Trials@uspto.gov
`571-272-7822
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` Paper No. 24
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` Entered: August 10, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RIMFROST AS,
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`____________
`
`Case IPR2017-00747
`Patent 9,078,905 B2
`____________
`
`
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
`
`HARLOW, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`Determining That Claims 1–20 Have Not Been Shown to Be Unpatentable
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`571-272-7822
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`
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` Paper No. 24
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`
` Entered: August 10, 2018
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`
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`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RIMFROST AS,
`Petitioner,
`
`v.
`
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`____________
`
`Case IPR2017-00747
`Patent 9,078,905 B2
`____________
`
`
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
`
`HARLOW, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`Determining That Claims 1–20 Have Not Been Shown to Be Unpatentable
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`
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`IPR2017-00747
`Patent 9,078,905 B2
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`
`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
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`’905 patent”). Paper 2 (“Pet.”). Aker Biomarine Antarctic AS (“Patent
`
`Owner”) declined to file a Preliminary Response.
`
`On August 16, 2017, we instituted an inter partes review of all
`
`challenged claims on all grounds asserted. Paper 9. On November 8, 2017,
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`Patent Owner filed a Patent Owner Response to the Petition. Paper 14 (“PO
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`Resp.”). On January 24, 2018, Petitioner filed a Reply to the Patent Owner
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`Response. Paper 17 (“Reply”).
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`We issue this Final Written Decision pursuant to 35 U.S.C. § 318(a)
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`and 37 C.F.R. § 42.73. Having considered the record before us, we
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`determine that Petitioner has not shown by a preponderance of the evidence
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`that claims 1–20 of the ’905 patent are unpatentable. See 35 U.S.C.
`
`§ 316(e).
`
`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,
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`1. In addition, Petitioner has challenged, and we have instituted inter partes
`
`review of the claims of the ’905 patent in IPR2017-00745. Paper 5, 2.
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`Petitioner also challenges U.S. Patent No. 9,028,877 B2 (“the
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`’877 patent) in IPR2017-00746 and IPR2017-00748. Paper 5, 2. Both the
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`’905 patent and the ’877 patent are continuations of Application
`
`No. 12/057,775, filed March 28, 2008.
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`2
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`Patent 9,078,905 B2
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`The parties have not identified any further, currently pending, related
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`proceedings concerning the ’905 patent.1
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`B. The ’905 Patent
`
`The ’905 patent, titled “Bioeffective Krill Oil Compositions,” issued
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`July 14, 2015, with Inge Bruheim, Snorre Tilseth, and Daniele Mancinelli as
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`the listed co-inventors. Ex. 1001, [54], [45], [72].
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`The ’905 patent describes extracts from Antarctic krill, small
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`shrimp-like animals, that include bioactive fatty acids. Ex. 1001, 1:19–20.
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`In particular, the ’905 patent discloses krill oil compositions having “high
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`levels of astaxanthin, phospholipids, includ[ing] enriched quantities of
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`ether phospholipids, and omega-3 fatty acids.” Id. at 9:28–31.
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`The ’905 patent states that myriad health benefits have been attributed
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`to krill oil in the prior art. For example, the ’905 patent states that “[k]rill oil
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`compositions have been described as being effective for decreasing
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`cholesterol, inhibiting platelet adhesion, inhibiting artery plaque formation,
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`preventing hypertension, controlling arthritis symptoms, preventing skin
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`cancer, enhancing transdermal transport, reducing the symptoms of
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`premenstrual symptoms or controlling blood glucose levels in a patient.”
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`Ex. 1001, 1:46–52. In addition, the ’905 patent recognizes that krill oil
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`compositions, including compositions having up to 60% w/w phospholipid
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`
`
`1 The ’905 patent was also asserted in In the Matter of Certain Krill Oil
`Products and Krill Meal for Production of Krill Oil Products, Investigation
`No. 337-TA-1019 (USITC) (Pet. 2–3; Paper 3, 1); however, Petitioner states
`that the investigation has been “effectively terminated.” Paper 22, 3.
