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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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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.
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`__________
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`IPR2020-01534
`Patent 10,010,567 B2
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`__________
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`Record of Oral Hearing
`Oral Hearing Held: February 17, 2022
`__________
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`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`JON B. TORNQUIST, Administrative Patent Judges.
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`Trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIMFROST AS,
`Petitioner,
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`v.
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`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`__________
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`IPR2020-01534
`Patent 10,010,567 B2
`
`__________
`
`Record of Oral Hearing
`Oral Hearing Held: February 17, 2022
`__________
`
`
`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`JON B. TORNQUIST, Administrative Patent Judges.
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`IPR2020-01534
`Patent 10,010,567 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`JAMES F. HARRINGTON, ESQ.
`MICHAEL I. CHAKANSKY, ESQ.
`Hoffmann & Baron, LLP
`4 Century Drive
`Parsippany, NJ 07054
`(516) 822-3550 (Harrington)
`(973) 331-1700 (Chakansky)
`jfhdocket@hbiplaw.com
`micdocket@hbiplaw.com
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`
`
`ON BEHALF OF THE PATENT OWNER:
`
`J. MITCHELL JONES, Ph.D.
`Casimir Jones S.C.
`2275 Deming Way, Suite 310
`Middleton, WI 53562
`(608) 662-1277
`jmjones@casimirjones.com
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`The above-entitled matter came on for hearing on Thursday, February
`17, 2022, commencing at 1:00 p.m. EST, by video/by telephone.
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`IPR2020-01534
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`P-R-O-C-E-E-D-I-N-G-S
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`12:58 p.m.
`JUDGE MITCHELL: Good afternoon, Counsel. I am Judge
`Mitchell. With me in this hearing are Judges Franklin and Tornquist. We
`are now on the record.
`This is a final oral hearing and inter partes review proceeding,
`IPR2020-01154.
`The Petitioner is Rimfrost AS. And the Patent Owner, and I'm
`probably not going to pronounce this right, Aker Biomarine Antarctic AS.
`We do have a court reporter present. The Board will issue a
`transcript for this case, which will be made a part of the record.
`We also wanted to let you know that there is a public line for this
`hearing where the public can call in and listen to the hearing. Certainly
`though, the line is muted.
`Counsel for Petitioner, would you please identify who is present for
`Petitioner and who will be speaking on behalf of Petitioner?
`MR. HARRINGTON: Yes. James Harrington, Lead Counsel for
`Rimfrost. With me is Michael Chakansky, First Backup Counsel.
`JUDGE MITCHELL: Great. Let's pause one minute. I think
`one of the judges does not have audio. I think Judge Tornquist does not
`have audio.
`(Pause.)
`JUDGE TORNQUIST: My audio is back on.
`JUDGE MITCHELL: Great. I'm glad that happened in the
`beginning.
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`So Mr. Harrington, you'll be presenting the entire argument for
`Petitioner?
`MR. HARRINGTON: Yes, for the most part. Mr. Chakansky
`may chime in.
`JUDGE MITCHELL: Okay. Great. Thank you.
`And Counsel for Patent Owner, would you please identify who is
`present for Patent Owner and who will be speaking on behalf of Patent
`Owner?
`MR. JONES: John Mitchell Jones is present. That's myself. I'll
`be speaking on behalf of Patent Owner.
`JUDGE MITCHELL: Great. Thank you and welcome.
`We do want to thank you for your flexibility in participating in this
`hearing remotely. And we do want to emphasize that our primary concern
`is your right to be heard.
`So if at any time during this hearing we encounter any more
`technical difficulties, or that you feel that your presentation here is
`undermining your ability to adequately represent your client, please let us
`know immediately, either by speaking up during the hearing or contacting
`the team members who provided you with connection information, so that
`we can make sure that everybody has an opportunity to be adequately heard
`here today.
`Additionally, if you come to a good faith belief that the pace of this
`proceeding prevents you from adequately explaining your positions, please
`also speak up and we will consider some expansion of the allotted time.
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`As set forth in our hearing order, each side has 60 minutes to present
`its case. My colleagues and I will do our best to keep track of time, but we
`also suggest that the parties also do the same.
`Petitioner will present its arguments first as it bears the burden of
`showing unpatentability of the challenged claim.
`Petitioner, would you like to reserve any time for rebuttal?
`MR. HARRINGTON: Yes, please. Twenty minutes.
