Trials@uspto.gov
`571-272-7822
`
`Paper No. 9
`Entered: August 16, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROSTAS,
`Petitioner,
`
`Vv.
`
`AKER BIOMARINE ANTARCTICAS,
`Patent Owner.
`
`Case IPR2017-00747
`Patent 9,078,905 B2
`
`Before LORA M. GREEN, ERICA A. FRANKLIN,and
`JACQUELINE T. HARLOW,Administrative Patent Judges.
`
`HARLOW,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`
`571-272-7822
`
`Paper No. 9
`Entered: August 16, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROSTAS,
`Petitioner,
`
`Vv.
`
`AKER BIOMARINE ANTARCTICAS,
`Patent Owner.
`
`Case IPR2017-00747
`Patent 9,078,905 B2
`
`Before LORA M. GREEN, ERICA A. FRANKLIN,and
`JACQUELINE T. HARLOW,Administrative Patent Judges.
`
`HARLOW,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`I.
`
`INTRODUCTION
`
`Rimfrost AS (“Petitioner”) filed a Petition requesting an inter partes
`
`review of claims 1—20 of U.S. Patent No. 9,078,905 B2 (Ex. 1001, “the
`
`°905 patent”). Paper 2 (“Pet.”). Aker Biomarine Antarctic AS (‘Patent
`
`Owner”) declined to file a Preliminary Response. We haveauthority to
`
`determine whetherto institute an inter partes review under 35 U.S.C. § 314,
`
`whichprovidesthat an inter partes review may notbeinstituted unless the
`
`information presented in the petition “showsthat there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.”
`
`For the reasonsset forth below, weinstitute an inter partes review of
`
`claims 1—20 of the ’905 patent.
`
`A. Related Matters
`
`The ’905 patent is asserted in Aker Biomarine Antarctic AS v. Olympic
`
`Holding AS, Case No. 1:16-CV-00035-LPS-CJB (D. Del.). Pet. 2; Paper 3,
`
`1. Petitioner has additionally challenged the claims of the ’905 patent in
`IPR2017-00745.' Paper 5,2. The parties have not identified any further,
`
`currently pending, related proceedings concerning the ’905 patent.”
`
`' Petitioner also challenges U.S. Patent No. 9,028,877 B2 in IPR2017-00746
`and IPR2017-00748. Paper 5, 2. Both the’905 patent and the ’877 patent
`are continuations of Application No. 12/057,775, filed March 28, 2008.
`
`* The °905 patent was also asserted in Jn the Matter ofCertain Krill Oil
`Products and Krill Mealfor Production ofKrill Oil Products, Investigation
`No. 337-TA-1019 (USITC) (Pet. 2-3; Paper 3, 1); however, Petitioner states
`that the investigation has been terminated with regard to the ’905 patent.
`2
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`B. The ’905 Patent
`
`The ’905 patent, titled “Bioeffective Krill Oil Compositions,” issued
`
`July 14, 2015, from U.S. Patent Application No. 14/490,221, filed
`
`September 18, 2014. Ex. 1001, at [54], [45], [21], [22]. The ’905 patentis a
`
`continuation of U.S. Patent Application No. 12/057,775, filed March 28,
`
`2008. Jd. at [63]. The ’905 patent claimspriority to U.S. Provisional Patent
`
`Application No. 60/920,483, filed March 28, 2007; U.S. Provisional Patent
`
`Application No. 60/975,058, filed September 25, 2007; U.S. Provisional
`
`Patent Application No. 60/983,446, filed October 29, 2007; and
`
`US. Provisional Patent Application No. 61/024,072, filed January 28, 2008.
`
`Id. at [60].
`
`The ’905 patent describes extracts from Antarctic krill that include
`
`bioactive fatty acids. Ex. 1001, 1:19-20. In particular, the ’905 patent
`
`discloses krill oil compositions having “high levels of astaxanthin,
`
`phospholipids, includ[ing] enriched quantities of ether phospholipids, and
`
`omega-3 fatty acids.” Jd. at 9:28-31. The 905 patent purports to improve
`
`upon known krill oil extraction techniques andthe resulting products by
`
`disclosing a method for performing extraction on krill meal, in order to
`eliminate the need to transport frozen krill over long distances prior to
`processing. /d. at 1:65-2:16, 9:31-43.
