Trials@uspto.gov
`571.272.7822
`
`Paper No. 8
`Entered: August 16, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROSTAS,
`Petitioner,
`
`Vv.
`
`AKER BIOMARINE ANTARTIC AS,
`Patent Owner.
`
`Case IPR2017-00748
`Patent 9,028,877 B2
`
`Before LORA M. GREEN, ERICA A. FRANKLIN,and
`JACQUELINET. HARLOW,Administrative Patent Judges.
`
`GREEN,Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 CFR. § 42.108
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`1.
`
`INTRODUCTION
`
`Rimfrost AS (“Petitioner”) filed a Petition requesting an inter partes
`
`review of claims 1-19 of U.S. Patent No. 9,028,877 B2 (Ex. 1001, “the ’877
`
`patent”). Paper 2 (“Pet.”). Aker Biomarine Antarctic AS (“Patent Owner”),
`did not file a Preliminary Response tothe Petition.
`
`Institution of an inter partes review is authorized by statute when “the
`information presented in the petition .
`.
`. and any response .. . showsthat
`there is a reasonable likelihood that the petitioner would prevail with respect
`
`to at least 1 of the claims challengedin the petition.” 35 U.S.C. § 314; see
`37 C.F.R. §§ 42.4, 42.108. Upon considering the Petition, we determine that
`Petitioner has shown a reasonable likelihood that it would prevail in showing
`
`the unpatentability of challenged claims 1-19. Accordingly, we institute an
`
`inter partes review ofthose claims.
`
`A.
`
`Related Proceedings
`
`The ’877patent is asserted in Aker Biomarine Antarctic AS v. Olympic
`Holding AS, Case No. 1:16-CV-00035-LPS-CJB (D. Del.). Pet. 2; Paper 7, |
`2-3.! Petitioner has additionally challenged claims 1-19 of the *877 patent
`
`in IPR2017-00746, decided concurrently with the instant Petition. Paper 7,
`
`3. Petitioner also challenges U.S. Patent No. 9,078,905 B2 (the ’905 patent)
`in IPR2017-00745 and IPR2017-00747. Pet. 3. Both the’905 patent and the
`
`°877 patent are continuations of Application No. 12/057,775, filed March
`
`28, 2008.
`
`| The ’877 patent was also asserted in In the Matter of Certain Krill Oil
`Products and Krill Mealfor Production ofKrill Oil Products, Investigation
`No. 337-TA-1019 (USITC). Pet. 2-3; Paper 7,3. Petitioner states that the
`-ITC investigation “was effectively terminated.” Paper 7, 3.
`
`2
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`B.
`
`The ’877 Patent (Ex. 1001)
`
`The ’877 patent issued May 12, 2015, with Inge Bruheim,
`
`Snorre Tilseth, and Daniele Mancinelli as the listed co-inventors. Ex. 1001.
`
`The patent“relates to extracts from Antarctic krill that comprise bioactive
`
`fatty acids.” Jd. at 1:19-20.
`“Krill are small, shrimp-like animals, containing relatively high
`concentrations of phospholipids.” Ex. 1035 5. There are more than eighty
`species of Euphasiids, of which the Antarctic krill is a member. Jd.
`According to the ’877 patent, Antarctic krill may be found in great quantities
`in the Southern Ocean, off the coast of Antarctica. Ex. 1001, 1:24—26. The
`
`krill feed off of phytoplankton during the short summer, and during the
`winterits food supply is limited to ice algae, bacteria, marine detritus, as
`well as depleting body protein for energy, Jd. at 1:26-30.
`According to the °877 patent, “[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 1:46-52. The °877
`patent teaches that solvent extraction methods have beenusedto isolate the
`krill oil from the oil. Jd. at 1:31-32. Such methods have includedsteps of
`
`placing the material into a ketone solvent, such as acetone,to extract the
`lipid soluble fraction, and recovering the soluble lipid fraction from the solid
`contents using a solvent suchas ethanol. Jd. at 1:32-40. Those methods, the
`°877 patentasserts, “rely on the processing of frozenkrill that are
`transported from the Southern Oceantothe processing site,” which
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`transportation is expensive and mayresult in the degradation ofthekrill
`
`starting material. Id. at 2:3-6.