`3
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`Patent 9,078,905 B2
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`content and as much as 35% w/w EPA/DHA content, were known in the art
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`prior to the time of invention. Id. at 1:52–57. The ’905 patent also indicates
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`that supercritical fluid extraction with solvent modifier was known to be a
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`useful method for extracting marine phospholipids from salmon roe. Id. at
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`1:65–67.
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`According to the ’905 patent, however, the solvent extraction methods
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`used in the prior art to isolate krill oil from the krill “rely on the processing
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`of frozen krill that are transported from the Southern Ocean to the
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`processing site,” which transportation is expensive and may result in the
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`degradation of the krill starting material. Id. at 2:3‒6. Such methods have
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`included steps of placing the material into a ketone solvent, such as acetone,
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`to extract the lipid soluble fraction, and recovering the soluble lipid fraction
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`from the solid contents using a solvent such as ethanol. Id. at 1:32‒40.
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`To overcome the above limitations, the ’905 patent discloses
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`“methods for processing freshly caught krill at the site of capture and
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`preferably on board a ship.” Id. at 10:18‒20. The ’905 patent explains that
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`the krill may be first subject to a protein denaturation step, such as a heating
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`step, to avoid the formation of enzymatically decomposed oil constituents.
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`Id. at 9:43‒50; 10:26‒31. Subsequently, the “oil can be extracted by an
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`optional selection of nonpolar and polar solvents including use of
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`supercritical carbon dioxide.” Id. at 9:51‒54.
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`In Example 7 of the ’905 patent, “[k]rill lipids were extracted from
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`krill meal (a food grade powder) using supercritical fluid extraction with
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`co-solvent.” Id. at 33:15‒16.
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`Initially, 300 bar pressure, 333°K and 5% ethanol
`(ethanol:CO2, w/w) were utilized for 60 minutes in order to
`remove neutral lipids and astaxanthin from the krill meal. Next,
`the ethanol content was increased to 23% and the extraction was
`maintained for 3 hours and 40 minutes. The extract was then
`evaporated using a falling film evaporator and the resulting krill
`oil was finally filtered.
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`Id. at 33:17‒23.
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`Example 8 of the ’905 patent prepared krill oil using the same method
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`described in Example 7, from the same krill meal used in that example.
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`Ex. 1001, 32:45‒46. The krill oil was then analyzed using 31P NMR
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`analysis to identify and quantify the phospholipids in the oil. Id. at 32:46‒
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`48. Table 222 shows the phospholipid profiles for the raw material, the final
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`product, and a commercially available krill oil, Neptune Krill Oil (“NKO”).
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`Id. at 33:6‒9. Table 22 is reproduced below:
`
`
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`2 We view reference in the ’905 patent to “table 25” (Ex. 1001, 33:6‒9) to be
`an inadvertent typographical error, as the specification does not include a
`table 25. We understand Example 8 of the specification to refer, instead, to
`Table 22, which sets forth the described phospholipid profiles.
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`Id. at 33:15‒39.
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`The ’905 patent teaches that the “main polar ether lipids of the krill
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`meal are alkylacylphosphatidylcholine (AAPC) at 7–9% of total polar lipids,
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`lyso-alkylacylphosphatidylcholine (LAAPC) at 1% of total polar lipids
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`(TPL) and alkylacylphosphatidyl-ethanolamine (AAPE) at <1% of TPL.”
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`Id. at 33:9‒14.
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`C. Illustrative Claim
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`Independent claim 1, reproduced below, is illustrative of the claimed
`
`subject matter.
`
`1.
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`Encapsulated krill oil comprising:
`
`a capsule containing an effective amount of krill oil,
`said krill oil comprising from about 3% to about 15% w/w
`ether phospholipids.
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`Ex. 1001, 35:47–50. Independent claims 12 and 18 further specify the lipid
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`composition of the krill oil, the type of krill used, and the material in which
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`the krill oil is encapsulated. Id. at 36:29–36, 36:48–56.
