Case: 19-1097
`
`Document:48
`
`Page:1
`
`Filed: 10/03/2019
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`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`
`AKER BIOMARINE ANTARCTIC AS,
`Appellant
`
`Vv.
`
`RIMFROSTAS,
`Appellee
`
`2019-1078
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00746.
`
`AKER BIOMARINE ANTARCTIC AS,
`Appellant
`
`Vv.
`
`RIMFROSTAS,
`Appellee
`
`2019-1097
`
`

`

`Case: 19-1097
`
`Document: 48
`
`Page: 2
`
`Filed: 10/03/2019
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`2
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`AKER BIOMARINE ANTARCTICAS v. RIMFROST AS
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00745.
`
`Decided: October 3, 2019
`
`JOHN MITCHELL JONES, Casimir Jones, S.C., Middle-
`ton, WI, for appellant.
`
`JAMES FRANCIS HARRINGTON, Hoffmann & Baron, LLP,
`Syosset, NY, for appellee. Also represented by RONALD J.
`BARON, JOHN T. GALLAGHER; MICHAEL I. CHAKANSKY, Hoff-
`mann & Baron LLP, Parsippany, Nd.
`
`Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
`
`LOURIE, Circuit Judge.
`
`Aker Biomarine Antarctic AS (“Aker”) appeals from
`two final written decisions of the U.S. Patent and Trade-
`mark Office Patent Trial and Appeal Board (“the Board”)
`in two inter partes review proceedings holding claims 1-19
`of U.S. Patent 9,028,877 (“the ’877 patent) and claims 1—20
`of U.S. Patent 9,078,905 (“the ’905 patent”) unpatentable
`as obvious. See Rimfrost AS vu. Aker Biomarine Antarctic
`AS, No. IPR2017-00746, 2018 WL 3857128 (P.T.A.B. Aug.
`10, 2018) (“877 Decision”); Rimfrost AS v. Aker Biomarine
`Antarctic AS, No.
`IPR2017-00745, 2018 WL 3857126
`(P.T.A.B. Aug. 10, 2018) (“905 Decision”). For the reasons
`detailed below, we affirm.
`
`BACKGROUND
`
`The ’877 and ’905 patents share a written description
`and concern bioeffective krill oil. According to the descrip-
`tion, in the prior art, Antarctic krill was challenging to use
`to produce krill oil because lipases would degrade the oil
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`AKER BIOMARINE ANTARCTICAS v. RIMFROST AS
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`during storage and transport. See ’877 patentcol. 2 ll. 3—
`6. To address this problem, the patents propose treating
`the krill to denature lipases and phospholipases, which can
`reduce enzymatic decomposition of glycerides and phospho-
`lipids. See id. col. 9 ll. 44-51. The ’877 patent claims a
`method of producing krill oil and encapsulating it, while
`the 905 patent claims encapsulated krill oil of various com-
`positions. According to the specification, krill oil can be
`useful for “decreasing cholesterol, inhibiting platelet adhe-
`sion, inhibiting artery plaque formation, preventing hyper-
`tension, controlling arthritis symptoms, preventing skin
`cancer, enhancing transdermaltransport, reducing... pre-
`menstrual symptomsor controlling blood glucose levels in
`a patient.” Jd. col. 1 ll. 46-52.
`
`Claim 1 of the 877 patent is exemplary of that patent,
`andit recites “[a] method of production of krill oil compris-
`ing: a) providing krill; b) treating said krill to denature li-
`pases and phospholipases in said krill
`to provide a
`denatured krill product; and c) extracting oil from said de-
`natured krill product with a polar solvent... .” Id. col. 34
`ll. 59-64. Steps a) and b) “are performed on a ship.” Id.
`col. 351. 2. The claim further requires that the extracted
`krill oil be composed of “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 phospholipids in
`said krill oil is from about 30% to 60% w/w; and from about
`20% to 50% w/w triglycerides.” Id. col. 34 1. 64—col. 35 1. 2.
`Of particular relevance here is the composition of the krill
`oil.
`
`The claims of the 905 patent are drawn to encapsu-
`lated krill oil of compositions. Exemplary is claim 12,
`whichrecites “[e]ncapsulated krill oil comprising: a capsule
`containing an effective amountof krill oil.” ’905 patent,col.
`36 ll. 29-30. Similar to the oil claimed in the ’877 patent,
`the encapsulated krill oil comprises “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
`
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`AKER BIOMARINE ANTARCTIC AS v. RIMFROST AS
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`phospholipids in the composition is from about 30% to 60%
`w/w; and from about 20% to 50% w/w triglycerides.” Id. col.
`36 ll. 32-36.
`
`Rimfrost AS (“Rimfrost”) petitioned for inter partes re-
`view of claims of both patents, and the Board determined
`that claims 1-19 of the ’877 patent and claims 1-20 of the
`905 patent would have been obviousin view of a combina-
`tion of references.! To satisfy the claim limitations requir-
`ing treating the krill with heat to denature lipases and