`JUDGE MITCHELL: Twenty minutes.
`And Patent Owner, you will have the last word. So Mr. Jones,
`would you like to reserve any of your time?
`MR. JONES: Yes, 20 minutes.
`JUDGE MITCHELL: So just a few final instructions. Please
`identify yourself each time you are speaking, and please mute your
`microphones when you are not speaking. Please be mindful that there can
`be a lag in audio and video, so please pause before speaking to avoid
`speaking over one another.
`Also, we do have access to the entire record including your
`demonstratives. So when you are referring to a demonstrative, a paper, or
`an exhibit, please point out the paper number or the page number and
`identify it in some way, and identify it by slide number or whatever you
`have.
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`Then pause a couple of seconds just to let us pull it up to make sure
`we're on the same page. This would also make it clearer for the record.
`When we go back later, we'll know what we were discussing.
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`Our expectation here is that, unless absolutely necessary, Counsel for
`the opposing party will not interrupt the other side's presentation. If you
`have an objection or a comment that you wish to make, please hold it until
`your own time for speaking and address it during that time.
`So Petitioner, with that, Mr. Harrington, you may begin when you
`are ready.
`MR. HARRINGTON: Okay. Thank you. I'll share my screen.
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`Okay.
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`Thank you very much. James Harrington, Lead Counsel on behalf
`of Petitioner Rimfrost AS. We're here on another of what we call the krill
`oil IPRs. Petitioner Rimfrost has successfully challenged five other IPRs.
`JUDGE MITCHELL: Mr. Harrington, I think you're on mute.
`MR. HARRINGTON: Can you hear me now?
`JUDGE MITCHELL: No, sorry. I don't know if you can hear me,
`but I can't hear you.
`MR. HARRINGTON: I can hear you.
`JUDGE MITCHELL: Okay. Now I've got it. I apologize. Go
`ahead. I'm sorry.
`MR. HARRINGTON: Okay. Let me just try sharing.
`James Harrington, Lead Counsel for Rimfrost AS. We're here on
`another one of what we call the krill oil IPRs. Rimfrost AS was able to
`successfully challenge five other Aker patents.
`On January 12th, the Board heard two other oral arguments on two
`other Aker patents. And we are here today regarding US Patent No.
`10,010,567.
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`Moving on to slide 2. Sorry. My presentation wasn't cooperating.
`Okay. Sorry about that.
`Moving on to slide 2, we present the invalidity grounds as set forth
`in the petition. There we go.
`Moving on to slide 3, we set forth the Independent Claims 1 and 15.
`And we have highlighted the element less than 3 percent free fatty acids
`since that is the one element that the Patent Owner is contesting. And more
`specifically, whether that element is disclosed in Table 2 of Bottino II.
`Moving to slide 4, Petitioner asserts that collateral estoppel should
`apply in this case.
`Moving to slide 5, we set forth the family chart for the '567 patents.
`And we have highlighted in red in the lower left-hand corner the '567 Patent.
`You can see that the '567 Patent is a second continuation off of the '453
`Patent. And the '453 Patent is one of the five, we have them listed across
`from left to right here, one of the five that were previously successfully
`challenged. All five of those patents were found unpatentable by the
`Board.
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`To the right we note that all of the claims of the '567 Patent were
`rejected for non-statutory double patenting as being not patentably distinct
`from the claims of the '453, '905, '752, and '765 patents. So Patent Owner
`filed terminal disclaimers with respect to all four of those patents.
`Moving to slide 6, Patent Owner cannot take positions inconsistent
`with prior adverse judgements. And the citation for that is 37 CFR § 42.73.
`Moving to slide 7, the Board previously relied on all references in
`finding the five other krill oil patents in the same family as the '567 Patent
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`unpatentable, with the exception of two references, Hardardottir and
`Yamaguchi, which are used for the disclosure of the cholesterol limitation
`set forth in Claims 13 and 19.
`However, the inclusion of this cholesterol limitation does not
`materially alter the question of the '567 Patent's unpatentability. Therefore,
`collateral estoppel should be applicable.
`JUDGE MITCHELL: Mr. Harrington, in any of those previous
`IPRs did we specifically address any limitation of less than 3 percent fatty
`acids weight-by-weight of said krill oil? Did we specifically address that
`limitation somewhere?