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`D. Prior Art Relied Upon
`
`Petitioner relies upon the following as prior art references (Pet. 8):
`
`Randolph
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`US 2005/0058728 A1 Mar. 17, 2005
`
`(Ex. 1011)
`
`Bottino, The Fatty Acids of Antarctic Phytoplankton and Euphausiids. Fatty
`Acid Exchange Among Trophic Levels of the Ross Sea, 27 MARINE BIOLOGY,
`197–204 (1974) (Ex. 1007).
`
`Fricke et al., Lipid, Sterol and Fatty Acid Composition of Antarctic Krill
`(Euphausia superba Dana), 19(11) LIPIDS 821–827 (1984) (Ex. 1010).
`
`Sampalis et al., Evaluation of the Effects of Neptune Krill Oil™ on the
`Management of Premenstrual Syndrome and Dysmenorrhea, 8(2) ALT.
`MED. REV. 171–179 (2003) (Ex. 1012).
`
`Tanaka et al., Platelet-Activating Factor (PAF)-Like Phospholipids Formed
`During Peroxidation of Phosphatidylcholines from Different Foodstuffs,
`59(8) BIOSCI. BIOTECH. BIOCHEM. 1389–1393 (1995) (Ex. 1014).
`
`Petitioner also relies on the Declaration of Stephen J. Tallon, Ph.D.
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`(Ex. 1006), and the Reply Declaration of Dr. Tallon (Ex. 1086).
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`Patent 9,078,905 B2
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`Patent Owner relies on the Declaration of Nils Hoem, Ph.D.
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`(Ex. 2001).
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`E. Instituted Challenges
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`We instituted trial based on each challenge to the patentability of the
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`’905 patent presented in the Petition (Pet. 7):
`
`Claim(s)
`
`Basis
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`References
`
`1–4, 6, 9, 10, 12, 15,
`16, and 18
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`5
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`7, 8, 11, 13, 14, 17,
`19, and 20
`
`§ 103(a)
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`Sampalis, Tanaka, and Fricke
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`§ 103(a)
`
`§ 103(a)
`
`Sampalis, Tanaka, Fricke, and
`Randolph
`Sampalis, Tanaka, Fricke, and
`Bottino
`
`II. ANALYSIS
`
`A. 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-
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`Site Corp. v. VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing
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`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966); Ryko Mfg. Co. v. Nu-
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`Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991)).
`
`Petitioner asserts that a person of ordinary skill in the art at the time of
`
`the invention of the ’905 patent would have had “an advanced degree in
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`marine sciences, biochemistry, organic (especially lipid) chemistry,
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`chemical or process engineering, or associated sciences,” as well as a
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`complementary understanding of “organic chemistry and in particular lipid
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`chemistry, chemical or process engineering, marine biology, nutrition, or
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`associated sciences; and knowledge of or experience in the field of
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`extraction,” in addition to “at least five years applied experience.” Pet. 6;
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`Ex. 1006 ¶ 27.
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`Patent Owner does not address the level of ordinary skill in its
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`Response; however, Patent Owner’s declarant, Dr. Hoem opines that the
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`definition proposed by Petitioner “is consistent with the literature,
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`credentials of individuals working on lipid extractions, and the skill
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`necessary to perform these extractions and interpret their results.” Ex. 2001
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`¶ 15. Based on that assessment, Dr. Hoem adopts the definition of the level
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`of ordinary skill in the art advanced by Petitioner. Id.
`
`We agree with Petitioner, Dr. Tallon, and Dr. Hoem, and find that
`
`Petitioner’s description of the level of ordinary skill in the art at the time of
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`invention of the ’905 patent is consistent with the type of problems
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`encountered in the art, prior art solutions to those problems, rapidity with
`
`which innovations are made, sophistication of the technology, and
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`educational level of active workers in the field. See In re GPAC Inc., 57
`
`F.3d 1573, 1579 (Fed. Cir. 1995). For purposes of this Decision, therefore,
`
`we adopt Petitioner’s description. We also 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).