`
`The °905 patent acknowledgesthat krill oil compositions, including
`
`compositions having up to 60% w/w phospholipid content and as much as
`
`35% w/w EPA/DHA content, were knownin theart prior to the time of
`
`Pet. 3,n.1.
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`invention. Jd. at 1:52-57. The ’905 patentalso indicates that supercritical
`
`fluid extraction with solvent modifier was knownto be a useful method for
`
`extracting marine phospholipids from salmon roe. Jd. at 1:65-67.
`
`In addition, the ’905 patent recognizes that myriad health benefits
`
`have beenattributedto krill oil in the prior art. For example, the 905 patent
`
`states that “[k]rill oil compositions have been described as being effective
`
`for decreasing cholesterol, inhibiting platelet adhesion, inhibiting artery
`
`plaque formation, preventing hypertension, controlling arthritis symptoms,
`
`preventing skin cancer, enhancing transdermaltransport, reducing the
`
`symptoms of premenstrual symptomsor controlling blood glucose levels in
`
`a patient.” Jd. at 1:46-S2.
`
`C. Illustrative Claim
`
`Independentclaim 1, reproduced below,isillustrative of the claimed
`
`subject matter.
`
`l.
`
`Encapsulated krill oil comprising:
`
`a capsule containing an effective amountofkrill oil,
`said krill oil comprising from about 3% to about 15% w/w
`ether phospholipids.
`
`Ex. 1001, 35:47-50. Independentclaims 12 and 18 further specify the lipid
`
`composition ofthe krill oil, the type of krill used, and the material in which
`
`the krill oil is encapsulated. Jd. at 36:29-36, 36:48—-5S6.
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`D. Prior Art Relied Upon
`
`Petitioner relies upon the following as prior art references (Pet. 8):
`
`Randolph
`
`US 2005/0058728 Al
`
`Mar. 17, 2005
`
`(Ex. 1011)
`
`Bottino, The Fatty Acids ofAntarctic Phytoplankton and Euphausiids. Fatty
`Acid Exchange among Trophic Levels of the Ross Sea, 27 MARINE BIOLOGY,
`197-204 (1974) (Ex. 1007).
`
`Frickeet al., Lipid, Sterol and Fatty Acid Composition ofAntarctic Krill
`(Euphausia superba Dana), 19(11) LIPIDS 821-827 (1984) (Ex. 1010).
`
`Sampalis et al., Evaluation ofthe Effects ofNeptune Krill Oil™ on the
`ManagementofPremenstrual Syndrome and Dysmenorrhea, 8(2) ALT.
`MED.REV. 171-179 (2003) (Ex. 1012).
`
`Tanakaet al., Platelet-Activating Factor (PAF)-Like Phospholipids Formed
`During Peroxidation ofPhosphatidylcholines from Different Foodstuffs,
`59(8) Biosci. BIOTECH. BIOCHEM. 1389-1393 (1995) (Ex. 1014).
`
`Petitioneralso relies on the Declaration of Stephen J. Tallon, Ph.D.
`
`(Ex. 1006).
`
`E. The Asserted Grounds of Unpatentability
`
`Petitioner challenges the patentability of claims 1-20 of the
`
`°905 patent on the following grounds (Pet. 6—7):
`
`
`
`1-4, 6, 9, 10, 12, 15,
`;
`
`16, and 18 § 103(a)|Sampalis, Tanaka, and Fricke
`
`
`Sampalis, Tanaka, Fricke, and
`8 108@)|Randolph
`
`
`7, 8,
`11,
`13,
`14, 17
`Sampalis, Tanaka, Fricke, and
`19, and 20
`Bottino
`
`§ 103(a)
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`ll. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, the Board interprets claim terms in an
`
`unexpired patent according to the broadest reasonable constructionin light
`
`of the specification of the patent in which they appear. 37 C.F.R.
`
`§ 42,100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016)
`
`(affirming applicability of broadest reasonable construction standard to inter
`
`partes review proceedings). Under that standard, and absent any special
`
`definitions, we give claim terms their ordinary and customary meaning, as
`
`would be understood by oneofordinary skill in the art at the time of the
`invention, in the context of the entire disclosure. Jn re Translogic Tech.,
`
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Only those terms that are in
`
`controversy need be construed, and only to the extent necessary to resolve
`
`the controversy. Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`
`803 (Fed. Cir. 1999).