`The ’877 patent teaches, therefore, “methods for processing freshly
`caughtkrill at the site of capture and preferably on board a ship.” Jd. at
`10:18-20. Thekrill may be first subject to a protein denaturation step, such
`as a heating step, to avoid the formation of enzymatically decomposedoil
`constituents. Jd. at 9:43-50; 10:26-31. The “oil can be extracted by an
`
`optional selection of nonpolarandpolarsolvents including use of
`
`supercritical carbon dioxide.” Jd. at 9:52—54.
`
`C.
`Challenged Claims
`Petitioner challenges claims 1-19 of the ’877 patent. Claims 1 and 11
`are the independent challenged claims; claim | is representative andis
`reproduced below:
`
`1. A method of production ofkrill oil comprising:
`a) providing krill;
`b) treating said krill to denature lipases and phospholipases
`in said krill to provide a denatured krill product; and
`c) extracting oil from said denatured krill product with a
`polar solventto provide a krill oil with from about 3% to
`about 10% w/w ether phospholipids; from about 27% to
`50% w/w non-ether phospholipids so that the amount of
`total phospholipids in said krill oil is about 30% to 60%
`w/w; and from about 20% to 50% w/w triglycerides,
`wherein said steps a and b are performed onaship.
`
`Ex. 1001, 34:59-35:2.
`D.
`The Asserted Grounds of Unpatentability
`
`Petitioner challenges the patentability of claims 1-19 of the 877
`
`patent on the following ground(Pet. 7):
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`aChallenged
`
`
`
`Tanaka I
`
`12, 17, and 18
`
`
`
`
`
`
`
`
`
`
`
`
`
`Tanaka I
`
`Grantham, Fricke, Sampalis I,’
`
`and Tanaka I
`§ 103(a)
`Grantham,Fricke, Tanaka I, and
`
`Sampalis II®
`
`§ 103(a)
`
`.
`
`Petitioner relies also on the Declaration of Stephen Tallon, Ph.D.
`
`Ex. 1006.
`
`2. GJ. Grantham, The Utilization ofKrill, UNDP/FAO Southern Ocean
`Fisheries Survey Programme (1977) (“Grantham”)(Ex. 1032).
`3 Fricke etal., Lipid, Sterol and Fatty Acid Composition ofAntarctic Krill,
`19(11) Lipips 821-827 (“Fricke”) (Ex. 1010).
`4 Tanakaetal., Platelet-activating Factor (PAF)-like Phospholipids Formed
`During Peroxidation ofPhosphatidylcholines from Different Foodstuffs,
`§9(8) BIOSCI. BIOTECH. BIOCHEM. 1389-1393 (“Tanaka I”) (Ex. 1014).
`> NR. Bottino, The Fatty Acids ofAntarctic Phytoplankton and
`Euphausiids. Fatty Acid Exchange Among Trophic Levels ofthe Ross Sea,
`27 MARINE BIOLOGY 197—204 (1974) (“Bottino”) (Ex. 1007).
`6 Tanakaet al., Extraction ofPhospholipids from Salmon Roe with
`Supercritical Carbon Dioxide and an Entrainer, 53(9) J. Oleo Science 417—
`424 (2004) (“TanakaIT’) (Ex. 1015).
`7 Sampalis et al., Evaluation ofthe Effects ofNeptune Krill oil™on the
`ManagementofPremenstrual Syndrome and Dysmenorrhea, 8(2) ALT.
`MED.REV. 171-179 (2003) (““Sampalis I’) (Ex. 1012).
`8 Sampalis, WO 03/011873 A2, published February 13, 2003 (“Sampalis I)
`(Ex. 1013).
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`II.
`
`ANALYSIS
`
`A.
`
`Claim Construction
`
`Weinterpret claims using the “broadest reasonable construction in
`light of the specification of the patent in which [they] appear[].” 37 C.F.R.
`§ 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 1368. Ct. 2131,
`2144-46 (2016). Under the broadest reasonable construction standard, claim
`terms are generally given their ordinary and customary meaning, as would
`be understood by oneofordinary skill in the art at the time of the invention.