`MR. HARRINGTON: Not in the final written decision. But it
`was an element in one of the cases we heard on January 12th. That was
`expressly set forth as a limitation there. We relied upon Bottino II for the
`disclosure of that element. And there was never any argument that that
`disclosure was not present.
`Actually, I have it up on the next slide, slide 8. It was the '046
`Patent on January 12th where the Board heard an oral argument. Table 2 of
`Bottino II was used for the 3 percent free fatty acid element. And it was
`never disputed that Bottino II does not teach that element.
`In the '453 Patent for which a final written decision was granted, we
`used Table 2, Bottino II with a disclosure of other elements, triglycerides,
`phosphatidylcholine, the PC level, and the omega-3 fatty acid level. So it
`was relied on fairly heavily in the '453 Patent.
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`And again, it was never argued that the results in Table 2 of Bottino
`II were unreliable. Therefore, the Board did previously rely on the Bottino
`II reference in finding all of the claims of the '453 Patent unpatentable.
`Moving on to slide 9, we show the references that were relied upon
`in each of the IPRs. And we can see the overlap here, especially with the
`'453 Patent to which the '567 Patent claims priority.
`Moving to slide 10, a person of ordinary skill in the art would know
`that the naturally present krill lipid components could be extracted, resulting
`in a krill oil with lipid content that could be varied in predictable ways.
`One example would be the discussion that we've had in many of
`these other cases about utilizing polar solvents to attract the polar lipids, the
`phospholipids, leaving behind the neutral lipids such as cholesterol. So all
`of that is very well known, and again doesn't materially alter the Board's
`analysis.
`Moving to slide 11, the Federal Circuit agreed with the Board, citing
`that the 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.
`Moving to slide 12, the Patent Owner's expert has agreed with this
`general notion.
`Moving to slide 13, the only issue raised by the Patent Owner in this
`particular case is whether Bottino II discloses a krill oil extract having less
`than 3 percent free fatty acids.
`Moving to slide 14, we show here Table 2 of Bottino II, which is
`what Petitioner's expert Dr. Tallon relies upon for the disclosure of the less
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`than 3 percent free fatty acid element. You can see we got a little carried
`away here with our highlighter.
`But if you look at the triglycerides, the diglycerides, and the complex
`lipids, they all add up to 98 percent. And so the remaining 2 percent where
`the free fatty acids would be located is in the portion labeled "unknown."
`These other elements here, the PC, the PE, lyso PC, those would all
`be part of the complex lipids. Those would all be phospholipids that would
`be part of the complex lipids. So you can see that the components do add
`up to 100 percent.
`Moving to slide 15, Dr. Tallon has testified that the fraction labeled
`as "unknown" would include any free fatty acids present for Station 11 in an
`amount of not more than 2 percent.
`Moving to slide 16, Bottino II. We highlight the fact that a person
`of ordinary skill in the art would have understood Bottino II as disclosing the
`less than 3 percent free fatty acid element.
`Bottino II disclosed it was identifying the free fatty acid content of
`krill. The entire article actually was focused on the analysis of the fatty
`acid content. Bottino II, Table 2 accounts for 100 percent of the E. superba
`lipids from Station 11. It also actually counts in Station 8 as well, for what
`it's worth.
`Dr. Tallon provided detailed testimony that any free fatty acids
`present in Station 11 extract is found in the fraction labeled "unknown," and
`that the free fatty acid content would be between 1.56 and 2.44, factoring in
`the standard deviation. There were two samples that were taken for the
`Station 11 results.
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`Consistent with Bottino II, Fricke reports that cooked krill had a free
`fatty acid content of 1 to 3 percent. And this is also consistent with another
`reference, Phleger, which disclosed a krill extract with 1.1 to 1.8 free fatty
`acids.
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`JUDGE TORNQUIST: Counsel, this is Judge Tornquist. Just a
`background question. Fricke obviously cooks the krill to get to those
`numbers.
`What does Bottino do? What was their actual process for catching
`the krill? Was it treated, was it frozen, or do we even know?
`MR. HARRINGTON: It was caught and then frozen immediately.
`MR. CHAKANSKY: It was extracted immediately.
`MR. HARRINGTON: I'm sorry. It was extracted immediately.
`It was not frozen.
`JUDGE TORNQUIST: Can you just show me in Bottino, I have it
`before me, where it says it was extracted immediately? Just so I have that.