`
`Wedeterminethat, for purposes of this Decision, none of the terms in
`
`the challenged claims require express construction at this stage of the
`
`proceeding.
`
`B. Level of Ordinary Skill in the Art
`
`The level of ordinary skill in the art is a factual determination that
`
`provides a primary guarantee of objectivity in an obviousness analysis. Al-
`
`Site Corp. v. VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999)(citing
`
`Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Ryko Mfg. Co. v. Nu-
`
`Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991)).
`
`6
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`At this stage in the proceeding, we determinethat Petitioner’s
`
`description of a relevant skilled artisan as possessing ‘“‘an advanced degree in
`
`marine sciences, biochemistry, organic (especially lipid) chemistry,
`
`chemical or process engineering, or associated sciences”(Pet. 6), as well as
`
`having a complementary understanding of“organic chemistry and in
`
`particular lipid chemistry, chemical or process engineering, marine biology,
`
`nutrition, or associated sciences; and knowledge of or experiencein the field
`
`of extraction”(id.), in addition to “at least five years applied experience”
`
`(id.) is supported by the current record. See Ex. 1006 27. For purposes of
`
`this Decision, therefore, we adopt Petitioner’s description.
`
`Wealso note that the applied prior art reflects the appropriate level of
`
`skill at the time of the claimed invention. See Okajima v. Bourdeau, 261
`
`F.3d 1350, 1355 (Fed. Cir. 2001).
`
`C. Obviousness Ground of Unpatentability
`Based on Sampalis, Tanaka, and Fricke
`
`Petitioner asserts that claims 1-4, 6, 9, 10, 12, 15, 16, and 18 are
`
`unpatentable under § 103(a) as obvious in view of Sampalis, Tanaka, and
`
`Fricke. Pet. 26-38.
`
`The question of obviousnessis resolved onthe basis of underlying
`
`factual determinations including (1) the scope and contentofthe priorart,
`
`(2) any differences between the claimed subject matter and the priorart,
`
`(3) the level of skill in the art, and (4) where in evidence, so-called
`
`secondary considerations. Graham, 383 U.S. at 17-18. If the differences
`
`between the claimed subject matter and the prior art are such that the subject
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`matter, as a whole, would have been obviousat the time the invention was
`
`madeto a person having ordinary skill in the art to which said subject matter
`
`pertains, the claim is unpatentable under 35 U.S.C. § 103(a). KSR Int’l Co.
`
`v. Teleflex Inc., 550 U.S. 398, 406 (2007).
`
`1. Sampalis
`
`Sampalis describesa clinical trial “[t]o evaluate the effectiveness of
`NeptuneKrill Oil™ (NKO™)for the managementof premenstrual
`
`syndrome and dysmenorrhea.” Ex. 1012, 1. Sampalis explains that Neptune
`
`Krill Oil is “extracted from Antarctic krill also known as Euphausia
`
`superba. Euphausia superba, a zooplankton crustacean,is rich in
`
`phospholipids andtriglycerides carrying long-chain omega-3
`
`polyunsaturated fatty acids, mainly EPA and DHA,andin various potent
`
`antioxidants including vitamins A and E,astaxanthin, and a novel
`flavonoid.” Jd. at 4.
`|
`
`Sampalis discloses that each patient in the clinical trial was “‘asked to
`
`take two 1-gram soft gels of either NKO or omega-3 18:12 fish oil (fish oil
`
`containing 18% EPA and 12% DHA)once daily with meals duringthefirst
`
`month ofthetrial.” Jd. Sampalis reports that “[t]he final results of the
`
`present study suggest within a high level of confidence that Neptune Krill
`
`Oil can significantly reduce the physical and emotional symptomsrelated to
`
`premenstrual syndrome,andis significantly more effective for the
`
`management of dysmenorrhea and emotional premenstrual symptomsthan
`
`fish oil.” Jd. at 8.
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`2. Fricke
`
`Fricke discloses the “lipid classes, fatty acids of total and individual
`
`lipids and sterols of Antarctic krill (Euphausia superba Dana) from two
`
`areas of the Antarctic Ocean” as determined by thin layer chromatography,
`gas liquid chromatography,and gas liquid chromatography/mass
`spectrometry analyses. Ex. 1010, 1.
