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 IPR2017-00746
`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 C.F.R. § 42.108
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`I.
`
`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 notfile a Preliminary Response to the 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, weinstitute an
`
`inter partes review ofthose claims.
`
`A.
`
`Related Proceedings
`
`The ’877 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 7,
`2~3.' Petitioner has additionally challenged claims 1-19 of the ’877 patent
`
`in IPR2017-00748, decided concurrently with the instant Petition. Paper7,
`
`3. Petitioner also challenges U.S. Patent No. 9,078,905 B2 (the ’905 patent)
`
`in JPR2017-00745 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 wasalso asserted in Jn 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
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`

`IPR2017-00746
`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 95. There are more than eighty
`
`species of Euphasiids, of which the Antarctic krill is a member. Id.
`
`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 supplyis limited to ice algae, bacteria, marine detritus, as
`
`well as depleting body protein for energy. Jd. at 1:26—30.
`
`Accordingto 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 symptomsof premenstrual symptomsor
`
`controlling blood glucose levels in a patient.” Jd. at 1:46-52. The 877
`
`patent teachesthat solvent extraction methods have been used to isolate the
`krill oil from the oil. Jd. at 1:31-32. Such methods have included steps 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 such as ethanol. Jd. at 1:32-40. Those methods,the
`
`°877 patent asserts, “rely on the processing of frozen krill that are
`
`transported from the Southern Oceanto the processing site,” which
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`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`transportation is expensive and mayresult in the degradationofthekrill
`
`starting material. Jd. 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. The krill may befirst 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 nonpolar and polar solvents 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
`
`repraduced below:
`
`1. A method of production ofkrill oil comprising:
`a) providingkrill;
`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 solvent to 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/wtriglycerides,
`wherein said steps a and b are performed ona ship.
`
`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 grounds(Pet. 6-7):
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`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`
`
`1 I
`
`IV —-
`
`
`
`
`
`
`
`Breivik,? Catchpole,’ and|§ 103(a)|1-3, 6, 8, 9, 11, 12, 15,
`I
`Fricke*
`17, and 18
`
`Breivik, Catchpole, § 103(a)|4,5, 13, and 14
`Fricke, and Bottino”
`
`l § 103(a)|7 and 16Breivik, Catchpole
`Fricke, and Sampalis I°
`Breivik, Catchpole
`Fricke, and Sampalis IT’
`
`
`
`
`
`
`
`§ 103(a)
`
`| 10 and 19
`:
`
`
`
`
`
`Petitionerrelies also on the Declaration of Stephen Tallon, Ph.D.
`
`Ex. 1006.
`
`Il.
`
`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, 136 S. Ct. 2131,
`2144-46 (2016). Under the broadest reasonable construction standard, claim
`
`2 Breivik, Pub. No. US 2010/0143571 A1, published June 10, 2010
`(“Breivik”’) (Ex. 1035).
`3 Catchpoleet al., WO 2007/123424 A1, published November1, 2007
`(“Catchpole”’) (Ex. 1009).
`4 Fricke et al., Lipid, Sterol and Fatty Acid Composition ofAntarctic Krill,
`19(11) Lipips 821-827 (“Fricke”) (Ex. 1010).
`5 N.R. 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 Sampaliset al., Evaluation ofthe Effects ofNeptune Krill Oil™on the
`Management ofPremenstrual Syndrome and Dysmenorrhea, 8(2) ALT.
`MED. REV. 171-179 (2003) (“Sampalis I’) (Ex. 1012)
`7 Sampalis, WO 03/011873 A2, published February 13, 2003 (“Sampalis I)
`(Ex. 1013).
`.
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`IPR2017-00746
`Patent 9,028,877 B2
`
`termsare generally given their ordinary and customary meaning, as would
`be understood by oneof ordinary 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 carrying a narrow meaning, the PTO should only limit the
`claim based on thespecification .
`.
`. when [it] expressly disclaim[s] the
`broaderdefinition.” Jn re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
`“Although an inventoris indeed free to define the specific terms used to
`describe his or her invention, this must be done with reasonable clarity,
`
`deliberateness, and precision.” Jn re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`1994).