`In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). “Absent
`claim language carryinga narrow meaning, the PTO should only limit the
`claim based onthe specification . .. when [it] expressly disclaim[s] the
`broader definition.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
`“Although an inventoris indeed free to define the specific terms usedto
`describe his or her invention, this must be done with reasonableclarity,
`deliberateness, and precision.” Jn re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`
`1994).
`
`Although Petitioner offers several claim constructions (Pet. 18-29), at
`this stage of the proceeding, we determine that no explicit construction of
`any claim term is necessary to determine whetherto institute a trial in this
`case. See Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed.
`
`Cir. 2011) (“[C]laim terms need only be construed ‘to the extent necessary
`to resolve the controversy.’”) (quoting Vivid Techs., Inc. v. Am. Sci. &
`
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`B. Obviousness over the Combination of Grantham, Fricke,
`and Tanaka I
`Petitioner asserts that claims 1-3, 8, 9, 11, 12, 17, and 18 are rendered
`obvious by the combination of Grantham,. Fricke, and Tanaka I. Pet. 30-51.
`
`6
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`i.
`
`Overview of Grantham (Ex. 1032)
`
`Granthamis a report published by the Food and Agriculture
`
`Organization of the United Nations, United Nations Development
`Programme, regarding the utilization of krill. Ex. 1032. Grantham teaches
`that most commercial catches ofkrill appear to consist mainly of Euphasia
`
`Superba. Id. at 3.°
`
`According to Grantham:
`Althoughthe fat content of krill varies markedly, its
`composition would seem to remain fairly constant. It is
`characterized by its high content of complex (phospho)lipids
`(50%, mainly lecithins (phosphatidyl-choline) and cephalins
`(phosphatidyl ethanolamine)), about 30-40% neutralfats
`(glycerides), and about 8% unsaponifiable elements. Unlike
`other Antarctic zooplankters, it contains no waxes. Cholesterol
`is the only major sterol found, although traces of vitamin D and
`appreciable quantities of the pro-vitamin are also present. ....
`Mostof the commonfatty acids are present, notably oleic, C20:s,
`palmitic and myristic. The three ‘essentials’ are found,totalling
`5%. The erucic acid content is low. Several unusual species
`are also evident. The occasional reports of highfree fatty acid
`content (high acid value) are probably dueto lipolysis during
`frozen storage of samples.
`Id. at 11 (footnotes and references omitted).
`Grantham notesthat once harvested, krill spoil rapidly, particularly
`
`because the liver and stomach contain highly active enzymes,resulting in
`autolysis. Jd. at 18. Thus, Grantham teaches, “krill can be held at ambient
`temperatures for only very limited periods before being preserved by one
`meansor another, and that (apart from any physical damage that may ensue)
`it is not practicable to transfer the catch under these conditions from one ship
`
`9 Unless otherwise noted, the referenced page numberis the page numberin
`the original reference, and not the page numberaddedby theparties.
`
`7
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`to another factory vessel.” Jd. at 19. Grantham discloses the following
`
`method for processing krill on a ship (id. at 25):
`Fresh Cought_ceill
`
`Cwesh Froren Xsill -
`
`
`+
`A
`
` Comminute Microweve
`Treatment oi 640%
`
`
`
`
`
`Press _cok
`Sepawate:
`$
`Process
`.
`
`15% Protein
`Losses
`igbersebli
`(43%Ri)
`
`
`
`
`(Ferment)53-10% Sugor 29-60%RM (52% RM)
`duige
`e 9. Molosses
`17-25%Solids
`Meal,
`
`(oistit.)Alcon 810%RM
`
`Options!
`
`Sena
`i
`
`Exaporate
`
`Flash
`Coo!
`
`Bath
`40-50%
`(18% RM)
`Kec
`
`Hect Cocgulote
`90-97°C for 3-15 Miss.
`
`Seperete e.g.
`vibrating Screen
`509
`30-60%
`Flakes
`
`wewea
`taste
`
`Freeze, Ory,
`
`Pack
`
`: [_Frceze|Sterilise
`
`:
`Mox 5b
`Protain|Pack|
`Concentrote
`
`i
`Poste
`Mal
`20.35%RM (37%aRi)
`The flow chart showsthe production of a krill paste that may be stored at
`-18° to -20°C for up to a year that may be performed on freezer trawlers and
`
`on land. Jd. at 24—25. As can be seenin the flow chart, it includes a
`
`cooking(i.e., heating) step.