`
`Table 1 of Fricke is reproduced below.
`TABLE }
`
`Lipid Composition of Antarctic Krill
`(Guphausie superba Dana)
`
`Sample
`
`12/1977
`
`3/1981
`
`Total lipid content
`(% wet weight)
`
`Phospholipids
`Phosphatidylchotine
`Phosphatidylethanolamine
`Lysophosphatidylcholine
`Phosphatidylinosito)
`Cardialipin
`Phosphatidic acid
`
`Neutral lipids
`Triacylglycerols
`Frev fatty acids?
`Diacylzlycerols
`Sterols
`Monoacylglycerols
`
`Others?
`
`Total
`
`2.7 40.2
`
`6.24 0.3
`
`3
`
`eooocKebaueNDO
`SrSoranROOuUED
`HottthHot
`beIFltHePteossorewwmeWwA
`=eerrsyio #
`SyWew&
`
`_-
`
`eo
`
`wm
`
`Lad
`
`98.9
`
`99.3
`
`Table 1 showsthe total lipid content and the lipid composition data for the
`
`two krill samples analyzed by Fricke. /d. at 2. As indicated in Table 1, the
`
`krill samples respectively included approximately 44.0% +/- 2.0% w/w and
`
`45.7 +/- 1.6% w/w phospholipids, and 33.3% +/- 0.5% w/w and 40.4%
`
`+/- 0.1% w/w triacylglycerols. Id.
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`3. Tanaka
`
`Tanaka discloses the phosphatidylcholine subclasses, and their
`
`relative amounts, present in Antarctic krill (Euphausia superba) extract.
`
`Ex. 1014, 2, 3. Tanaka explains that phosphatidylcholine was purified from
`
`crude krill lipid extract using column chromatography andthin layer
`
`chromatography. Id. at 2. Successive degradationsof the purified extract
`
`using alkaline and acid hydrolysis were then performed to measure the
`
`percentages of phosphatidylcholine subclasses in the extract. Id.
`
`Table 1 of Tanaka is reproduced below.
`
`Table I. Subclass Composition of PCs from Food Stuffs
` STS ere erasoccONT feet Smo
`
`
`
`PC
`
`
`Diacyl
`
`Alkylacyl
`Alkenylacyl
`
`
`Hen egg yolk
`Salmon roc
`Sea urchin egg
`Krill
`
`
`99.2+0.2
`98.8 + 0.2
`57.5 1.1
`F70#1.2
`
`
`%
`0.8+0.1
`1.24+0.2
`41.540.3
`23.04 1.2
`
`<0.1
`<0.1
`1.0+0.8
`<0.)
`
`
`Values are means + SE for four experiments.
`
`Table 1 showsthat the ether phospholipid alkylacylphosphatidylcholine
`
`(“AAPC”) accounted for 23.0% +/- 1.2% of the total phosphatidylcholine
`
`present in Antarctic krill extract. /d. at 3.
`
`4. Obviousness Analysis
`
`a. Claim 1
`
`Petitioner contends that Sampalis discloses the administration of an
`
`effective amount of encapsulated Antarctic krill oil in the form ofa soft gel.
`
`Pet. 26-27; Ex. 1006 ff] 68-71; Ex. 1012, 4. In support of this position,
`
`Petitioner’s expert, Dr. Tallon, testifies that Sampalis “discloses the use of
`
`10
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`an amountofkrill oil in soft gel (capsules) to effectively treat symptoms
`
`related to PMS.” Ex. 1006 { 194.
`Petitioner additionally asserts that Tanaka,in view ofFricke, discloses
`that krill oil extract includes from about 3% to about 15% w/w ether
`
`phospholipids as required by claim 1. Pet. 26-30. Petitionerstates that
`
`Fricke teaches that phosphatidylcholine makes up approximately 34% w/w
`of Antarctic krill lipids (35.6% +/- 0.1% w/w and 33.3% +/- 0.5% w/w,
`
`respectively, for the samples tested). Pet. 28-29; Ex. 1006 J 98; Ex. 1010,
`
`2. Petitioner further explains that Tanaka discloses that 23.0% +/- 1.2% w/w
`
`of the phosphatidylcholine content of Antarctic krill is AAPC. Pet. 27-28;
`
`Ex. 1006 § 130, 131; Ex. 1014, 3. Relying on its expert, Dr. Tallon,
`
`Petitioner, therefore, asserts that an ordinarily skilled artisan would have
`
`understood that Antarctic krill oil includes approximately 8% w/w of the
`
`ether phospholipid AAPC. Pet. 30 (explaining that 34% x 23% = 7.8%);
`
`Ex. 1006 J 98, 99.