`|
`Although Petitioner offers several claim constructions (Pet. 19-30), at
`this stage of the proceeding, we determinethat no explicit construction of
`any claim term is necessary to determine whethertoinstituteatrial 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 ofBreivik, Catchpole,
`and Fricke
`
`Petitioner asserts that claims 1-3, 6, 8, 9, 11, 12, 15, 17 and 18 are
`rendered obvious by the combination of Breivik, Catchpole, and Fricke.’
`
`Pet. 31-51.
`
`8 According to Petitioner, the ’877 patentis only entitled to an effective
`filing date of January 28, 2008, which is when support was addedforthe
`term “ether phospholipid”by the filing of U.S. Application No. 61/024,072.
`Pet. 7. Thus, Petitioner asserts that Breivik qualifies as prior art under 35
`U.S.C. § 102(e) as it has an effective filing date of November 16, 2006 by
`virtue of U.S. Provisional Application No. 60/859,289 (Ex. 1036), and was
`
`6
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`i.
`Overview ofBreivik (Ex. 1035)
`Breivik “relates to a process for preparing a substantially total lipid
`fraction from fresh [kr]ill, and a process for separating phospholipids from
`the other lipids.” Ex. 1035 4 1. According to Breivik, approximately 50%
`ofthe lipids in Euphasia superba are phospholipids, and thelipids contain
`lower amounts of environmental pollutants thantraditionalfish oils. Id.
`{§ 6-7. Breivik notes that krill lipases remain active after the krill is dead,
`and,thus, krill oil may contain an undesired amountof free fatty acids,
`making it desirable to use a processthat will provide for a low degree of
`hydrolysis of the krill lipids. Id. { 8.
`Breivik teachesthat its process “requires a minimum of handling of
`the raw materials, and is well suited to be used on fresh[kr]ill, for example
`
`onboard the fishing vessel.” Jd. § 15. According to Breivik, the process
`includes an optional heat pre-treatmentofthe krill to inactivate enzymatic
`decomposition ofthe lipids, ensuring a product with a lowlevel offree fatty
`
`acids. Id.
`
`Breivik describes an extraction process in which fresh krill is washed
`with ethanol, and the ethanol washedkrill is then extracted with supercritical
`CQ? containing 10% ethanol. Jd. {{39-40. Breivik also discloses a process
`in which the raw material is heated at 80°C for 5 minutes before the first
`
`wash with ethanol. Jd. 47. According to Breivik, “heat-treatment gives an
`
`filed as a PCT application on November 15, 2007. Jd. at 8. Petitioner
`asserts also that Catchpole qualifies as prior art under 35 U.S.C. § 102(e) or
`under 102(a) by virtue ofits internationalfiling date of April 20, 2007. Id.
`at 7-8; see also id. at 8n.1. We determinethat Petitioner has sufficiently
`established that Breivik and Catchpoleareprior art to the °877 patent for
`purposesofinstitution.
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`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`increasedyield oflipids compared to the same treatment with no heating.”
`
`Id. 51.
`
`il,
`Overview of Catchpole (Ex. 1009)
`Catchpole discloses “a process for separating lipid materials
`containing phospholipids” (Ex. 1009, 1:5—6°) in order to produce a product
`containing “desirable levels of particular phospholipids”(id. at 3:27—28).
`Catchpole states that phospholipids “have been implicated in conferring a
`numberof health benefits including brain health, skin health, eczema
`
`treatment, anti-infection, wound healing, gut microbiota modifications, anti-
`canceractivity, alleviation ofarthritis, improvement of cardiovascular
`health, and treatment of metabolic syndromes. They can also be usedin
`sports nutrition.” Jd. at 1:29-2:2. Catchpole further discloses that products
`having high levels of particular phospholipids “may be employed in a
`numberofapplications, including infant formulas,brain health, sports
`nutrition and dermatological compositions.” Jd. at 25:9-13.
