UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`RIMFROST AS.,
`Petitioner.
`
`v.
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`AKER BIOMARINE ANTARCTIC AS.,
`Patent Owner
`_____________
`
`Case IPR2018-01730
`Patent 9,072,752 B2
`____________
`
`Record of Oral Hearing
`Held: December 9, 2019
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`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JOHN E. SCHNEIDER, Administrative Patent Judges.
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`RIMFROST AS.,
`Petitioner.
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`v.
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`AKER BIOMARINE ANTARCTIC AS.,
`Patent Owner
`_____________
`
`Case IPR2018-01730
`Patent 9,072,752 B2
`____________
`
`Record of Oral Hearing
`Held: December 9, 2019
`
`Before ERICA A. FRANKLIN, TINA E. HULSE, and
`JOHN E. SCHNEIDER, Administrative Patent Judges.
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`Case IPR2018-01730
`Patent 9,072,752 B2
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` P P E A R A N C E S
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` A
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`ON BEHALF OF PETITIONER:
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`
`J. MITCHELL JONES, J.D., Ph.D., ESQUIRE
`CASIMIR JONES S.C.
`2275 Deming Way,
`Suite 310
`Middleton, WI 53562
`608-662-1276
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`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JAMES F. HARRINGTON, ESQUIRE
`MICHAEL I. CHAKANSKY
`HOFFMANN & BARON, LLP
`6900 Jericho Turnpike
`Syosset, NY 11791
`516-822-3550
`
`
`
`The above-entitled matter came on for hearing on Monday,
`December 9, 2019, commencing at 12:55 p.m., at the U.S. Patent
`and Trademark Office, Texas Regional Office, 207 S Houston
`Street, Suite 159, Dallas, Texas 75202.
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`Patent 9,072,752 B2
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` (Proceedings begin at 12:55 p.m.)
` JUDGE SCHNEIDER: All right. Today, we're here to
`hear IPR2018-01730, and it's Rimfrost versus Aker BioMarine
`Antarctic. I think I got that right.
` Who do we have representing Petitioner today?
` MR. HARRINGTON: James Harrington.
` JUDGE SCHNEIDER: Okay.
` MR. HARRINGTON: Here for --
` JUDGE SCHNEIDER: Sorry, go ahead.
` MR. HARRINGTON: Harrington.
` JUDGE SCHNEIDER: And for Patent Owner?
` MR. JONES: Mitchell Jones.
` JUDGE SCHNEIDER: All right.
` I need -- both have asked for 60 minutes for
`presentation.
` Petitioner, do you intend to reserve time for
`rebuttal?
` MR. HARRINGTON: Yes, I'd like to reserve 25
`minutes, if I could.
` JUDGE SCHNEIDER: I'm sorry, how much? 25?
` MR. HARRINGTON: 25, yeah.
` JUDGE SCHNEIDER: Yeah. You'd have to speak loud.
`I'm hard of hearing.
` MR. HARRINGTON: Okay.
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`Case IPR2018-01730
`Patent 9,072,752 B2
` JUDGE SCHNEIDER: I got them to a depth.
` And Patent Owner?
` MR. JONES: 20 minutes for rebuttal.
` JUDGE SCHNEIDER: 20 minutes, okay.
` Before we begin, are there any questions from either
`side?
` In that case, Petitioner, it's your burden. You can
`go ahead and proceed with your argument.
` MR. HARRINGTON: Okay, thank you.
` JUDGE SCHNEIDER: One thing I'd like to point out,
`because we have two judges appearing remotely, Judge Hulse and
`Judge Franklin. When you go through your slides, if you could
`tell them what slide you're working on, so they could follow
`through in the PDF that you provided us because they really
`won't be able to see what's on the screen.
` MR. HARRINGTON: Yes. Yeah. We'll identify that.
`That was the case in the other hearing as well.
` JUDGE SCHNEIDER: That's right. I just want to
`remind everyone.
` MR. HARRINGTON: Okay, will do.
` Okay. Good afternoon. My name is James Harrington.