`MR. HARRINGTON: Yes. On the first page, second column,
`Euphausia were collected in a midwater trawl. Once on board the ship, the
`samples were rapidly sorted by hand and extracted with the chloroform-
`methanol mixture of Folch, which is a well-known lipid extraction method.
`JUDGE TORNQUIST: Which page are you on?
`MR. HARRINGTON: It's on the bottom of page 1, second column,
`materials and methods.
`JUDGE TORNQUIST: Okay.
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`MR. HARRINGTON: Under the map there. Yes. It indicates
`that they were brought on board and rapidly, they use the word "rapidly,"
`sorted by hand and extracted with chloroform-methanol.
`JUDGE TORNQUIST: Okay. That's perfect. Thanks.
`MR. HARRINGTON: Okay. Moving to slide 17, Patent Owner's
`expert Dr. Jaczynski acknowledged it was reasonable to assume free fatty
`acids would be present in the krill oil extract in Bottino II. Yet Patent
`Owner continues to insist they are not in the unknown fraction, but provides
`no explanation as to where those free fatty acids might be.
`Moving to slide 18, Patent Owner advanced a number of meritless
`arguments regarding the results reported in Bottino II, Table 2.
`Moving to slide 19, Patent Owner argues that the free fatty acid
`content was simply not reported in Table 2, for example due to poor
`resolution. However, Dr. Tallon has testified that if the free fatty acids
`were not listed in Table 2 because of the poor resolution, the free fatty acids
`would have been present in an amount of less than 1 percent. There were a
`number of different components there that are all identified at a level of 1
`percent.
`Moving to slide 20, Patent Owner's argument that Bottino II did not
`go through the trouble to quantify the free fatty acids is unpersuasive.
`Again, the krill extracts of Bottino II were specifically being examined for
`the free fatty acid content. We see that in Tables 1, 3, and 4, where they
`provide a very detailed analysis of all of the various fatty acids that were
`identified.
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`Moving to slide 21, Patent Owner's argument that the Table 2 results
`are unreliable and would be disregarded by a person of ordinary skill in the
`art is frivolous. Patent Owner's expert in one of his own articles expressly
`relied on the results reported in Table 2, showing a krill extract having 58
`percent complex lipids.
`Moving to slide 22, Patent Owner's expert essentially points to two
`basic items in support of the argument that the results in Bottino II are
`unreliable. He first highlights the fact that the values for PC and PE are
`missing in Station 8, in the Station 8 data. And he also points to the
`general variability between the Station 8 and the Station 11 results.
`Moving to slide 23, notwithstanding Dr. Jaczynski's arguments about
`the reliability, he presented lipid data from Bottino II, Table 2 for Station 8
`and Station 11 in a 2000 scientific article that he co-authored.
`I'd also like to highlight the fact that Dr. Tallon in his declaration
`explained some of the variability that we see between Station 8 and Station
`11. He highlighted the fact that the lower level of triglycerides in Station 8
`and the higher level of diglycerides in Station 8 as compared to Station 11
`would be consistent with hydrolysis of the lipids, where the free fatty acids
`would be hydrolyzed off of the triglycerides, thereby forming a higher level
`of diglycerides and a significantly higher level of free fatty acids, which
`would be identified in the extract labeled as "unknown."
`Dr. Tallon also explained in his declaration that the PC, the PE, the
`lyso PC are not missing from Station 8. Those would be part of the
`complex lipids that were identified in Station 8. They just were not further
`analyzed the way they were in Station 11.
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`JUDGE MITCHELL: Mr. Harrington, let me ask you a question.
`Because I know certainly in Table 2, free fatty acids is not listed. You're
`saying, I guess it says the Rf, the retardation factor for that particular
`unknown quantity is between those of triglycerides and diglycerides. And I
`know Dr. Tallon has testified free fatty acids would be in there, in between
`those.
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`MR. HARRINGTON: Yes.
`JUDGE MITCHELL: So it would be part of that fraction.
`My question is, how sure do we have to be? I know you're
`providing other evidence that would shore up that conclusion. But do we
`have to find that that is necessarily so, that it has to be in there for us to rule
`in your favor? Could it be probable or does it have to necessarily be in
`there?
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`MR. HARRINGTON: No, it doesn't necessarily have to be there.