`
`In addition, we recognize each of Petitioner’s and Patent Owner’s
`
`declarants as qualified to provide the proffered opinions on the level of skill
`
`and the knowledge of a person of ordinary skill in the art at the time of the
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`invention. The relative weight that we assign such testimony, however, is
`
`subject to additional factors. See, e.g., 37 C.F.R. § 42.65(a) (“Expert
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`testimony that does not disclose the underlying facts or data on which the
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`opinion is based is entitled to little or no weight.”); Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48,756, 48,763 (Aug. 14, 2012) (same).
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`B. Claim Construction
`
`In an inter partes review, the Board interprets claim terms in an
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`unexpired patent according to the broadest reasonable construction in light
`
`of the specification of the patent in which they appear. 37 C.F.R.
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`§ 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016)
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`(affirming applicability of broadest reasonable construction standard to inter
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`partes review proceedings). Under that standard, and absent any special
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`definitions, we give claim terms their ordinary and customary meaning, as
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`would be understood by one of ordinary skill in the art at the time of the
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`invention, in the context of the entire disclosure. In re Translogic Tech.,
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`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Only those terms that are in
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`controversy need be construed, and only to the extent necessary to resolve
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`the controversy. Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.
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`Ltd., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs., Inc. v. Am.
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`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
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`Although both Petitioner (Pet. 18‒25) and Patent Owner (PO Resp.
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`11‒12) offer several claim constructions, we determine that no explicit
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`construction of any claim term is necessary for purposes of this Decision. In
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`reaching this conclusion, we observe that the parties’ proposed constructions
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`are largely coextensive with each other, and to the extent those constructions
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`differ, they do so in ways that do not impact our analysis. For example, our
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`10
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`Patent 9,078,905 B2
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`analysis below remains the same irrespective of whether we apply
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`Petitioner’s construction of “krill oil” as meaning “lipids extracted from
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`krill” (Pet. 20) or Patent Owner’s interpretation, “oil produced from krill”
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`(PO Resp. 11). Similarly, our analysis is unaffected by whether we apply
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`Petitioner’s definition of “effective amount of krill oil,” i.e., “at least the
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`range of between 0.2 grams to 10 grams of krill oil” (Pet. 21), or Patent
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`Owner’s construction, “0.2 grams to 10 grams of krill oil” (PO Resp. 12). 3
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`C. Overview of the Prior Art
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`Petitioner relies on combinations including Sampalis, Tanaka,
`
`Fricke 1984, Randolph, and/or Bottino to support its contention that claims
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`1–20 of the ’905 patent would have been obvious. Pet. 7. Pertinent to our
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`discussion below, Patent Owner asserts that Fricke 19864 supports its
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`argument that the cited combination fails to disclose the claimed ranges of
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`ether phospholipid content. PO Resp. 14–18. We provide an overview of
`
`each reference.
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`
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`3 Patent Owner expressly accepts, for purposes of this proceeding,
`Petitioner’s proposed constructions of “polar solvent extract” and “plant
`phytonutrient,” the remaining terms for which the parties propose
`constructions. PO Resp. 12–13.
`
`4 Fricke et al., 1-O-Alkylglycerolipids in Antarctic Krill (Euphausia Superba
`Dana), 85B COMP. BIOCHEM. PHYSIOL. 131–134 (1986) (“Fricke 1986”)
`(Ex. 2006).
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`
`1. Sampalis
`
`Sampalis describes a clinical trial “[t]o evaluate the effectiveness of
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`Neptune Krill OilT M (NKOT M) for the management of premenstrual
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`syndrome and dysmenorrhea.” Ex. 1012, 1. Sampalis explains that Neptune
`
`Krill Oil is “extracted from Antarctic krill also known as Euphausia
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`superba. Euphausia superba, a zooplankton crustacean, is rich in
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`phospholipids and triglycerides carrying long-chain omega-3
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`polyunsaturated fatty acids, mainly EPA and DHA, and in various potent
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`antioxidants including vitamins A and E, astaxanthin, and a novel
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`flavonoid.” Id. at 4.