`I'm lead counsel on behalf of Petitioner, Rimfrost AS. I'm
`here with first backup counsel, Michael Chakansky, and we're
`here again for another, one of what we call the Krill IPRs.
`This one deals with U.S. Patent 9072752, which, again, deals
`with the same specification that we have been discussing, very
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`similar claim elements, and, therefore, a lot of the same art
`that we've relied on in the previous IPRs, so a lot of these
`will be familiar.
` And I've utilized this slide in the other three IPRs
`that we discussed, but I wanted to go through it again because
`I do think it is --
` JUDGE HULSE: Counsel, I'm sorry. Is your mic on,
`on the podium? Because I -- Judge Franklin and I are having a
`hard time hearing you.
` MR. HARRINGTON: Oh, I'm sorry. Is that better?
` JUDGE HULSE: Okay, thank you.
` MR. HARRINGTON: Okay. Okay.
` JUDGE HULSE: Thank you.
` MR. HARRINGTON: Okay. So this is Slide 2, and this
`is a slide that we've referred to previously, but I think it's
`instructive. It's a slide from a PowerPoint presentation
`given by the Patent Owner's expert witness and chief
`scientific officer, Dr. Hoem, and it just confirms that a lot
`of the elements that we're talking about here are -- all of
`the elements are natural components that are found in krill.
` We see, the lipids are divided into two classes:
`neutral and polar. The neutral is in white and shows
`triglycerides at 34 percent; the phospholipid portion is 44
`percent. And then to the right, we see in blue the
`phospholipids broken down further into certain subcomponents.
`We see phosphatidylethanolamine at 2.6 percent,
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`Patent 9,072,752 B2
`phosphatidylcholine at 38 percent; that's by far the highest.
`And later on, when we're discussing ether phospholipids, we'll
`mainly be discussing the alkylacyl varieties of
`phosphatidylethanolamine and phosphatidylcholine, what we
`abbreviate as PC throughout the presentation.
` Okay. If we move to Slide 6, we provided an
`independent claim summary. These are for the independent
`claims that were in the original patent that relate to a polar
`krill oil that includes phosphatidylcholine at greater than
`about 40 percent, ether phospholipids at greater than about 5
`percent. Independent Claim 14 refers to an E superba krill
`oil with greater than about 45 percent PC, greater than about
`5 percent, ether phospholipids triglycerides less than about
`25 percent, Omega-3 fatty acids at least 36 percent, and
`astaxanthin is also present.
` If we move to Slide 12, we provided a claim summary
`for the proposed amended claims, and, here, we see the Patent
`Owner is proposing changing the ether phospholipid range from
`6 to 10 percent and specifying the astaxanthin ester level
`from 100 to 700 milligrams per kilogram.
` Okay. Moving to Slide 15. We provide this chart
`that identifies the claims that the Board has previously found
`unpatentable and some of the elements there. And, here, we
`could see the 100 to 700 milligrams per kilogram of
`astaxanthin esters was found obvious in the '295 final written
`decision, as well as the 5 to 8 percent ether phospholipids
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`level.
` Moving to Slide 22. I didn't want to go through all
`the prior art, but I did want to highlight certain aspects of
`the Catchpole reference, which is our primary reference. And
`so if we go to Slide 22, we see, this is Example 18 in which
`Catchpole discloses the fractionation of lipids from krill.
`And, here, what they did is they did the extraction in a two-
`step process. The first step was extracting neutral lipids
`only, not all of the neutral lipids, but neutral lipids only
`in Extract 1, using what they call, CO2-NIT -- just CO2 by
`itself. And then in the second extract, they included
`ethanol, a polar solvent, at 11 percent to extract the polar
`lipids in that second step.
` And that's what we see at the bottom there in Table
`16, an Extract 2. There was a level of PC at 39.8 percent,
`almost 40 percent, and phospholipids, AAPC and AAPE, again,
`going back to that abbreviation we mentioned in connection
`with Slide 2, discloses at least 4.8 percent. It doesn't
`disclose the lyso, ether phospholipids, and some of the others
`that may be there. But at the very least, it's 4.8 percent
`ether phospholipids, and that hasn't been contested.