`extracting the krill oil with a polar solvent, the Board re-
`lied on Brievik,? Catchpole,3 and Fricke 1984.4 To satisfy
`the composition recited in claim 1, the Board relied on
`Catchpole to disclose the total, ether, and non-ether phos-
`pholipid parameters. The Board thenrelied on Fricke 1984
`to disclose the triglyceride levels recited in the claim. 877
`Decision, 2018 WL 3857128, at *11-12.
`
`Before the Board, Aker did not dispute that the refer-
`ences taught every limitation in the claims. 877 Decision,
`2018 WL 3857128, at *12. Aker did dispute, however,
`whether a person of skill would have had a motivation to
`combine the references with a reasonable expectation of
`success and whetherthe prior art taught away from using
`krill oil to treat inflammatory conditions. The Board re-
`jected Aker’s arguments.
`
`Because the Board’s reasoning in the 877 Decision
`1
`as relevant to this appeal is largely representative of its
`reasoning in the 905 Decision, we refer only to the 877 De-
`cision.
`2 U.S. Patent App. Pub. 2010/0143571.
`3 WO 2007/123424.
`4
`Frickeet al., Lipid, Sterol and Fatty Actd Composi-
`tion ofAntarctic Krill (Euphausia superba Dana), 19 LIPIDS
`821 (1984).
`
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`AKER BIOMARINE ANTARCTIC AS v. RIMFROST AS
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`Aker appealed. We have jurisdiction under 35 U.S.C.
`§§ 141(c), 319, and 28 U.S.C. § 1295(a)(4)(A), and we have
`combined these appeals for disposition in one opinion.
`
`DISCUSSION
`
`Our review of a Board decision is limited. In re Baxter
`Int, Inc., 678 F.3d 1357, 1361 (Fed. Cir. 2012). We review
`the Board’s legal determinations de novo, In re Elsner, 381
`F.3d 1125, 1127 (Fed. Cir. 2004), but we review the Board’s
`factual findings underlying those determinations for sub-
`stantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed.
`Cir. 2000). A finding is supported by substantial evidence
`if a reasonable mind might accept the evidence as adequate
`to support the finding. Consol. Edison Co. v. NLRB, 305
`U.S. 197, 229 (1938). “Where there is adequate and sub-
`stantial evidence to support either of two contrary findings
`of fact, the onc chosen by the board is binding on the court
`regardless of how we might have decided the issue if it had
`been raised de novo.” Mishara Constr. Co. v. United States,
`230 Ct. Cl. 1008, 1009 (1982).
`
`Obviousnessis a question of law based on underlying
`facts, including the scope and content of the priorart, dif-
`ferences betweentheprior art and the claimsat issue, the
`level of ordinary skill, and relevant evidence of secondary
`considerations. Graham v. John Deere Co., 383 U.S. 1, 17-
`18 (1966). Whether a skilled artisan would have been mo-
`tivated to combineprior art references is also a question of
`fact. Wyers v. Master Lock Co., 616 F.3d 1231, 1238-39
`(Fed. Cir. 2010).
`
`In these two appeals, Aker raises two arguments.
`Challenging the Board’s decision in both patents, Akerfirst
`argues that a person of skill would not have been motivated
`to combine the asserted references. Second, although the
`Board rejected Aker’s teaching away argument for the
`same reasons in both decisions, Aker challenges the
`Board’s finding only for the ’905 patent that the prior art
`
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`Document:48
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`AKER BIOMARINE ANTARCTIC AS v. RIMFROST AS
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`did not teach away from usingkrill oil to treat inflamma-
`tory conditions. We consider each argumentin turn.
`
`Aker argues that a person of skill would not have been
`motivated to combine Fricke 1984 with Breivik or Catch-
`pole, focusing on two of the Board’s fact findings. First,
`Aker contends that because the krill oils analyzed in the
`references were obtained usingdifferent starting materials
`and extraction methods, a person of skill in the art would
`not have combined them. Appeal No. 19-1078, Appellant’s
`Br. 18-19. Aker urges us to consider testimony from its
`expert, Dr. Hoem, who opined that a person of skill in the
`art would have thought it was “not scientifically valid” to
`choose lipid components from multiple references.
`Id. at
`20. Second, Aker suggests that Dr. Tallon, Rimfrost’s ex-
`pert, admitted that the ether phospholipid content of
`Fricke 1984’s krill oil was actually at most 1.5%. Id. at 22-
`23. According to Aker, this testimony suggests that a per-
`son of skill would not have mixed and matched values for
`lipid componentsin extracts that are obtained from differ-
`ent starting materials. Id.
`
`We disagree with Akerandfind the Board’s decision to