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`Sampalis discloses that each patient in the clinical trial was “asked to
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`take two 1-gram soft gels of either NKO or omega-3 18:12 fish oil (fish oil
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`containing 18% EPA and 12% DHA) once daily with meals during the first
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`month of the trial.” Id. Sampalis reports that “[t]he final results of the
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`present study suggest within a high level of confidence that Neptune Krill
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`Oil can significantly reduce the physical and emotional symptoms related to
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`premenstrual syndrome, and is significantly more effective for the
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`management of dysmenorrhea and emotional premenstrual symptoms than
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`fish oil.” Id. at 8.
`
`2. Tanaka
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`Tanaka examines the “PAF-like lipids formed during peroxidation of
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`[phosphatidylcholines (“PCs”)] from hen egg yolk, salmon roe, sea urchin
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`eggs, and krill in an FeSO4/EDTA/ascorbate system.” Ex. 1014, Abstract.
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`Tanaka discloses the PC subclasses, and their relative amounts, present in
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`Antarctic krill (Euphausia superba) extract. Ex. 1014, 2, 3. Tanaka
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`explains that PC was purified from crude krill lipid extract using column
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`chromatography and thin layer chromatography. Id. at 2. Successive
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`degradations of the purified extract using alkaline and acid hydrolysis were
`
`then performed to measure the percentages of PC subclasses in the extract.
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`Id.
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`Table 1 of Tanaka is reproduced below.
`
`Ex. 1014, Table 1. Table 1 shows that the ether phospholipid AAPC
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`accounted for 23.0% +/- 1.2% of the total PC present in Antarctic krill
`
`
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`extract. Id. at 3.
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`Tanaka concludes that although the study “demonstrated the
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`formation of PAF-like phospholipids during peroxidation of PCs from
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`different foodstuffs[,] . . . the occurrence of PAF-like lipids in some stored
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`foods is still speculative and requires further investigation.” Ex. 1014, 5.
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`3. Fricke 1984
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`Fricke 1984 discloses the “lipid classes, fatty acids of total and
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`individual lipids and sterols of Antarctic krill (Euphausia superba Dana)
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`from two areas of the Antarctic Ocean” as determined by thin layer
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`chromatography, gas liquid chromatography, and gas liquid
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`chromatography/mass spectrometry analyses. Ex. 1010, Abstract.
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`According to Fricke 1984, krill were collected and were quick frozen, and
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`lipids were extracted using the method of Folch.5 Id. at 1. Fricke 1984
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`teaches further that samples were also cooked on board “immediately after
`
`hauling,” and were stored under the same condition. Id. at 2‒3.
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`Table 1 of Fricke 1984 is reproduced below.
`
`Table 1 shows the total lipid content and the lipid composition data for the
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`two krill samples analyzed by Fricke 1984. Id. at 2. As indicated in
`
`Table 1, the krill samples respectively included approximately 33.3%
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`+/- 0.5% w/w and 40.4% +/- 0.1% w/w triacylglycerols. Id.
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`
`
`5 Folch et al., A Simple Method for the Isolation and Purification of Total
`Lipides From Animal Tissues, 266 J. BIOL. CHEM. 497–509 (1957)
`(Ex. 1017).
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`4. Randolph
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`Randolph discloses compositions for modulating cytokines to regulate
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`an inflammatory or immunomodulatory response including, inter alia,
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`rosehips and krill oil. Ex. 1011 ¶ 8. With regard to rosehips, Randolph
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`discloses that the composition may include one or more rosehip ingredients,
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`such as “dried rosehips, rosehip oil, and rosehip extracts.” Id. ¶ 24.
`
`Concerning krill oil, Randolph discloses that
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`[a] composition of the invention can include krill oil. Krill oil
`can be obtained from any member of the Euphausia family, for
`example Euphausia superba. Conventional oil producing
`techniques can be used to obtain the krill oil. In addition, krill
`oil can be obtained commercially from Neptune Technologies
`and Bioresources of Quebec, Canada.