` Okay. So moving to Slide 26, the Board has
`concluded that the Catchpole reference discloses krill
`extracts with greater than 5 percent ether phospholipids. And
`we have the quote here from the '295 final written decision,
`where the Board held that, "A preponderance of the evidence
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`demonstrates that it would have been obvious to one of
`ordinary skill in the art to prepare a krill oil composition
`having from 5 percent to 8 percent ether phospholipids."
` Okay. Moving to Slide 27. We see that Catchpole
`also describes krill extracts with greater than 5, 6, and 7
`percent in the claims. They outlined, providing a feed
`material that includes at least 0.3 percent
`acylalkyphospholipids. Those are ether phospholipids. And
`then in Claim 95, they identify a resulting product that
`includes greater than 5 percent ether phospholipids, and in
`Claim 96, a product that includes greater than 10 percent
`ether phospholipids.
` And moving to Slide 28. Catchpole not only
`discloses the krill lipid extracts with these higher ether
`phospholipid levels, but they also show and teach how you
`would get there. And the first step would be by starting with
`a feed material that includes at least 0.3 percent by mass of
`ether phospholipids. And Examples 12, 17, and 18 in the
`Catchpole reference are the only feed materials that satisfied
`that criteria, and those are the three marine animals that are
`disclosed as feed material.
` And if we go to Slide 29, we see that of the feed
`materials disclosed and the three marine animals, krill is by
`far the best. In Example 18, it provided the highest level of
`phospholipids, the highest concentration of PC, and the
`highest concentration of ether phospholipids.
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` JUDGE SCHNEIDER: Counsel, one of the issues, I
`believe, in this case is whether or not Catchpole actually
`anticipates the claims that are precisely greater than 6
`percent or 6 to 10 percent of ether phospholipids.
` MR. HARRINGTON: Uh-huh.
` JUDGE SCHNEIDER: And while I agree with you that it
`teaches that range in general, is there an example, a specific
`example based upon krill oil or krill feed material that shows
`6 to 10 percent?
` MR. HARRINGTON: No, not in Catchpole.
` JUDGE SCHNEIDER: All right. So --
` MR. HARRINGTON: So --
` JUDGE SCHNEIDER: So do you concede that Catchpole
`doesn't anticipate the claims that call for 6 to 10 percent?
` MR. HARRINGTON: Well, I would say, if it doesn't
`anticipate, it's an extremely strong obviousness case.
` JUDGE SCHNEIDER: Okay.
` MR. HARRINGTON: Yeah.
` JUDGE SCHNEIDER: Thank you. And your argument is
`obviously based on Catchpole?
` MR. HARRINGTON: Correct. Correct, yes.
` Okay. So moving to Slide 31. Catchpole further
`teaches how to obtain these higher ether phospholipid levels
`by taking that feed material that has the adequate amount of
`ether phospholipids in it, and then applying co-solvent
`concentrations of at least 20 percent more, preferably 30
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`percent, to achieve what they call the high levels of
`extraction of ALP, which are ether phospholipids.
` And moving to Slide 34. We just wanted to highlight
`that there are some other feed materials that Catchpole did
`experiment with, and they're identified here. Excuse me.
`Example 18 again is the krill material. But we just wanted to
`highlight this because the Patent Owner has tried to, we
`think, sort of, obfuscate things a little bit in terms of
`comparing different examples with different feed materials.
`So this might help clarify things a little bit.
` And if we go to Slide 35, we see that when -- if you
`look at Examples 7 and 8, specifically, again, this is in
`Catchpole, starting with the same feed material because that's
`important, and something, I think, that the Patent Owner, sort
`of, glossed over. But starting with the same feed material,
`if we apply 10 percent and compare it to the 10 percent
`ethanol, if we apply 30 percent ethanol, results in an almost
`five-fold increase in the concentration of PC. So -- and
`that's just simply showing that more polar solvent is
`extracting polar lipids; it's not anything that was new.