`
`Accordingto Petitioner, it would have been obviousto a person of
`
`ordinary skill in the art to combine Sampalis, Tanaka, and Fricke in order to
`
`formulate a krill oil dietary supplementincluding an effective amountof
`
`krill extract and having the health benefits disclosed by Sampalis. Pet. 37;
`
`Ex. 1006 § 217. In support of this position, Dr. Tallon testifies that an
`
`ordinarily skilled artisan would have sought to combine Sampalis, Tanaka,
`
`and Fricke because “Sampalis I recognizes the health benefits of the
`
`encapsulated krill oil to treat symptoms associated with PMS,including the
`
`management of premenstrual syndrome and dysmenorrhea, and TanakaI
`
`and Fricke disclose the variouskrill oil lipid components.” Ex. 1006 § 217.
`
`11
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`Dr. Tallon further testifies that an ordinarily skilled artisan would have been
`
`aware of the “laundry list of reasons” whykrill extract provides a superior
`
`source of phospholipids, and would have looked to Tanaka and Fricke to
`
`ascertain the componentsofkrill oil as yielded by standard extraction
`
`methodsin order to develop an encapsulated krill oil supplement. /d.
`
`In addition, Dr. Tallon testifies that the lipid components described in
`
`the claims of the °905 patent “are the natural lipid components in the krill oil
`
`that can be extracted using any of a numberof conventional solvents”
`
`(Ex. 1006 § 186), and that a relevant skilled artisan would have understood
`
`that the relative proportions of those lipid components could “be varied in
`
`predictable ways by applying a single solvent or combination of solvents
`
`including supercritical fluid extraction to selectively extract specific groups
`
`of lipid components based ontheir different solubility, and by blending these
`
`selective extracts in known and predictable ways to produce a desired
`
`composition”(id.). Dr. Tallon accordingly concludesthat it would have
`
`“been a simple matter’ for an ordinarily skilled artisan to combine Sampalis,
`
`Tanaka,and Fricketo arrive at the claimed invention. Jd. § 217.
`
`b. Claim 12
`
`Petitioner relies on the same teachings of Sampalis, Tanaka, and
`
`Fricke described above concerning claim 1 to support its contention that an
`
`“Te]ncapsulated krill oil comprising: a capsule containing an effective
`
`amountofkrill oil, said krill oil comprising from about 3% to about
`
`10% w/w ether phospholipids” would have been obviousto an ordinarily
`skilled artisan at the time of invention of the ’905 patent. Pet. 31, 35;
`
`12
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`Ex. 1006 F§ 98, 100, 196, 203, 212. In this regard, Petitioner points out that
`
`the approximately 8% w/w ether phospholipid concentration disclosed by
`
`Tanakain view ofFricke falls within the range of about 3% to about 10%
`
`w/w ether phospholipids recited in claim 12. Pet. 31, 35.
`
`Petitioner also asserts that the krill extract disclosed by Fricke
`
`includes from about 27% to 50% w/w non-ether phospholipids, such that the
`
`amountoftotal phospholipids in the composition is from about 30% to about
`
`60% w/w. Pet. 31-33, 35; Ex. 1006 4 100, 204, 212. In support of this
`
`contention, Petitioner explains that Table 1 of Fricke teaches that the tested
`
`krill samples respectively include 44.0% +/- 2.0% w/w and 45.7 +/- 1.6%
`
`w/w total phospholipids. Pet. 31-32, 35; Ex. 1006 {¥ 100, 204, 212.
`
`Petitioner asserts that this disclosure by Fricke, in combination with the
`
`above described disclosure of Tanaka in view ofFricke that krill oil includes
`
`approximately 8% w/w ether phospholipidssatisfies the claim 12
`
`requirement for about 27% to 50% w/w non-ether phospholipids, and from
`
`about 30% to about 60% w/w total phospholipids. Pet. 32-33, 35; Ex. 1006
`
`qq 100, 205, 212.