`
`Id. ¶ 39. Randolph further explains that “[a] composition can contain any
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`amount of krill oil,” but will typically contain “between about 300 mg and
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`about 3000 mg of a krill oil ingredient.” Id. ¶ 40.
`
`Randolph also discloses that, “[t]he ingredients of the composition can
`
`be processed into forms having varying delivery systems. For example, the
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`ingredients can be processed and included in capsules, tablets, gel tabs,
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`lozenges, strips, granules, powders, concentrates, solutions, lotions, creams
`
`or suspensions.” Ex. 1011 ¶ 46. Randolph further discloses that “[a] soft
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`gel capsule of the composition can be manufactured to include krill oil. This
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`capsule can be manufactured using conventional capsule manufacturing
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`techniques. The amount of krill oil in each capsule is about 300 mg.” Id.
`
`¶ 52.
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`5. Bottino
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`Bottino observes that “[t]he study of krill has become intensive in
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`recent times, perhaps as a result of its potential importance as food,” and
`
`explains that “[a] variety of organisms [are] usually included under that
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`generic name, but in the Southern Oceans the name Euphausia superba has
`
`been considered almost a synonym for krill.” Ex. 1007, 1.
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`Bottino describes the fatty acid profiles for E. superba, E.
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`crystallorophias, and phytoplankton. Ex. 1007, Abstract. Bottino explains
`
`that, in contrast to prior studies, lipids were extracted from E. superba
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`“immediately after capture.” Id. at 2. Euphausiids lipid extraction was
`
`performed “with a chloroform:methanol (2:1, v/v) mixture,” as previously
`
`described by Folch, and the fatty acids were analyzed using
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`chromatography. Id. at 1.
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`16
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`Patent 9,078,905 B2
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`Table 1 of Bottino is reproduced below.
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`Ex. 1007, Table 1. Table 1 discloses the fatty acid content of E. superba
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`obtained from three different locations (i.e., stations) as a weight percent of
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`total fatty acids. Id. at 2. Notably, only those fatty acids present at 1% or
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`more as a weight percent of total fatty acids are included in Table 1. Id.
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`Table 1 n.c.
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`17
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`Table 3 of Bottino is reproduced below.
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`18
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`Ex. 1007, Table 3. Table 3 reports the identity and average amount of each
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`fatty acid present in the E. superba samples analyzed as a weight percent of
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`total fatty acids.
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`6. Fricke 1986
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`Fricke 1986 teaches that “[s]mall amounts of alkoxylipids, commonly
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`referred to as glyceryl ethers or ether lipids, are present in the lipids of many
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`marine animals.” Ex. 2006, 1. Fricke notes that “[w]hile investigating the
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`complete lipid composition of Antarctic Krill” in the study reported in
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`Fricke 1984, “there was some evidence for the presence of 1-O-
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`alkylglycerolipids in trace amounts,” which suggested “that some
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`degradation processes had taken place during storage.” Id. Fricke 1986
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`explains that the samples analyzed in Fricke 1984 “were frozen on board a
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`research vessel in 1977 and 1981 and could only be investigated after some
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`months of frozen storage.” Id. Accordingly, Fricke 1986 set out to verify
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`the findings of Fricke 1984, using lipid extracts from freshly caught krill that
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`were prepared on-board during an expedition in 1985. Id.
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`According to Fricke 1986, 1-O-alkylglycerolipids “were found as
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`minor lipid components,” and “ranged from 0.3 to 0.6% of total lipid content
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`of Antarctic Krill” (Ex. 2006, 2) as shown in Table 1, reproduced below.
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`19
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`Patent 9,078,905 B2
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`Id. at Table 1.