`Catchpole describes in Example 18 the fractionationofkrill lipids
`from krill powder using a process that employs supercritical CO2inafirst
`extraction, and a CO» and absolute ethanol mixture in a second. Id. at 24:1—
`16. Table 16, reproduced below,reports the phospholipid concentrations
`presentin the krill oil extract obtained by Catchpole.
`
`Table 16 Composition, %
`
`° Unless otherwise noted, the referenced page numberis the page numberin
`the original reference, and not the page number addedby the parties.
`
`8
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`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`As shownin Table 16, the composition of Extract 2 includes 39.8%
`phosphatidylcholine (“PC”). Jd. at Table 16. The ether phospholipids
`alkylacylphosphatidylcholine (“AAPC’) and
`
`alkylacylphosphatidylethanolamine (“AAPE”) were also present in
`
`Extract 2, representing 4.6% and 0.2%,respectively, of the extracted
`composition. Jd. In addition, summing each of the reported phospholipid
`amounts reported for Extract 2 yields a total phospholipid concentration
`
`of 45.1%. Id.
`
`iii.
`
`Overview ofFricke (Ex. 1010)
`
`Fricke discloses the “lipid classes, fatty acids of total and individual
`lipids and sterols ofAntarctic 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.
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`Table 1 of Fricke is reproduced below. Jd. at 822.
`TABLE 1
`
`Lipid Composition of Antarctic Krilt
`(Euphausia superba Dans)
`
`Sample
`
`12/1977
`
`3/1981
`
`Total lipid content
`
`2.7% 0,2(% wet weight) 6.2 + 0.3a
`
`
`
`Phospholipids
`Phosphatidylchotine
`Phosphatidylethanolamine
`Lysophosphatidylchaline
`Phosphatidylinosite)
`Cardioligin
`Phosphatidic acid
`
`Neutrat lipids
`Triacylgiycerols
`Free fatty acids?
`Diacylglycerols
`Sterols
`Monoacylelycerols
`
`Others
`
`35,620.85
`6.1 + 6.4
`1.5244.2
`0.9 26.1
`£.0+ 0.4
`0.6 + 3.4
`
`33.340.5
`§.2£0.5
`2.640.4
`1.3 £ 0.4
`1.6£02
`°
`.
`
`33.340.5
`16.8 + 1.3
`13+ 0.1
`1746.1
`0.4 + 0.2
`
`40644 0.1
`8.5 + 1.0
`3.6 2 6.5
`14401
`0.9201
`
`O9t0.1
`
`O520.3
`
`99.3
`98.9
`Total
`
`
`Table 1 showsthetotallipid content and the lipid composition data for the
`twokrill samples analyzed by Fricke. Jd. As indicated in Table 1, the krill
`samples respectively included approximately 33.3% +/- 0.5% w/w and
`40.4% +/- 0.1% w/w triacylglycerols. Jd.
`
`iv._Analysis
`
`Petitioner contends! that the prior art teaches or suggests the method
`steps of independent claims 1 and 11, and the recited components ofthe krill
`are well known componentsofkrill oil that are well knownin the art. Pet.
`
`31, 40.
`
`'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).
`
`10
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`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 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. The method steps include
`providing krill and treating the krill to denature lipases and phospholipases,
`wherein those two steps are performed ona ship. The oil is then extracted
`from the denaturedkrill product with a polar solvent to obtain the specified
`
`krill oil.
`
`Independentclaim 11 is also drawn to a method forthe production of
`krill to provide a krill oil having about 3% to about 10% w/w ether
`phospholipids; from about 27% to 50% w/w non-ether phospholipids so that
`the amount oftotal phospholipids in 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 denaturedkrill product by treating the krill
`to denature lipases and phospholipases, and extracting the oil from the
`denaturedkrill product with a polar solvent to obtain the specified krill oil.