`have been supported by substantial evidence. After weigh-
`ing the evidence, the Board found that the lipid compo-
`nents of krill oil can be extracted using any number of
`suitable solvents, that the proportions of the components
`could be varied in predictable ways, and that the resulting
`extracts could be blended to producea final krill oil prod-
`uct. The Board credited expert testimony from Dy. Tallon
`that a person of skill could draw on an extensive body of
`established, industrial knowledge of methods and parame-
`ters that could be used to produce a stable product with
`known compositions that were minimally impacted by the
`harvesting and pre-processing.
`877 Decision, 2018 WL
`38557128, at *18. Aker does not suggest that Dr. Tallon’s
`testimonyis unreliable or that the testimony should be dis-
`regarded.
`Instead, it requests that we credit its expert’s
`testimony, but the Board was well within its discretion to
`
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`Case: 19-1097
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`Document:48
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`Page: 7
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`credit Dr. Tallon over Dr. Hoen. See Yorkey v. Diab, 601
`F.3d 1279, 1284 (Fed. Cir. 2010) (“[T]he Board was well
`within its discretion to give more credibility to [one ex-
`pert’s]
`testimony over [another’s] unless no reasonable
`trier of fact could have done so.”).
`
`As for Aker’s argument that Dr. Tallon opined that
`Fricke 1984 only contained 1.5% ether phospholipids, we
`are not persuaded that the Board relied on Fricke 1984’s
`ether phospholipid content for its obviousness holding. In-
`stead, the Board relied on those values from Catchpole and
`combined them with the triglyceride content
`in Fricke
`1984. See 877 Decision, 2018 WL 3857128, at *15.
`
`Aker appears to argue that the court should have cred-
`ited its expert’s analysis of the Fricke 1986 reference,®
`which comments on the ether phospholipid content of the
`sample tested in Fricke 1984. But the Board credited
`Catchpole over Fricke 1986 because Catchpole used a more
`reliable measuring technique—nuclear magnetic reso-
`nance—and Aker does not challenge this fact finding. Con-
`sidering the record before the Board, we conclude that the
`Board’s finding of motivation to combine was amply sup-
`ported.
`
`Aker’s second argument addresses the encapsulated
`krill oil claims. According to Aker, the prior art taught
`away from using ether phospholipids for treatment of in-
`flammatory conditions, including premenstrual syndrome,
`because ether phospholipids can degrade into pro-inflam-
`matory compounds with Platelet Activating Factor (PAF)
`activity. Appeal No. 19-1097, Appellant’s Br. 34—40. For
`
`Fricke and G. Gercken, 1-O-Alkylglycerolipids in
`5
`Antarctic Krill (Euphausia Superba Dana), 85B COMP.
`BIOCHEM. PHYSIOL. 131 (1986).
`
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`AKER BIOMARINE ANTARCTIC AS v. RIMFROST AS
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`this argument, Aker cites the Tanaka I reference® to argue
`that the art was concerned with the presence of ether phos-
`pholipids in foodstuffs such as krill oil.
`
`We disagree with Aker, however, and find the Board’s
`decision to have been supported by substantial evidence.
`“The court should consider a range of real-world facts to
`determine ‘whether there was an apparent reason to com-
`bine the known elementsin the fashion claimed by the pa-
`tent at issue.” Arctic Cat Inc. v. Bombardier Recreational
`Prods. Inc., 876 F.3d 1350, 1359 (Fed. Cir. 2017) (quoting
`Intercontinental Great Brands LLC v. Kellogg N. Am. Co.,
`869 F.3d 1336, 1344 (Fed. Cir. 2017)), cert. denied, 139 S.
`Ct. 143 (2018). Here, perhaps most probative is the fact
`that, at the time of the invention, encapsulated krill oil was
`on sale and generally recognized as safe. Given that krill
`oil with ether phospholipids was on sale and, absent any
`evidence suggesting that the capsules were somehow pro-
`inflammatory or dangerous, the Board’s finding that the
`art did not teach away from supplements containing krill
`oil is certainly supported by substantial evidence.
`
`CONCLUSION
`
`We have considered Aker’s remaining arguments, but
`we find them to be unpersuasive. Accordingly, the deci-
`sions of the Board holding unpatentable claims 1—19 of the
`’°877 patent and claims 1-20 of the ’905 patent are sup-
`ported by substantial evidence and are affirmed.
`
`AFFIRMED
`
`Tanaka et al., Platelet-Activating Factor (PAF)-
`6
`Like Phospholipids Formed During Peroxidation of Phos-
`phatidylcholines from Different Foodstuffs, 59 BIOSCI.
`BIOTECH. BIOCHEM. 1389 (1995).
`
`