`
`Concerning the claim 12 requirementthat the krill extract include
`from about 20% to 50% w/wtriglycerides, Petitioner asserts that Fricke’s
`disclosure, in Table 1, of the lipid composition of Antarctic krill satisfies this
`
`claim requirement. Pet. 33, 35; Ex. 1006 f{ 97, 205, 212; Ex. 1010, 2.
`
`Specifically, Petitioner identifies disclosure by Fricke of Antarctic krill
`samples including 33.3% +/- 0.5% w/w and 40.4% +/- 0.1% w/w
`
`triacylglycerols as meeting this claim element. Pet. 33, 35; Ex. 1006 ff 97,
`212; Ex. 1010,2.
`|
`
`13
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`c. Claim 18
`
`Claim 18 differs from claim 12 by reciting in its preamble that the
`
`claimed krill oil is Antarctic krill oil, and further requiring that the recited
`
`capsule is a soft gel capsule. Compare Ex. 1001, 36:49-56,with id. at
`
`36:30-36. Petitioner contends that Sampalis and Fricke each disclose the
`
`extraction of krill oil from Antarctic krill, and that Sampalis discloses the
`
`use of a soft gel capsule dosage form for Antarctic krill oil. Pet. 36-37;
`
`Ex. 1006 J] 68, 69, 71, 216, 217; Ex. 1010, 2; Ex. 1012, 4. Petitioner relies
`
`on the same arguments concerning the reason to combine, and reasonable
`
`expectation of success in combining Sampalis, Tanaka, and Fricke described
`
`above concerning claim 1.
`
`5. Conclusion
`
`Based upon our review of the current record, we discern no deficiency
`
`in Petitioner’s characterization of the cited references and the knowledgein
`
`the art, or in Petitioner’s assertions as to the reasonable inferences an
`
`ordinary artisan would make from those references. Thus, based on the
`
`information presentedat this stage of the proceeding, Petitioner has shown
`
`sufficiently that there is a reasonable likelihood that it would prevail in
`
`establishing the unpatentability of independent claims 1, 12, and 18 overthe
`
`combined references. Further, at this stage in the proceeding, for reasons
`
`discussed by Petitioner (see Pet. 26-38), we are satisfied that Petitioner has
`
`established a reasonable likelihood that it would prevail in showing the
`
`unpatentability of dependent claims 2-4, 6, 9, 10, 15, and 16.
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`D, Obviousness Ground of Unpatentability
`Based on Sampalis, Tanaka, Fricke, and Randolph
`
`Petitioner asserts that claim 5 is unpatentable under § 103(a) as
`
`obvious in view of Sampalis, Tanaka, Fricke, and Randolph. Pet. 39-43.
`
`Claim 5 depends from claim 1 and further requires that the “capsule
`
`contains a phytonutrient derived from a source other than krill.” Ex. 1001,
`
`35:57-59. Petitioner relies on Randolphto address this claim requirement.
`
`Pet. 39-43, Atthis stage in the proceeding, for the reasons discussed by
`
`Petitioner(see id.), we are satisfied that Petitioner has established a
`
`reasonablelikelihoodthat it would prevail in showing the unpatentability of
`
`dependent claim 5 in view of Sampalis, Tanaka, Fricke, and Randolph.
`
`E. Obviousness Ground of Unpatentability
`Based on Sampalis, Tanaka, Fricke, and Bottino
`
`Petitioner asserts that claims 7, 8, 11, 13, 14, 17, 19, and 20 are
`
`unpatentable under § 103(a) as obvious in view of Sampalis, Tanaka, Fricke,
`
`and Bottino. Pet. 43-53.
`
`Dependentclaims7, 13,° and 19 further define the encapsulatedkrill
`
`oil, and specify that the claimedkrill oil “comprises from about 20% to 35%
`
`omega-3 fatty acids as a percentageoftotal fatty acids in said composition.”