`Independent claim 11, however, does not specify that any of the steps are
`performed onaboat,but does require freshly harvestedkrill. Jd. at 35:24—
`36:2. Given the similarity of the steps of independent claim 11 to
`independent claim 1, we focus ouranalysis at this stage of the proceeding on
`independentclaim 1. See, e.g., Pet. 38 (“Claim 11 combinessteps (a) and
`(b) of claim 1 into step (a) of claim 11.”).
`Asto the limitation of “providingkrill,” Petitioner notes that Breivik
`‘teaches a process for preparing a lipid fraction from fresh krill. Pet. 31
`(citing Ex. 1035 J 14). Petitioner notes further that Fricke also discloses
`
`11
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`obtaininglipids from krill. Jd. at 31-32. Thus, Petitioner asserts, “both
`Breivik and Fricke disclose providing krill for lipid extraction.” Jd. at 32.
`
`As forthe limitation that the krill be “freshly harvested”(claim 11) or that
`
`the krill have its initial process on a ship (claim 1), Petitioner relies on
`Breivik for teaching that its process requires a minimum ofhandling of the
`raw materials, andis best using fresh krill, such as, for example, on board
`the fishing vessel.
`/d. at 38-39 (citing Ex. 1035 § 15). Fricke, Petitioner
`asserts, teachesalso that samples ofkrill that were cooked on board ship. Jd.
`at 39 (citing Ex. 1010, 822-823). Thus, Petitioner contends, it would have
`been obviousto the ordinary artisan at the time of invention “to treat ‘freshly
`
`harvested krill’ ({[c]laim 11) ‘on a ship’ ([c]laim 1).” Jd.
`The independentclaimsalso require a step oftreating the krill to
`provide a denaturedkrill product. Petitioner relies on Breivik for teaching
`an “optional pre-treatment involving short-term heating ofthe fresh krill will
`also give an inactivation of enzymatic decompositionofthelipids, thus
`ensuring a product with very low levels of free fatty acids.” Id. at 32
`(quoting Ex. 1035
`15). Petitioner also relies on Fricke for teaching that
`samples ofkrill were heated on board immediately after hauling, and that the
`samplesthat were heated showeda lowerfree fatty acid content than those
`samples that were not heated. Jd. at 33 (citing Ex. 1010, 822-823). Thus,
`Petitioner asserts, both Breivik and Fricke teach denaturing using heat. Jd. at
`
`33-34 (citing Ex. 1006 § 229).
`Asto the requirement of denaturing lipases and phospholipases,
`Petitioner’s expert, Dr. Tallontestifies that the ordinary artisan would have
`understood that heating or cookingthekrill as taught by Breivik and Fricke
`would denature the lipases and phospholipasesin the krill, thereby reducing
`
`12
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`

`IPR2017-00746
`Patent 9,028,877 B2
`
`and preventing the decomposition ofthe lipids and phospholipidsin the
`denatured krill product. Ex, 1006 § 229. Given Breivik’s and Fricke’s
`teaching that the formationoffree fatty acids is reduced by heating thekrill
`after capture, we credit Dr. Tallon’s testimonyatthis stage of the
`
`proceeding.
`
`Petitioner asserts that the references also teach the step of extracting
`
`the krill oil with a polar solvent. According to Petitioner, “[e]xtracting krill
`oil with a polar solvent is well known.” Pet. 34 (citing Ex. 1035 § 21). In
`particular, Petitioner relies on Breivik for teaching extracting krill with
`supercritical CO2 containing ethanol, and isolating the lipid fraction from the
`ethanol. Jd. Petitioner also cites Example 2 of Breivik in which freshkrill
`
`was washed with ethanolafter pretreating with heat, and the ethanolextract
`wasthen subject to supercritical fluid extraction with CO2 containing 10%
`
`ethanol. Jd. at 34-35 (citing Ex. 1035 { 47).
`Petitioneralso relies on Catchpole for teaching solvent extraction with
`a polar solvent, that is, supercritical CO2 containing ethanol, to extract
`phospholipids from krill. Jd. at 35 (citing Ex. 1009, 24:1-18; Ex. 1006
`{| 96). Petitioneralso relies on Fricke for teaching that lipid extraction was
`performedusing the method of Folch,'! noting that Folch discloses
`extracting the lipid fraction using a 2:1 chloroform-methanol mixture w/v.