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`With regard to the preparation of the 1977 and 1981 samples,
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`Fricke 1986 teaches that alkylglycerolipids were isolated after stepwise
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`hydrolysis of total lipids. Ex. 2006, 1. Phospholipids and neutral lipids
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`were separated using thin layer chromatography, and phospholipids were
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`incubated with phospholipase C. Id. Fricke 1986 teaches that the
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`alkylglycerols were prepared from the phospholipids and neutral lipids by
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`concentrated methanolic hydrochloric acid, and the alkylglycerols were
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`isolated using thin layer chromatography. Id. at 1–2. Concerning the 1985
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`samples, Fricke 1986 explains that those samples were treated “according to
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`Snyder et al. (1971) with Vitride (sodium-di-hydro-bis-(2-methoxyethoxy)-
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`aluminate) to form the free alkylglycerols.” Id.
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`D. Obviousness Based on
`Sampalis, Tanaka, and Fricke 1984
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`Petitioner asserts that claims 1–4, 6, 9, 10, 12, 15, 16, and 18 are
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`unpatentable under § 103(a) as obvious in view of Sampalis, Tanaka, and
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`Fricke 1984. Pet. 26–38. Patent Owner disagrees. PO Resp. 13–21.
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`
`differences between the claimed subject matter and the prior art are such that
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`20
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and, where presented, (4) objective
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`evidence of nonobviousness. Graham, 383 U.S. at 17–18.
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`Although inter partes review may be instituted where it has been
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`shown that “there is a reasonable likelihood that the petitioner would prevail
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`with respect to at least 1 of the claims challenged in the petition” (35 U.S.C.
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`§ 314(a)), “the burden of persuasion is on the petitioner to prove
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`‘unpatentability by a preponderance of the evidence,’ 35 U.S.C. § 316(e),
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`and that burden never shifts to the patentee.” Dynamic Drinkware, LLC v.
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`Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). It is, therefore,
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`of the utmost importance that petitioners “adhere to the requirement that the
`
`initial petition identify ‘with particularity’ the ‘evidence that supports the
`
`grounds for the challenge to each claim.’” Intelligent Bio-Sys., Inc. v.
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`Illumina Cambridge Ltd., 821 F.3d 1359, 1369 (Fed. Cir. 2016) (quoting
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`35 U.S.C. § 312(a)(3)).
`
`
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`21
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`“from about 3% to about 15% w/w ether phospholipids” and
`“from about 3% to about 10% w/w ether phospholipids”
`
`Each of the challenged claims requires an encapsulated krill oil
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`including an amount of ether phospholipids falling within a certain range:
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`“from about 3% to about 15% w/w ether phospholipids” for independent
`
`claim 1 (Ex. 1001, 35:48–50); and “from about 3% to about 10% w/w ether
`
`phospholipids” for independent claims 12 and 18 (id. at 36:30–32, 36:50–
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`52). Petitioner asserts that Tanaka, in view of Fricke 1984, satisfies these
`
`claim requirements. Pet. 26–30, 35–37 (citing Ex. 1006 ¶¶ 98–99, 196, 213,
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`216–217).
`
`In support of its position, 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% w/w, respectively, for the
`
`samples tested). Pet. 28–29; Ex. 1006 ¶ 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;
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`Ex. 1006 ¶ 130, 131; Ex. 1014, 3. Relying on its declarant, Dr. Tallon,
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`Petitioner, therefore, asserts that an ordinarily skilled artisan would have
`
`understood that Antarctic krill oil includes approximately 7.8% w/w of the
`
`ether phospholipid AAPC. Pet. 30. In particular, Petitioner reasons that
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`“[s]ince Tanaka demonstrates that AAPC is 23.0 +/– 1.2% of krill
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`phosphatidylcholine and Fricke [1984] discloses that PC is approximately
`
`34% of krill lipids, a POSITA would have understood that AAPC, an ether
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`phospholipid, is present at approximately 8% of krill oil (34% x .23 =
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`7.8%).” Pet. 29–30 (citing Ex. 1006 ¶¶ 98, 99).
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`22
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`With regard to the rationale for, and reasonable expectation of success
`
`in making the proposed combination, Petitioner focuses on the health
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`benefits attributable to krill oil supplements and phospholipids in general.