`
`Grantham teaches further that most krill products are unstable during
`
`storage, whether that storage be byfreezing, drying, orsterilization and,
`thus, benefit from some methodofstabilization priorto final preservation.
`Id. at 28. According to Grantham, heat treatment is the most commonsuch
`method, and “[bJoiling krill and krill products has been shownto inactivate
`
`8
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`the proteolytic, lipolytic and pigment degrading enzymes.” Jd. Grantham
`
`teaches that solvent extraction has been used to removethefats from the
`
`boiled krill. Jd. at 31. Grantham teaches:
`
`Krill fat, while difficult to remove by traditional means,
`has been seen to be of unusual composition in several respects.
`The high content of poly-unsaturated fatty acids, the presence
`of unusual fatty acid species, the absence of waxes, and the
`composition of the non-glyceride fractions suggest possible
`applications additional to the food and industrial outlets
`presently found for fish oils. A full assessmentis
`recommendedofthe possibilities for krill fat in the areas of
`pharmaceuticals, cosmetics, perfumery, dietetics and other
`specialised fields.
`
`Id. at 49.
`
`ii.
`
`Overview ofFricke (Ex. 1010)
`
`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, Abstract.
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`Table 1 of Fricke is reproduced below. Jd. at 822.
`TABLE?
`
`Lipid Composition of Antarctic Krili
`(Euphausia siperba Dane)iaagTARSSOTRSED
`
`Sample
`
`12/1977
`
`3/1981
`
`Total lipid content
`
`2.7402(% wet weight) 6.2 +0.3i
`
`
`
`Phospholipids
`Phosphatidytchotine
`Phosphatidylethanolamine
`Lysophosphatidylicholine
`Phosphatidylinosto)
`Cardiolipin
`Phoscphatidic acid
`
`Neutral lipids
`Triacylglycerols
`Free fatty acids
`Diacylglycerols
`Sterols
`Monoacylglycerols
`
`Others?
`
`Total
`
`36.6203
`6.1 £ 0.4
`1544.2
`0.94 6.1
`4.0204
`0.6264
`
`33.3405
`§.2 20.5
`2.8 + 0.4
`1.3 £0.4
`t.6£0.2
`.
`.
`
`33.3405
`16.£ + 1.3
`4.3 4 0.1
`1.74%0.1
`0.4 + 0.2
`
`46.4401
`&521.0
`3.6 * 6.1
`$.420.1
`09252
`
`0.9201
`
`O58 20.1
`
`—_
`
`98.9
`
`99.3
`
`Table 1 showsthe totallipid content and the lipid composition data for the
`two krill samples analyzed by Fricke. Jd. As indicated in Table1, the krill
`samples respectively included approximately 33.3% +/- 0.5% w/w and
`40.4% +/- 0.1% w/w triacylglycerols. Id.
`
`iii.|Overview of Tanaka I (Ex. 1014)
`Tanaka I looked at platelet-activating factor-like lipids formed during
`the peroxidation of phosphatidylcholines in hen yolk, salmonroe, sea urchin
`eggs, and krill. Ex. 1014, Abstract. Tanaka discloses the
`phosphatidylcholine subclasses, and their relative amounts, present in
`Antarctic krill (Euphausia superba) extract. Id. at 1390-1391. Tanaka
`explains that phosphatidylcholine was purified from crudekrill lipid extract
`using column chromatography and thin layer chromatography. Jd. at 1390.
`Successive degradationsofthe purified extract using alkaline andacid
`
`10
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`hydrolysis were then performed to measure the percentages of
`
`phosphatidylcholine subclasses in the extract. Jd.
`
`Table 1 of Tanaka is reproduced below. Jd. at 1391.