` Okay. Moving to Slide 39.
` I apologize. I had a cold last week, so I'm -- I
`still have a few remnants.
` But on Slide 39, this is another reference we wanted
`to highlight as sort of an example of what this, you know,
`high -- phospholipid high PC krill extract would look like.
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`So, here, in the Enzymotec extract, we have 60.2 to 82.5
`percent PC, extremely high, 75.6 to 91.8 percent total
`phospholipids, very little or no triglycerides present. And
`Dr. Tallon, Petitioner's expert, has calculated that based on
`this level of PC and total phospholipids, we would get between
`8 and 9.7 percent ether phospholipids.
` And if we move to Slide 40, we can see a little bit
`more about how Dr. Tallon came to this conclusion; because the
`ratios of ether phospholipids to phospholipids and ether PC to
`total PC remain fairly constant throughout the krill oil
`extracts of the prior art. So, here, we see that in Example
`18 of Catchpole, the ether phospholipid to phospholipid ratio
`is 10.6; the ether PC to total PC ratio is 10.4.
` If we look at the Patent Owner's '812 Patent, this
`is a patent that's not related to the family that we're
`dealing with, we have an ether PC to total PC ratio, again, of
`10.4, ether phospholipid to phospholipid ratio of 8.5.
` We don't have it in the slide here, but in the NKO
`formulation that's identified as the closest prior art in the
`'752 Patent in Table 22, the ether phospholipid to total
`phospholipid ratio was 8.2, the ether PC to total PC ratio was
`10.2.
` So, again, all are very much in the same area. And
`if any of those ratios are applied to the Enzymotec krill
`extract, you would obtain an ether phospholipid level within
`the proposed claimed amount of 6 to 10.
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` So moving to Slide 45, we wanted to just quickly
`highlight the astaxanthin ester element as well. Here, we see
`that the NKO krill oil, again, the same one that I referred to
`in Table 22 of the Patent, this table is from the provisional,
`shows an astaxanthin level -- astaxanthin ester in the Neptune
`Krill Oil of 472 milligrams per kilogram; again, right in the
`middle of the proposed amended claim. And, again, this was
`acknowledged by Patent Owner, at least in the provisional
`application, as the closest prior art.
` And just to be clear, the Petitioner is not relying
`in any way on inherency to make this argument. We're not
`saying that every NKO oil would include this amount. There
`are natural variations; we wouldn't be able to do that. What
`we're saying is that this particular NKO formulation that the
`Patent Owner acknowledged as the closest prior art had this
`level, and, therefore, it's nothing new or exceptional.
` Moving to Slide 52.
` Oh, one of the point I wanted to make to was the
`lack of criticality of the astaxanthin ester levels disclosed
`in the '752 Patent. They go all the way from less than .001
`milligrams per kilogram all the way up to 2500 milligrams per
`kilogram. So, again, there's nothing disclosed in the patent
`specification that would indicate that the 100 to 700 is
`special in any way or not obvious.
` JUDGE SCHNEIDER: Counsel, while we're talking about
`the astaxanthin ester levels here, an issue that's come up and
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`we're hearing in the '295, I assume it will be applicable
`here, is, what's the moderation to limit the range of
`astaxanthin to the 100 to 700 milligrams that we've got here?
`And, you know, your general motivation that you're describing
`in your brief, as I understand it, and I maybe oversimplifying
`it, is it generally more of the good stuff is better so that
`you're always going to want to be at the high end of the
`ranges here? But, here, Patent Owner has capped it. And so
`what's the motivations to limit yourself to something that's
`on the lower end of the range and what the art teaches?
` MR. HARRINGTON: Well, there are a couple of
`reasons.
` The 100 to 700 range has been disclosed as being
`still beneficial in the Randolph reference, which is what I
`was going to get to in a minute, and there could be a
`motivation, if we wanted to speculate.
` The astaxanthin level is a known antioxidant.
`Again, Randolph teaches that the 100 to 700 range is adequate.