`Id. (citing Ex. 1010, 821; Ex. 1017, 497; Ex. 1006 { 232)., Petitioner asserts,
`therefore, that it would have been obviousto the ordinary artisan to use a
`polar solvent to extract oil from a denatured krill product. Jd. at 36.
`
`'! Folchet al., A simple Methodforthe Isolation and Purification of Total
`Lipidesfrom Animal Tissue, 226 J. BIOL. CHEM. 497-509 (1957) (“Folch’’)
`(Ex. 1017).
`
`13
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`

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`
`The independentclaimsalso recite that compositionof the krill 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 phospholipidsso that
`the amountof total phospholipids in said krill oil is about 30% to 60% w/w;
`
`and from about 20% to 50% w/wtriglycerides.” According to Petitioner,
`
`“alll of the components[ofthe krill oil product produced by the claimed
`method] are well-known componentsoflipids extracted from krill.” Jd. at
`
`40.
`
`Asto the recitation that the krill oil have 30% to 60% w/wtotal
`
`phospholipids, Petitioner relies on Table 16 of Example 18 of Catchpole as
`disclosing an extract that includes 45.1% total phospholipids. Jd. at 40-41
`(citing Ex. 1009,'? 24:1-19, Table 16; Ex. 1006 ff] 95, 96, 234, 235).
`Petitioner asserts further that Catchpole discloses a krill oil extract
`
`including from about 3% to about 10% w/w ether phospholipids. Jd. at 41.
`In particular, Petitioner points out that Catchpole expressly describes in
`Table 16 a krill extract having 4.8% ether phospholipids, including 4.6%
`
`AAPCand 0.2% AAPE. Jd. (citing Ex. 1009, 24:1-19, Table 16; Ex. 1006
`
`qq 95, 96, 234, 235).
`Petitioner also relies on Table 16 of Catchpole to meet the limitation
`
`of about 27% to 50% w/w non-ether phospholipids. Jd. at 41-42 (citing Ex.
`1009, 24:1-19, Table 16). Petitioner notes that the composition of extract 2
`has 45.1% total phospholipids, which, as discussed above, includes 4.8%
`
`12 We note that Petitioner actually cites Ex. 1017, even thoughin the
`proceedingsentenceit refers to Ex. 1009. Pet. 40. We assumethat the
`reference to Ex. 1017 was actually a typographic error, and Petitioner
`intendedto refer to Ex. 1009.
`
`14
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`IPR2017-00746
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`
`ether phospholipids, and, thus, the remaining lipids would be 40.3% non-
`
`ether phospholipids. Jd. at 41-42 (citing Ex. 1006 ff 95, 96, 234, 235).
`
`Concerningthe claim recitation that the krill extract include from
`
`about 20% to 50% w/w triglycerides, Petitioner asserts that Table 1 of Fricke
`
`disclosing the lipid composition of Antarctic krill satisfies this claim
`
`requirement. Jd. at 42-43 (citing Ex. 1010, 822, Table 1; Ex. 1006 ff 101,
`236, 238). Specifically, Petitioner identifies disclosure by 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).
`
`Accordingto Petitioner, the ordinary artisan would have had a reason
`
`to combinethe disclosure of Breivik, Catchpole, and Fricke. Jd. at 49. In
`
`particular, Petitioner notes that Breivik discloses processing freshly caught
`krill on board a ship by heating, and extracting the krill oil using
`conventionalpolar solvents and extraction techniques; that Catchpole also
`discloses extracting the krill oil using conventional polar solvents and
`extraction techniques; and Fricke notes the importance of reducing lipolytic
`enzymesto preserve phospholipids and their associated fatty acids, such as
`omega-3. Jd. at 49-50. Moreover, Petitioner explains that extracts prepared
`according to Catchpole are “considered to be more ‘natural’ than extracts
`produced byother solvents,” and Breivik teaches the use of marine
`phospholipids in medical products, health food, and in humannutrition. Jd.