`
`Table I. Subclass Composition of PCs from Food Stuffs
`
`
`PC
`
`Diacyl
`
`Alkylacyl
`
`Alkenylacyl
`
`%
`<0)
`0.8+0.1
`99.2+0.2
`Hen egg yolk
`<0.1
`1.240.2
`98.8+40.2
`Salmon roe
`1.0408
`41.5403
`ST.S+1.1
`Sea urchin egg
`
`
`
`77.0#1.2 23.041.2Krill <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. Jd.
`
`iv.
`
`Analysis
`
`Petitioner contends! that Grantham discloses the process steps of
`
`independentclaims 1 and 11, that is, heat processing freshly caughtkrill to
`
`produce a denaturedkrill product, as well as the extraction of krill oil using a
`polar solvent. Pet. 39. The other references, Petitioner asserts, “provide an
`analysis of the natural components foundin krill oil.” Jd.
`
`Independentclaim 1 is drawn to a methodfor the production ofkrill
`
`to provide a krill oil having about 3% to about 10% w/w ether
`phospholipids; from about 27% to 50% w/w non-ether phospholipidsso that
`the amountoftotal phospholipids in said krill oil is about 30% to 60% w/w;
`
`and from about 20% to 50% w/wtriglycerides. The method steps include
`
`'0 We adopt Petitioner’s statement (Pet. 5—6) as to the level of skill of the
`ordinary artisan for purposes of this Decision. We note that the applied prior
`art also 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).
`
`1]
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`providing krill and treating the krill to denature lipases and phospholipases,
`
`wherein those two steps are performed ona ship. Theoil is then extracted
`
`from the denatured krill product with a polar solvent to obtain the specified
`
`krill oil.
`
`Independentclaim 11 is also drawn to a methodfor the production of
`
`krill to provideakrill oil having about 3% to about 10% w/w ether
`
`phospholipids; from about 27% to 50% w/w non-ether phospholipids so that
`
`the amountof total phospholipidsin said krill oil is about 30% to 60% w/w;
`
`and from about 20% to 50% w/w triglycerides. Ex. 1001, 36:1—7. It also
`
`requires the steps of producing a denatured krill product bytreating the krill
`
`to denature lipases and phospholipases, and extracting the oil from the
`
`denatured krill product with a polar solvent to obtain the specified krill oil.
`
`Id. at 35:24—36:2. Independent claim 11, however, does not specify that any
`
`of the steps are performed on a boat, but does require freshly harvested krill.
`
`Giventhe similarity of the steps of independent claim 11 to independent
`
`claim 1, we focus our analysis at this stage of the proceeding on independent
`
`claim 1. See, e.g., Pet. 30 (“Claim 11 combinessteps (a) and (b) of claim 1
`
`into step (a) of claim 11.”).
`
`Asto the limitation of “providing krill,” Petitioner notes that
`
`Grantham teaches “[o]nce the krill are caught, the catch should beutilized in
`
`a mannerthat maximizes their food potential and justifies the substantial
`
`efforts expended in their harvesting.” Jd. at 34 (quoting Ex. 1032, 18). As
`for the limitation that the krill be “freshly harvested” (claim 11) or that the
`
`krill have its initial process on a ship, Petitioner asserts that Grantham
`
`discloses that processingkrill shipboard is a commonprocess. Jd. at 37
`
`(citing Ex. 1032, 24-25; Ex. 1006 J 161-165). Fricke, Petitionerasserts,
`
`12
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`teaches also that samples ofkrill that were cooked on board ship. Jd. at 38
`
`(citing Ex. 1010, 822-823). Thus, Petitioner asserts, both Grantham and
`
`Fricke teach cooking of freshly harvested krill. /d. (citing Ex. 1006 § 221-
`
`223).
`
`The independentclaimsalso require a step oftreating the krill to
`
`provide a denaturedkrill product. Petitioner relies on Grantham for teaching
`
`that heat treatment is the most commontreatmentfor krill products, and that
`
`boiling krill andkrill products has been shownto inactivate the lipolytic
`
`enzymes. Jd. at 37 (citing Ex. 1032, 28; Ex. 1006 § 164). Petitioner also
`
`relies on Fricke for teaching that samplesofkrill were heated on board
`
`immediately after hauling. /d. at 38 (citing Ex. 1010, 822-823). Thus,
`
`Petitioner asserts, both Grantham andFricke teach cooking of freshly
`
`harvested krill in order to denature lipases and phospholipases.