`
`Ex. 1001, 36:17-19, 36:37-39, 36:57—59. Petitioner relies on Bottino to
`
`3 As Petitioner explains (Pet. 43, n.3),it appears that claim 13 includes a
`typographical error, and should depend from claim 12, rather than claim 6,
`as claim 13 is identical to claim 7 in its current form. Our unpatentability
`determination applies with equal force regardless of whether claim 6 or
`claim 12 provides the antecedentbasis for claim 13.
`15
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`address this claim requirement. Pet. 43-46, 52-53. At this stage in the
`proceeding, for the reasons discussed by Petitioner (see id.), we are satisfied
`
`that Petitioner has established a reasonablelikelihood that it would prevail in
`showing the unpatentability of dependent claims 7, 13, and 19 in view of
`
`Sampalis, Tanaka, Fricke, and Bottino.
`
`Claims 8, 14, and 20 dependrespectively from claims 7, 13, and 19,
`
`and additionally require that “from about 70% to 95% of said omega-3 fatty
`acids are attached to said phospholipids.” Ex. 1001, 36:20-22, 36:40-42,
`
`36:60-62. Petitioner relies on Fricke to address this claim element. Pet. 46-
`
`50, 52-53. At this stage in the proceeding, for the reasons discussed by
`' Petitioner(see id.), we are satisfied that Petitioner has established a
`
`reasonable likelihood that it would prevail in showing the unpatentability of
`dependent claims 8, 14, and 20 in view of Sampalis, Tanaka, Fricke, and
`
`Bottino.
`
`Claims 11 and 17 depend from claims 1 and 12, respectively, and
`
`further requires that the “krill oil comprises less than about 0.45% w/w
`
`arachadonic acid.” Ex. 1001, 36:27—28, 36:47-48. Petitioner relies on
`
`Bottino to address this claim requirement. Pet. 50-53. At this stage in the
`
`proceeding,for the reasons discussed by Petitioner (see Pet. 50-53), we are
`
`satisfied that Petitioner has established a reasonable likelihood that it would
`
`prevail in showing the unpatentability of dependent claims 11 and 17 in
`
`view of Sampalis, Tanaka, Fricke, and Bottino.
`
`16
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`Il. CONCLUSION
`
`For the foregoing reasons, we concludethat the information presented
`
`in the Petition establishes that there is a reasonable likelihood that Petitioner
`
`would prevail in showing that claims 1-20 of the ’905 patent are
`
`unpatentable. Accordingly, we institute an inter partes review of those
`
`claims.
`
`At this stage in the proceeding, the Board has not madea final
`
`determination asto the construction of any claim term orthe patentability of
`any challenged claim.
`
`17
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`In consideration of the foregoing, it is hereby:
`
`IV. ORDER
`
`ORDEREDthat pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is instituted as to claims 1-20 of the ’905 patent on the following
`
`grounds of unpatentability:
`
`A.
`
`Claims 1-4, 6, 9, 10, 12, 15, 16, and 18 under 35 U.S.C.
`
`§ 103(a) as obvious over Sampalis, Tanaka, and Fricke;
`
`B.
`
`Claim 5 under 35 U.S.C. § 103(a) as obvious over Sampalis,
`
`Tanaka, Fricke, and Randolph; and
`
`C.
`
`Claims 7, 8, 11, 13, 14, 17, 19, and 20 under 35 U.S.C. § 103(a)
`
`as obvious over Sampalis, Tanaka, Fricke, and Bottino; and
`
`FURTHER ORDEREDthat no other groundof unpatentability
`asserted in the Petition is authorized for this inter partes review; and
`
`FURTHER ORDEREDthatpursuantto 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given ofthe institution ofa trial
`
`commencingon the entry date of this Decision.
`
`18
`
`
`
`IPR2017-00747
`Patent 9,078,905 B2
`
`PETITIONERS:
`
`James Harrington
`Michael Chakansky
`Ronald Baron
`John Gallagher
`HOFFMANN & BARON, LLP
`jfhdocket@hbiplaw.com
`mchakansky@hbiplaw.com
`rbaron@hbiplaw.com
`igallagher@hbiplaw.com
`jtgdocket@hbiplaw.com
`
`PATENT OWNER:
`
`David Casimir
`J. Mitchell Jones
`CASIMIR JONESS.C.
`dacasimir@casimirjones.com
`jmjones@casimirjones.com
`docketing(@casimirjones.com
`
`19
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
