IN THE UNITED STATES PATENT AND TRADF;MARK O.FF'lCE
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`ln re Patent of: Ronald KRAMER et al.
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`Confirmation No.:
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`1074
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`Control No.:
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`90/014,311
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`Group Art Unit:
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`3991
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`Filed:
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`For:
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`June,3, 2019
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`Examiner:
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`Campell, Bruce R.
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`E-r: Parte Reexamination of Claims 1--23, 27, 28, 30, 31, 34, 46, 47, 49, 50, 53,
`62-84, 88, 89, 91, 92, 95, 107, 108, 110, 111, 114, 123, and 124 of U.S. Patent
`No. 8,455,531
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`Title:
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`AMINO ACID COMPOSITIONS
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`DECLARATION OF JON LUNDBERG
`UNDER37C.F.R.§1.132
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`I, Jon Lundberg MD, PhD. declares as follows:
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`l.
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`l am a Professor of Phannacology at the Karohnska lnstitutet (Stockholm, Sweden) and
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`the research group leader for Ph~rrnacological Nitric Oxide Research at the Depmtment of
`Physiology and Pharmacology at the Karolinska Institutet. I received my M.D. from the
`Karolinska Institute, Stockholm, Sweden, in 1993. My interest is in the biology of nitric oxide
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`(NO) and related nitrogen oxides. In 1994, my colleagues and I discovered a NO-synthase(cid:173)
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`independent pathway for NO generation in humans that results from the reduction of inorganic
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`nitrate and nitrite. My research is focused on characterizing NO--synthase--independent NO
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`generation from nitrate and nitrite and clarifying tbe role of NO in health and disease. My
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`curriculum vitae is attached as Exhibit A
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`2.
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`I am one of the Directors and Shareholders of Heartbeet Ltd. Heartbeet Ltd. has licensed
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`some of its patents and patent applications on inorganic nitrates and inorganic nitrites to
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`ThermoLife International, LLC ("1'hermoLife").
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`3.
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`As a person having skill in the relevant field of art, I have been engaged by ThermoLife
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`to provide our opinion regarding the following patent documents:
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`Page 1of5
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`Human Power of N
`EX1074
`Human Power of N v. Thermolife, PGR2022-00004
`Page 1 of 5
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`DECLARATION BY DR. LUNDBERG UNDER 37 C.F.R. §1.132
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`•
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`International Patent Application Publication W02005115175 to Harris and Howard,
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`published December 8, 2005 (hereinafter "Harris"); and
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`• U.S. Patent No. 5,576,351 to Yoshimura et aL. published November 9, 1996
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`(hereinafter "Y oshirrmra").
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`I understand that my comments should be on the relevant knowledge of the art up to the time
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`when these documents were published and whether these studies teach compositions that
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`comprise physiologically functional arn.ounts of nitrate, for example a pharmaceutically effective
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`amount of nitrate or a supplemental amount of nitrate.
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`4.
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`The general view in society and science in 2006 was that ingestion of nitrate and its
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`subsequent generation of nitrite are h~irmful because of increased risk of cancer and increased
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`risk of methemoglobinemia, especially in children. This view essentially has not changed, and
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`tbe authorities, including the European Food Safety Authority (EFSA) and the World Health
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`Organization (WHO), have not altered their recommendations of acceptable daily intake (ADI)
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`and levels in food and drinking water (see, for example, Evaluations on the Joint FAO/WHO
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`Expert Committee on Food Additives for Nitrate, attached as Exhibit B). In the United States, the
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`Food and Drug Administration limits sodium nitrate concentration to 500 ppm in cured meats
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`and fish as a food additive for preservation purposes (Exhibit C). SimiJar rules limiting nitrate
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`intake are established in the European lJnion (.Exhibit D). Thus, all nutritional advice was aimed
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`at minimizing nitrate intake. A justification for these limitations is that methemoglobinernia,
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`gastrointestinal disturbances, reduced steroid hormone production, thyroid hypertrophy, and
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`carcinogenic nitrosamine formation from reaction with free amino acids were well known
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`deleterious effects of nitrates (See e.g., Verrneer et al., "Volatile N-nitrosamine formation afler
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`intake of nitrate at the ADI level in combination witb a.n amine··rlch diet," Environ Health
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`Pet:~pect., 1998, 106(8): 459-463, attached as Exhibit E, and Panesar and Chan, "Decreased
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`Steroid Honnone Synthesis from inorganic Nitrite and Nitrate: Studies in Vitro and in Vivo,"
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`Toxicol Appl Pharmacol. 2000, 169(3): 222-30, attached as Exhibit F).
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`Page 2of5
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`{\.
`~if'~~
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`I
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`DECLARATION BY DR. LUNDBERG UNDER 37 C.F.R. §1.132
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`5.
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`According to my calculations, the compositions described in Harris and Yoshimura,
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`respectively, comprise about 0.1 mg thiamine .tnononitrate per dose and 0.53 mg thiamine
`mononitrate in the product composition. In terms of amount of nitrate ion, N03·, the ingestion of
`compositions described in Harris and Yoshimura respectively provide 0.02 mg nitrate per dose
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`and just under 0.1 mg nitrate in the product composition. These amounts fall far short of the
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`highest safe amount of nitrate that the regulations would perrnit frorn a person's typical exposure
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`to nitrate, such as from drinking water and eating cured meats.