`
`/d. (citing
`
`Ex. 1006 § 221-223).
`
`Petitioner asserts that the references also teach the step of extracting
`
`the krill oil with a polar solvent. In particular, Petitioner asserts that
`
`“Grantham discloses that ‘[s]olvent extraction has also been reported as a
`
`meansof removing fat and pigment from whole boiled krill or shell waste
`
`... solvent mixes include acetone andpetroleum ether, isopropanol and n-
`
`hexane, and chloroform.” Jd. at 38 (emphasis removed) (quoting Ex. 1032,
`
`31; citing Ex. 1006 J 166). Petitioner asserts further that Fricke also
`describes the use of a polar solventfor lipid extraction.
`/d. (citing Ex. 1010,
`
`821; Ex. 1006 § 99). Petitioner contends, therefore, that it would have been
`
`obviousto the ordinary artisan “to treat freshly harvested krill to obtain a
`
`denatured krill product and extract krill oil using a polar solvent.” Jd. at 39
`
`(citing Ex. 1006 J 200, 208-210).
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`The independentclaimsalso recite that composition ofthekrill oil
`
`produced by the claimed methodis “from about 3% to about 10% w/w ether
`
`phospholipids; from about 27% to 50% w/w non-ether phospholipids so that
`
`the amountof total phospholipidsin said krill oil is about 30% to 60% w/w;
`
`and from about 20% to 50% w/wtriglycerides.” According to Petitioner,
`
`“Grantham discloses various components ofextracted krill oil, including
`
`phospholipids, fatty acids, [and] triglycerides.” Jd. (citing Ex. 1032, 12,
`
`Table 6).
`
`Specifically, as to the recitation that the krill oil have 30% to 60%
`
`w/w total phospholipids, Petitioner relies on Table 1 of Fricke, which details
`
`the levels of the phospholipid classes. Jd. at 40. Petitioner asserts that, as
`
`shownbelow in annotated Table 1 of Fricke, “[b]y addingall of the listed
`
`phospholipidsin Table 1, the total phospholipid level for the 12/1977 sample
`is 45.7 weight % oftotal lipids; and for the 3/1981 sample,the total
`phospholipid levelis 44.0 weight %.” Jd. (citing Ex. 1006 4 104).
`
`14
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`TABLE}
`
`Lipid Composition of Antarctic Krill
`(Euphausia superba Dana)
`
`Total lipid content
`
`2.7.4 0.2(% wet weight) 6.2 £ 0.3
`
`
`
`Phospholipids
`Phosphatidylcholine
`Phosphatidylethanolamine
`Lysophosphatidylcholine
`Phosphatidylinositol
`Cardiolipin
`
`Phosphatidic acid Neutral lipids
`
`Triacylgly cerols
`Free fatty acids?
`Diacytglycerols
`Sterols
`Monoacylgtycerols
`
`Others
`
`33.320.5
`16.3 + 1.3
`1.340.1
`1.7290.1
`0.4 + 0.2
`
`40.420.1
`8.$+41.0
`3.62 0.1
`1426.1
`0.9 20.1
`
`0.9201
`
`0520.1
`
`99.3
`98.9
`Total
`
`
`Data are expressed as wt % of total lipids and
`represent means = standard deviation of 3 separate
`experiments.
`2Probably mostly artifacts.
`brraces of ltysophosphatidylethanolamine, phos-
`phatidylserine, sphingomyelin, glycolipids, sterol es-
`ters, waxes and carotenoids were detected.
`
`Id. at 41. Thus, Petitioner contends, “Fricke expressly teachestotal
`
`phospholipids within the ‘from about 30% to 60% w/w”range recited by
`
`claims 1 and 11.
`
`/d. (citing Ex. 1006 JJ 104, 213-214).