`The -- we've seen commercial astaxanthin being sold
`commercially just on its own, and it can be added as an
`ingredient. It's a well-known antioxidant; it could be added
`to other ingredients. If you had an exceptionally high level,
`perhaps you would want to limit it to 100 to 700 and sell the
`remainder.
` But our point is really that the 100 to 700 is well-
`known in the art and would be obvious in view of the fact that
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`there are plenty of references, including Randolph, NKO, and
`the Sampalis reference, which we'll briefly talk about next.
`That all show astaxanthin levels within that 100 to 700 range
`being effective in terms of health benefits.
` JUDGE SCHNEIDER: Thank you.
` MR. HARRINGTON: So if we move to Slide 52, this is
`the Sampalis reference that I was mentioning, and they
`disclose 200 milligrams per 100 milliliters of astaxanthin in
`the krill oil. And, again, Sampalis II goes through a long
`discussion, and we have it cited in our briefs, about the
`benefits -- the health benefits of this krill oil formulation.
` So, here, again, they're disclosing this range being
`beneficial for health reasons. And --
` JUDGE SCHNEIDER: How does the 200 milligrams --
` MR. HARRINGTON: Oh, I'm sorry.
` JUDGE SCHNEIDER: (indiscernible).
` MR. HARRINGTON: I messed up on that calculation.
` JUDGE SCHNEIDER: All right.
` MR. HARRINGTON: The 200 -- the 20 milligrams per
`100 milliliters would equate to 200 milligrams per kilogram.
` JUDGE SCHNEIDER: Okay.
` MR. HARRINGTON: So within the proposed claim range.
` JUDGE SCHNEIDER: So using the low end of the range?
` MR. HARRINGTON: It's the low end of the range.
` JUDGE SCHNEIDER: Okay.
` MR. HARRINGTON: Correct.
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` And the Patent Owner has argued that Sampalis II
`should be disregarded because they assert that krill oils do
`not have this canthaxanthin ingredient that's listed there.
`But this is a little disingenuous because the '752 Patent
`itself acknowledges that the prior art disclose krill oil
`extracts containing canthaxanthin.
` And the Patent Owner had also argued that Grynbaum
`discloses no canthaxanthin in its krill oil. That's another
`reference that we relied on. But the very next sentence from
`Grynbaum indicates that that finding was contrary to the prior
`art.
` So the bottom-line is we feel that Sampalis II is
`another reference that can be utilized for this well-known
`range of 100 to 700 for krill oil extract, for astaxanthin
`esters.
` And if we go to Slide 55, this is the Randolph
`reference, another reference that we're relying upon for the
`astaxanthin ester level. And so Randolph is a reference that
`discloses krill oil and astaxanthin.
` The Patent Owner has made arguments in their briefs
`about the long lists of other ingredients that could be there,
`suggesting, you know, that that would somehow be a teaching
`away. But Randolph does disclose formulations with only two
`ingredients; rosehips and krill oil would be one example in
`Paragraph 8.
` And if we go to Slide 56, this is the portion of
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`Randolph that Dr. Tallon relied upon. Randolph discloses, any
`amount of krill oil, the compositions, the disclosed
`composition, can include any amount of krill oil and any
`amount of astaxanthin ingredient. They later on further
`specify that it could be 0.5 milligrams of astaxanthin and
`also 300 -- 3000 milligrams of krill oil, which would provide
`the 158 milligrams per kilogram of astaxanthin esters, again,
`and well within the proposed claimed range.
` And if we go to Slide 58, the Board, in connection
`with the '295 written decision, had previously concluded that
`it would have been obvious to one of ordinary skill in the art
`to prepare a krill oil composition between 100 and 700
`milligrams per kilogram of astaxanthin esters, and we feel
`that conclusion was correct and still remains correct for this
`particular case.
` So I just have one more slide. I was just going to
`conclude with -- if we go to Slide 72. I just wanted to
`remind the Board that the Federal Circuit has affirmed its
`first two final written decisions, and part of those decisions
`indicated that, "Lipid components of krill oil can be
`extracted using any number of suitable solvents, and that the
`proportions of the components could be varied in predictable
`ways." And we've -- that finding still holds true for this --
`for the instant IPR as well.
