, N.J. 07054
`mchakansky@hbiplaw.com
`Tel: 973.331.1700
`
`
`
`
`
`
`
`
`
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