`
`Petitioner asserts that Tanaka as combined with Fricke discloses that
`
`krill oil extract includes from about 3% to about 15% w/w ether
`
`phospholipids as required by the independent claims. Pet. 42-44. Petitioner
`
`states 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%
`
`15
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`w/w, respectively, for the samples tested). Pet. 43 (citing Ex. 1010, 822,
`
`Table 1; Ex. 1006 J 102). Petitioner further explains that Tanaka discloses
`
`that 23.0% +/- 1.2% w/w of the phosphatidylcholine content of Antarctic
`
`krill is AAPC, an ether phospholipid. Pet. 42 (citing Ex. 1014, 1390; Ex.
`
`1006 ¢ 135). Relying on its expert, Dr. Tallon, Petitioner, therefore, asserts
`
`that an ordinarily skilled artisan would have understood that Antarctic krill
`
`oil includes approximately 7.8% w/w ofthe ether phospholipid AAPC. Pet.
`
`44 (explaining that 34% x .23% = 7.8%)(citing Ex. 1006 4 102).
`
`Petitioner additionally asserts that Tanaka as combined with Fricke
`
`discloses that krill oil extract includes from about 36.2% non-ether
`
`phospholipids. Jd. at 44-45. Specifically, Petitioner notes that as discussed
`
`above,Fricke discloses a phospholipid total of 44%, and an ether
`
`phospholipid total of 7.8%. /d. at 44. Again, relying on its expert
`
`Dr. Tallon, Petitioner asserts that “the lipid composition in the krill analyzed
`
`by Fricke contains about 36.2% non-ether phospholipids (i.e., 44.0% -
`
`7.8%),” which meets the limitation of “from about 27% to 50% w/w non-
`
`ether phospholipids.” Jd. (citing Ex. 1006 § 104).
`
`Concerningthe claim recitation that 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. Id. at 45-46. Specifically, Petitioner relies on the
`
`disclosure of Fricke of Antarctic krill samples including 33.3% +/- 0.5%
`
`w/w triacylglycerols and 40.4% +/- 0.1% w/w triacylglycerols as meeting
`
`this claim element. Pet. 43 (citing Ex. 1010, 822, Table 1; Ex. 1006
`
`102,
`
`216-217).
`
`16
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`Accordingto Petitioner, the ordinary artisan would have had a reason
`
`to combine the disclosure of Grantham,Fricke, and TanakaI. Jd. at 49-51.
`
`In particular, Petitioner notes that Grantham evidences that cooking,thatis,
`heat treatment, of freshly caughtkrill was well knownatthe time of
`
`invention, as was extracting krill oil using conventional organic solvents. Jd.
`
`at 49-50. Grantham specifically teaches, Petitioner asserts, that cooking the
`
`krill resulted in a reduction oflipolytic enzymes to avoid decomposition, and
`
`Fricke also taught the importance of reducing lipolytic enzymesto preserve
`phospholipids andtheir associated fatty acids, such as omega-3. Jd. at 50.
`Tanaka I as combined with Fricke discloses the componentsofthe krill oil
`
`extract. Id.
`
`Moreover, Dr. Tallon testifies that an ordinarily skilled artisan would
`
`have looked to references such as Fricke and TanakaI “to determine the
`
`componentsnaturally found in the krill oil extracted in Grantham.” Ex.
`1006
`235. Dr. Tallontestifies further that the lipid components described
`in the claims of the ’877 patent “are the natural lipid components in the krill
`
`oil that can be extracted using any of a numberof conventional solvents,”
`and that the relative proportions of those lipid components can “bevaried in
`predictable ways by applying a single solvent or combination of solvents...
`to selectively extract specific groups of lipid components .
`. ., and by
`blending these selective extracts in known andpredictable ways to produce a
`desired krill oil composition,” indicating that an ordinarily skilled artisan
`would have had a reasonable expectation of success in making the proposed
`
`combination. Ex. 1006 4 192. Wecredit Dr. Tallon’s testimony for
`
`purposesofinstitution.