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`Pet. 37–38. Petitioner additionally asserts that an ordinarily skilled artisan
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`“developing an encapsulated krill oil supplement as disclosed in Sampalis []
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`would be motivated to look to other references such as Tanaka [] and Fricke
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`[1984] to ascertain the components of the krill oil and their amounts as
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`obtained by standard extraction methods.” Petitioner does not further
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`elucidate the rationale for applying the ratio of AAPC to PC reported to
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`Tanaka to determine the ether phospholipid levels of Fricke 1984.
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`Patent Owner responds that the proffered combination does not
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`disclose a krill oil having an ether phospholipid content within the ranges
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`required by the challenged claims. PO Resp. 14–16. In particular, Patent
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`Owner contends that Fricke 1986, which discloses krill ether phospholipid
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`levels obtained using the krill extracts examined in Fricke 1984 (Ex. 2006, 1,
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`Table 1), contradicts Petitioner’s declarant’s calculations, and demonstrates
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`that “the Fricke 1984 krill oil does not provide an oil with the claimed range
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`of ether phospholipids and the combination of references does not teach each
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`element of the claims.” Id. at 16. Patent Owner additionally argues that an
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`ordinarily skilled artisan would not have had reason for, or a reasonable
`
`expectation of success in combining Sampalis, Tanaka, and Fricke 1984 to
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`arrive at the claimed invention. Id. at 16–21.
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`On Reply, Petitioner asserts that an ordinarily skilled artisan “would
`
`have understood that the ether phospholipid levels reported in Fricke [1986]
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`are anomalies that are significantly lower than the typical ether lipid content
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`23
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`observed in krill.” Reply 6 (citing Ex. 1086 ¶¶ 67–69, 76). For example,
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`according to Petitioner, because Fricke 1986 does not directly measure krill
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`ether phospholipid levels, but rather, depends on successive degradation of
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`those phospholipids in its analysis, “[t]here are numerous steps . . . in which
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`losses of the final quantifiable compound could occur.” Id. at 5. In addition,
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`Petitioner contends that the molecular mass of the degradation product
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`measured by Fricke 1986 is much lower than that of the ether phospholipids
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`present in krill, and thus, the weight percentage results for the degradation
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`product will necessarily be lower than the results would have been had the
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`kill ether phospholipids been measured directly. Id. at 4–5 (citing Ex. 1086
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`¶ 67).
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`Petitioner further contends that an ordinarily skilled artisan would
`
`have recognized that the method of ether phospholipid analysis employed in
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`Fricke 1986 was inaccurate and obsolete. Reply 6–7. Specifically,
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`Petitioner asserts that an ordinarily skilled artisan would have had a
`
`“compelling reason to rely upon the results obtained using a more precise
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`analytical technique, such as NMR, and disregard Fricke [1986]’s outdated
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`and imprecise method which failed to directly measure ether phospholipid
`
`content or differentiate between ether phospholipids and other possible
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`sources of ether lipids in the samples analyzed.” Id. at 6 (citing Ex. 1086
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`¶ 71). Petitioner also characterizes Tanaka as disclosing “a direct and more
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`precise technique for measuring krill ether phospholipids.” Id. at 8.
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`According to Petitioner, Tanaka involves fewer degradation steps than
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`Fricke 1986. Id. (citing Ex. 1086 ¶ 79). Petitioner additionally addresses
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`24
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`IPR2017-00747
`Patent 9,078,905 B2
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`Patent Owner’s rationale to combine and reasonable expectation of success
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`arguments. Reply 9–25.
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`We agree with Patent Owner that Petitioner has not carried its burden
`
`to establish by a preponderance of the evidence that the combination of
`
`Sampalis, Tanaka, and Fricke 1984 teaches or suggests an encapsulated krill
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`oil including “from about 3% to about 15% w/w ether phospholipids”
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`(Ex. 1001, 35:48–50), as required by claim 1, or “from about 3% to about
`
`10% w/w ether phospholipids” (id. at 36:30–32, 36:50–52), as required by
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`claims 12 and 18.
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`Petitioner does not rely on a direct measurement of the ether
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`phospholipids present in kri
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