` So if I could, I'd like to reserve the time. If
`there are any questions?
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`Case IPR2018-01730
`Patent 9,072,752 B2
` JUDGE SCHNEIDER: All right. Do any of the Judges
`have any questions?
` All right. You've got at least a half hour left.
` MR. HARRINGTON: Okay, thank you. That should be
`plenty. Thank you.
` JUDGE SCHNEIDER: You should be on green light.
`Make sure you --
` MR. JONES: Yeah.
` JUDGE SCHNEIDER: Okay.
` MR. JONES: All right. Good afternoon. I'm
`Mitchell Jones. I represent Aker BioMarine Antarctic AS.
` So the Petitioner went over the claims. My
`presentation today is going to focus more on the two dependent
`claims -- or four of the dependent claims and the main claims
`at Claims 5, 6, 15, and 16, which require greater than about 6
`percent ether phospholipids or greater than about 7 percent
`ether phospholipids. And, of course, the motion to amend
`claims further limit that range between 6 and 10 ether
`phospholipids.
` And so the Petitioner has brought up the issue of --
`issue of preclusion or collateral estoppel.
` With respect to the claims -- and, here, I want to
`point out that the previous decisions do not apply to the
`claims that require this greater than about 6 percent ether
`phospholipids, or greater than about 7 percent ether
`phospholipids, or the motion to amend claims.
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`Case IPR2018-01730
`Patent 9,072,752 B2
` If you look at the '295 written decision, the range
`discussed in those claims was 5 to 8 percent ether
`phospholipids, and there's specific finding in the '295 IPR
`final written decision that at least part of the decision was
`based on the fact that the claimed range of 5 to 8 percent
`ether phospholipids was adjacent to the 4.8 percent ether
`phospholipids that are taught in Example 18 of Catchpole.
` And as I point out here in the slide, when we move
`that claimed range up to either greater than about 6 percent
`or greater than about 7 percent using Petitioner's claim
`construction, you know, we either get a 12 -- about a 13
`percent increase or a 26 percent increase over the 4.8
`percent.
` And as further support for that, it came up during
`Petitioner's presentation, the Institution decision at Page 11
`found that, at that point, that the Board was not satisfied
`that Petitioner had established a reasonable likelihood that
`Catchpole would anticipate dependent Claims 5 and 6. And so
`it further indicates -- it further gives support for the fact
`that that claim -- those claim limitations are different than
`the claim limitations that were decided in the '295 IPR.
` And the other thing that I wanted to point out --
`because I'm going to get into the, you know, patentability,
`Claims 5, 6, and 15, and 16 in just a second, but I also
`wanted to point out that in Petitioner's presentation, in
`Slide 39 and 40, they did a little bit -- they discussed using
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`Case IPR2018-01730
`Patent 9,072,752 B2
`ether phospholipid numbers derived from Catchpole and
`multiplying those times values at -- in the Enzymotec
`reference to try to give an ether phospholipid range.
` But in Petitioner's, you know, reply, they said --
`and, you know, this is a quote from Page 20, to be clear, the
`Petition in the Institution decision rely upon Catchpole and
`not Enzymotec to show that the krill extracts, having greater
`than about 5 percent -- 6 percent and 7 percent ether
`phospholipids were, you know, described in the art. And so I
`drew that as an admission that, you know, they're relying on
`Catchpole for that claim limitation and not some combination
`of Catchpole and Enzymotec.
` So moving onto Claims 5 and 6. It's undisputed at
`this point that the only specific example of a krill oil and
`Catchpole is Example 18 and the data for that is in Table 16.
`And that krill oil allegedly contains 4.8 percent ether
`phospholipids, and it's -- I just discussed, it does not
`anticipate --
` JUDGE SCHNEIDER: Counsel, we accept your argument
`on anticipation, but aren't those claims still obvious under
`the teachings of Catchpole?
` MR. JONES: Yeah, let me go ahead and move to that
`then.