`Likewise, Dr. Tallon testifies that the lipid components described in
`
`the claims of the ’877 patent “are the naturallipid components in the krill oil
`that can be extracted using any of a numberof conventionalsolvents,” and
`that the relative proportions of those lipid components can “be varied in
`
`15
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`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 § 212. Thus, Petitioner contends, the ordinary
`
`artisan, “performing the treatment and extraction steps in Breivik, would
`
`have been motivated to look to other references such as Fricke and
`
`Catchpole to ascertain the componentsofthe krill oil and their amounts as
`
`obtained by standard extraction methods.” Pet. 51 (citing Ex. 1006 {J 28—
`
`32, 261).
`
`Wehavereviewed 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 independent claims 1
`
`and 11 are rendered obvious by the combination of Breivik, Catchpole, and
`
`Fricke. We have also reviewed Petitioner’s evidence and arguments as to
`dependent claims 2,3, 6, 8, 9, 12, 15, 17, and 18, 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 demonstrated a
`
`reasonable likelihood that those claims are also rendered obvious by the
`
`combination of Breivik, Catchpole, and Fricke. Thus, Petitioner has
`
`demonstrated a reasonable likelihood that claims 1—3, 6, 8, 9, 11, 12, 15, 17,
`
`and 18 are rendered obvious by the combination of Breivik, Catchpole, and
`
`Fricke.
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`C.
`
`: Obviousness over various Combinations ofBreivik,
`Catchpole, Fricke, Bottino , Sampalis I, and Sampalis IT
`The remaining challenges address dependentclaims4, 5, 7, 10, 13,
`14, 16, and 19. As discussed above, we determinethat Petitioner has
`established a reasonable likelihood that independent claims 1 and 11 are
`
`rendered obvious by the combination of Breivik, Catchpole, and Fricke. In
`combination with Breivik, Catchpole, and Fricke, Petitioner relies further
`upon the teachings of Bottino to address the additional limitations of
`dependentclaims4, 5, 13, and 14; the teachings of Sampalis I to address the
`additional limitations of dependent claims 7 and 16; and the teachings of
`Sampalis II to address the additional limitations of claims 10 and 19. 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. Basedon that showing,
`Petitioner has sufficiently demonstrated a reasonablelikelihood that claims
`4, 5, 13, and 14 are rendered obvious by the combination of Breivik,
`—
`Catchpole, Fricke, and Bottino; claims 7 and 16 are rendered obvious by the
`combination of Breivik, Catchpole, Fricke, and Sampalis I; and claims 10
`and 19 are rendered obvious by the combination of Breivik, Catchpole,
`
`Fricke, and SampalisII.
`
`IH.
`
`CONCLUSION
`
`For the foregoing reasons, we are persuadedthat the 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.
`Ourdeterminations at this stage of the proceeding are based on the
`evidentiary record currently before us. This decisionto institute trial is not a
`
`17
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`final decision as to patentability of the claim for which inter partes review is
`
`instituted. Any final 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, 6, 8, 9, 11, 12, 15, 17, and 18 as rendered obviousby the
`
`combination of Breivik, Catchpole, Fricke;
`
`Claims 4, 5, 13, and 14 as rendered obvious by the combination of
`
`Breivik, Catchpole, Fricke, and Bottino;
`Claims 7 and 16 as rendered obvious by the combination of Breivik,
`
`Catchpole, Fricke, and Sampalis I; and
`Claims 10 and 19 as rendered obvious by the combination of Breivik,
`
`Catchpole, Fricke, and SampalisIT;
`FURTHER ORDEREDthatno other proposed grounds of
`
`unpatentability are authorized; and
`FURTHER ORDEREDthat pursuant to 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given ofthe institutionofa trial
`
`commencing onthe entry date of this Decision.
`
`18
`
`

`

`IPR2017-00746
`Patent 9,028,877 B2
`
`PETITIONER:
`
`James Harrington
`Michael 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
`
`19
`
`

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