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`6.
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`In my lab's experiments to study if there are any physiological effects of ingested nitrate
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`(for example, Larsen et al, "Effects of dietary nitrate on blood pressure in healthy volunteers," N
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`Engl J Med., 2006, 355(26):2792-2793, hereinafter "Larsen 2006", attached as Exhibit G, and
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`Larsen et al., "Effects of dietary nitrate on oxygen cost during exercise," Acta Physiol (Oxj).,
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`2007, 191(1):59-66, hereinafter "Larsen 2007", attached as Exhibit H), we found that we must
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`administer to our human subjects O. l mmol nitratefkg body weight, which is about 6.2 mg/kg
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`body weight, to produce consistent .results demonstrating ad.ministration of nitrates actually could
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`produce any physiological effect We were not surprised by the comparatively high amount in
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`view of the acceptable daily intake amount of 3.7 mg/kg body weight. The average total
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`consumption of nitrate from daily meals in the USA is around 76 mg per day (Harsha and
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`Nathan, "Dietary sources of nitrite as a modulator of I/R injury", Kidney International, 2009,
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`75:1140-1144, attached as Exhibit I). Accordingly, we and other nitrate researchers expected
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`that any effect of nitrate administration, pharmacological or otherwise, such as vasodilation and
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`increase in athletic performance, would require amount.;; of nitrate that are over what one would
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`ingest from a typical meal, which would be around 20-30 mg of nitrate per meal.
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`7.
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`We encountered resistance by the ethics committee for the experiments reported in
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`Larsen 2006 and Larsen 2007 due to fhe fact that we wanted to administer inorganic nitrate to
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`human subjects. \Ve were only allowed to perform our studies using sodium nitrate, because the
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`study was for a short time and the dose administered was not higher than what could be achieved
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`from a normal diet (e.g. from eating beet roots or spinach). We also had to limit the scope of the
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`studies to determining the physiological responses to inorganic nitrate as opposed to any
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`Page 3 of 5
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`DECLARATION BY DR. LUNDBERG UNDER 37 C.F.R. §1.132
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`treatment of disease. It was helpful that sodium nitrate was a food additive in Sweden and did not
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`foll under the rules of a pharmaceutical.
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`8.
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`It should be noted that human sahva normaHy contains inorganic nitrate at concentrations
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`of 100-200 uM even in the absence of any nitrate intake. As approx. one liter of saliva is
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`swallowed daHy the "background" amount entering the body is already around 6--12 mg nitrate.
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`With dietary nitrate e.g. from intake of lettuce or beetroot in readily achievable amounts, nitrate
`exposure will increase > 10-fold. With th.is in mind it seems highly unlikely that ad(iing another
`0.1 mg of nitrate on top of this would produce any bio1ogicaUy meaningful effect whatsoever. Jn
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`other words, ingesting a dose of 0.1 mg nitrate, such as thrnugh ingestion of Yoshinmra's
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`compositions, would do absolutely nothing. Thus, a person having ordinary skill in the art would
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`not expect the amount of nitrate provided as thiamine mononitrnte in the compositions of Harris
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`or Yoshimura to have any pharmacological or physiological effect.
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`9.
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`Additionally, at this time of the experiments reported in Larsen 2.006 and Larsen 2007,
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`our peers a1so expressed skepticism and criticisms regarding the safety of nitrate and the position
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`that nitrate might have a beneficial effect Even years after Larsen 2006 and Larsen 2007, there
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`were the following example publications;
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`111 Winter et aL, "N-nitrosamine generation from ingested nitrate via nitric oxide in subjects
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`with and without gastroesophageaJ reflux," Gastroenterolog.r·. 2007 133(1): 164-74,
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`attached as Exhibit J;
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`• Panesar, "Downsides to the nitrate-nitrite-nitric oxide pathway in physiology and
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`therapeutics?" Nat Rev Drug Discov. 2008, (8):71 O; author reply 710, attached as Exhibit
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`K; and
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`qi> Carpentier et al., "Nitrate Supplementation, Exercise, and Kidney Function: Are There
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`Detrimental Effects?" Med Sci ()ports EY.erc. 2015, 47(7): 1519-22, attached as Exhibit L.
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`DECLARATION BY DR. LUNDBERG UNDER 37 C.F.R. §1.132
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`10.
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`fo view of the above, the arnounts of nitrate in the compositions disclosed in Barris and
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`Yoshimura are not amounts that a person having ordinary skill in the art would expect to produce
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`any physiological effects whatsoever, let al.one any pharmacological effect. In other words, the
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`nitrate found in the compositions of Harris and Yoshimura cannot reasonably be interpreted as a
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`pharmacologically effective, or even supplemental, amount of nitrate.
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`11,
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`I further declare that all statements made herein of my own knowledge are true, and that
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`all statements made on information and belief are believed to be true, and further, that these
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`statements were made with the knowledge that willful false statements and the like so made are
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`punishable by fine or imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code, and that such willful false statements may jeopardize the validity of US patents or patent
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`application where their patentability depends on these declarations.
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`By:
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`Dated:
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`Page 5 of 5
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