` JUDGE SCHNEIDER: Why don't we discuss that then?
` MR. JONES: Okay, yeah. Yeah.
` JUDGE SCHNEIDER: We've (indiscernible)
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`Case IPR2018-01730
`Patent 9,072,752 B2
`anticipation.
` MR. JONES: So -- yeah.
` JUDGE SCHNEIDER: So let's go ahead.
` MR. JONES: Yeah.
` So that -- moving onto the next slide. This is
`Slide 9. And I'm sorry for not referring to the slides
`earlier, but I think this kind of gets in the meat of it.
` So Slide 9 of the presentation. Ground 4, it's --
`Claims 5 and 6 are not obvious over Catchpole and Enzymotec,
`and Ground 5, Claims 15 and 16 are not obvious over Catchpole,
`and Enzymotec, and Sampalis II.
` So first point is, there's a missing element there
`because there's no combination in those references that
`teaches krill oil with either greater than about 6 percent or
`greater than about 7 percent ether PLs, if you apply
`Petitioner's claimed construction for those elements. And,
`furthermore, there's no reasonable expectation of success.
` JUDGE SCHNEIDER: What is your reasonable
`expectation of success argument based on?
` MR. JONES: Our reasonable expectation of success
`argument? To address -- and let me refer to Slide 11 here,
`and we'll get into specifics with the following slides.
` And this comes up with both respect. I'm going to
`use a missing element slide here to introduce it, but these
`arguments are going to apply to reasonable expectation of
`success as well.
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`Case IPR2018-01730
`Patent 9,072,752 B2
` Example 18, in Table 16 of Catchpole, as we
`discussed, disclose a krill oil that allegedly has 4.8 percent
`ether phospholipids. So using that as a starting point, then
`to get to our claimed ranges, it would need to be obvious to
`increase that amount. And Petitioner's rationale for that is
`that there's teachings in Catchpole that show how you can
`manipulate the extraction conditions to increase the ether
`phospholipid content from 4.8 percent up into the claimed
`range.
` They provide a couple of different rationales. And,
`again, these are listed on Slide 11. The first one is you can
`increase the co-solvent concentration. Of course, Example 18
`uses 11 percent ethanol. And so they say that, Well, we can
`increase the ethanol concentration to 20 or 30 percent and
`increase the ether phospholipid level.
` And then they also argued that the other thing you
`could do is in Step 1 of the extraction. You could increase
`the -- Example 18 uses NIT-CO2. They say that you could use a
`low co-solvent concentration in Step 1. And what -- so -- and
`for example, 3 percent ethanol in Step 1, to extract more
`neutral lipids in Step 1, so that you would increase the
`phospholipid content when you're extracting Step 2.
` Now, they part Examples 7 and 8 as supporting data
`for that, but when you consider the application as a whole,
`there's contrary data that really -- that throws those -- you
`know, that undermines that rationale.
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`Case IPR2018-01730
`Patent 9,072,752 B2
` So the first example I'm going to refer you to is
`Example 10, which was -- first off, Example 7 and 8 were
`extracts of this dairy lipid extract B, and there's no data on
`ether phospholipids in those examples.
` If you refer to Example 10, which was egg yolk
`lecithin, they extract it with 25 percent ethanol. And this
`is Slide 12 in our presentation.
` If you look at the example in Table 9, and this is
`example where they use 25 --
` JUDGE SCHNEIDER: Counsel, I understand your
`argument on this. But, first of all, isn't the -- hasn't a
`review of Federal Circuit already said that a person of skill
`in the art would understand how to manipulate the different
`solvents or different fractions and from what (indiscernible)
`that meets the claim limitations, couple that with Catchpole
`teaching up to 10 percent of the ether phospholipids to
`something that's desirable? Doesn't that answer the issue of
`whether or not -- it has already been decided, but that's --
`it can be done by a certain person of skill in the art?
` MR. JONES: I think an argument can be made if it
`was decided for 5 to 8 percent, but not 6 percent -- at least
`6 percent, at least 7 percent, or the
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