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`Wehave reviewed Petitioner’s evidence and arguments and
`
`determine,at this stage in the proceeding that such evidence and arguments
`
`are supported by the current record. Based on that showing,Petitioner has
`
`sufficiently demonstrated a reasonable likelihood that independentclaims 1
`
`and 11 are rendered obvious by the combination of claims 1 and 11 rendered
`
`obvious by the combination of Grantham,Fricke, and Tanaka I. We have
`
`also reviewed Petitioner’s evidence and arguments as to dependent claims 2,
`
`3, 8, 9, 12, 17, and 18, and determine that Petitioner has demonstrated a
`
`reasonable that those claims are also rendered obvious by the combination of
`
`Grantham,Fricke, and Tanaka I. Thus, Petitioner has demonstrated a
`
`reasonablelikelihood that claims 1-3, 8, 9, 11, 12, 17, and 18, all of the
`
`claims included in GroundI, are rendered obvious by the combination
`Grantham, Fricke, and Tanaka I.
`
`C. Obviousness over the Combination of Grantham, Fricke,
`and Tanaka I. adding Bottino, Tanaka II, SampalisI,
`or Sampalis IT
`The remaining address dependent claims 4—7, 10, 13-16, and 19. As
`
`discussed above, we determine that Petitioner has established a reasonable
`
`likelihood that independent claims 1 and 11 are rendered obviousby the
`
`combination of Grantham,Fricke, and TanakalI. After reviewing
`
`Petitioner’s evidence and arguments with respect to each of those
`
`challenges, and determine,at this stage in the proceeding that such evidence
`and arguments are supported by the current record. Based on that showing,
`Petitioner has sufficiently demonstrated a reasonable likelihood that claims
`
`4,5, 13, and 14 are rendered obvious by the combination of Grantham,
`
`Fricke, Tanaka I, and Bottino; claims 6 and 15 are rendered obvious by the
`
`combination of Grantham, Fricke, Tanaka I, and TanakaII; claims 7 and 16
`
`18
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`are rendered obvious by the combination of Grantham,Fricke, TanakaI, and
`
`Sampalis I; and claims 10 and 19 are rendered obvious by the combination
`
`of Grantham,Fricke, Tanaka I, and Sampalis II.
`
`II.
`
`CONCLUSION
`
`For the foregoing reasons, we are persuadedthatthe Petition
`establishes a reasonable likelihood that Petitioner would prevail in showing
`that claims 1—19 of the ’877 patent are unpatentable as obvious under
`
`35 U.S.C. § 103.
`
`Ourdeterminationsat this stage of the proceeding are based on the
`
`evidentiary record currently before us. This decision to institute trial is not a
`
`final decision as to patentability of the claim for which inter partes review is
`
`instituted. Ourfinal decision will be based on the full record developed
`
`duringtrial.
`
`IV.
`
`ORDER
`
`In consideration of the foregoing, it is hereby:
`
`.
`
`ORDEREDthat pursuant to 35 U.S.C. §314(a), an inter partes review
`
`is hereby instituted on the following grounds:
`
`Claims 1-3, 8, 9, 11, 12, 17, and 18 as rendered obviousby the
`
`combination of Grantham,Fricke, and Tanaka J;
`
`Claims 4, 5, 13, and 14 as rendered obvious by the combination of
`
`Grantham,Fricke, TanakaI, and Bottino;
`
`Claims 6 and 15 as rendered obvious by the combination of
`
`Grantham, Fricke, Tanaka I, and TanakaII;
`
`Claims 7 and 16 as rendered obvious by the combination of
`
`Grantham,Fricke, Tanaka I, and Sampalis I; and
`
`19
`
`

`

`IPR2017-00748
`Patent 9,028,877 B2
`
`Claims 10 and 19 as rendered obvious by the combination of
`
`Grantham, Fricke, Tanaka I, and SampalisII,
`
`FURTHER ORDEREDthatno other proposed grounds of
`
`unpatentability are authorized; and
`
`FURTHER ORDEREDthat pursuantto 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.
`
`PETITIONER:
`
`James Harrington
`Michacl Chakansky
`Ronald Baron
`John Gallagher
`HOFFMANN & BARON, LLP
`jfhdocket@hbiplaw.com
`mchakansky@hbiplaw.com
`rbaron@hbiplaw.com
`jgallagher@hbiplaw.com
`
`PATENT OWNER:
`
`David Casmir
`John Jones
`CASIMIR JONES S.C.
`dacasmir@casmirjones.com
`jmjones@casmirjones.com
`docketing@casmirjones.com
`
`20
`
`

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