`

`
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`Case: 19-1097 Page:1_Filed: 10/03/2019Document:49
`
`
`
`Gntted States Court of Appeals
`for the Federal Circuit
`
`AKER BIOMARINE ANTARCTIC AS,
`Appellant
`
`Vv.
`
`RIMFROSTAS,
`Appellee
`
`2019-1097
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00745.
`
`JUDGMENT
`
`THIS CAUSE having been considered,it is
`
`ORDERED AND ADJUDGED:
`
`AFFIRMED
`
`ENTERED BY ORDER OF THE COURT
`
`

`

`
`
`Case: 19-1097 Page:2_Filed: 10/03/2019Document:49
`
`
`
`
`October 3, 2019
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`

`

`
`
`Case: 19-1097 Page:1_Filed: 11/12/2019Document:51
`
`
`
`Anited States Court of Appeals
`for the Federal Circuit
`
`AKER BIOMARINE ANTARCTIC AS,
`Appellant
`
`RIMFROSTAS,
`Appellee
`
`2019-1097
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00745.
`
`MANDATE
`
`In accordance with the judgmentof this Court, entered
`October 3, 2019, and pursuant to Rule 41 of the Federal
`Rules of Appellate Procedure,
`the formal mandate is
`hereby issued.
`
`Costs are awarded to appellee Rimfrost AS in the
`amount of $504.16 and taxed against the appellant Aker
`Biomarine Antarctic AS.
`
`FOR THE COURT
`
`

`

`
`
`Case: 19-1097 Page:2_Filed: 11/12/2019Document:51
`
`
`
`
`November 12, 2019
`
`/s/ Peter R. Marksteiner
`
`Peter R. Marksteiner
`Clerk of Court
`
`