`I think Dr. Tallon testified that if, and I think we address this in a few slides
`later on, but if the amount of free fatty acids is so little that it does not
`appear due to poor resolution, therefore it would be present in an amount, if
`at all, less than 1 percent, which would still satisfy the claim element.
`JUDGE MITCHELL: But would one of skill in the art know that,
`that there would be free fatty acids but it would be so low it would be
`undetectable?
`MR. HARRINGTON: Yes.
`JUDGE MITCHELL: Okay.
`MR. HARRINGTON: Yes.
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`JUDGE MITCHELL: And one more quick question. Just in
`general, if I'm extracting the lipids from krill, would I normally see less than
`3 percent fatty acid? If lipase activity isn't happening, if I'm just extracting
`it, was that something that was known or not?
`MR. HARRINGTON: Yes.
`JUDGE MITCHELL: Okay.
`MR. HARRINGTON: Yes. And that's something else that we
`highlight later on. That was one of the points that we were going to make
`when referring to the Fricke reference. It not only explains that if the lipase
`activity is minimized, you get a free fatty acid level of 1 to 3 percent. It
`makes that connection between the lower level of hydrolysis and the lower
`level of free fatty acids.
`The "if" in your statement was important. If the hydrolysis is
`minimized and if it's handled in a proper way, it was known that the free
`fatty acid level would be low.
`JUDGE MITCHELL: Thank you.
`MR. HARRINGTON: Yes. Okay. Moving on to slide 24,
`Patent Owner's argument that the Table 2 results were unreliable, would be
`disregarded as frivolous. Again, we touched on this earlier in the '453
`Patent. There were two IPRs just because of the number of claims there.
`Petitioner again relied on the results in Bottino II, Table 2, and there
`were never any arguments that the results were unreliable. And in fact, the
`Board validated the Petitioner's reliance on Table 2, finding all of the claims
`of the related krill oil unpatentable.
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`Moving to slide 25, in the IPR challenging the '046 Patent, this was
`again one of the patents that was argued on January 12th recently. The
`Patent Owner acknowledged that the element of less than 3 percent free fatty
`acids would have been obvious.
`Again, this was in the context of them trying to antedate the Breivik
`II reference, and using Dr. Tallon's testimony as evidence of conception and
`reduction to practice. So in that context the Patent Owner acknowledged
`that the less than 3 percent free fatty acid element would be obvious.
`Moving to slide 26, Dr. Tallon further testified that a person of
`ordinary skill in the art could always reduce the free fatty acid content of
`krill oil using conventional means. This could, as I mentioned before,
`include the use of the polar solvents to extract only the phospholipids.
`Yamaguchi teaches the use of CO2 to extract the neutrals. That was well
`known. Blending is also a well-known method.
`Moving to slide 27, Dr. Tallon further testifies the removal of neutral
`lipids would reduce the level of free fatty acids. And again this would be
`using conventional means.
`Moving to slide 28, Bottino II's 2 ± 22 percent does disclose less
`than 3 percent free fatty acids. Table 2 of Bottino II for Station 11 reports
`the unknown fraction of 2 ± 22 percent. And Dr. Tallon has testified that
`the standard deviation reported by Bottino II would be understood to be a
`percentage variation.
`That is the value of 2 weight percent reported has a standard
`deviation which is 22 percent of the reported value, that is a standard
`deviation of plus or minus 0.44 weight percent which is obtained by
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`IPR2020-01534
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`multiplying 22 percent times 2. There's a typo there. It says 4, but it's 22
`percent of 2 equals the 0.44 percent. Therefore, the reported range for
`Bottino II for the free fatty acid content for Station 11 would be between
`1.56 and 2.44 weight percent.
`Dr. Jaczynski's interpretation of the standard deviation is a
`mathematical impossibility. He argues that the standard deviation of 22 is
`about 1,000 percent greater than the actual value that it represents. And
`this would create a negative value of 20 percent which, in this particular
`context, doesn't make any sense.
`Moving to slide 29, Fricke supports Bottino II's disclosure of less
`than 3 percent free fatty acids. In the petition it was noted Fricke, krill
`cooked on board immediately after hauling, showed a free fatty acid content
`which was much lower, ranging from 1 to 3 percent.
`In support of the petition Dr. Tallon testified: Fricke further reports
`that by cooking, i.e. heating, the krill to denature intrinsic enzymes in the
`krill, they observed a free fatty acid level of only 1 to 3 weight percent, a
`value that better reflects the krill oil in its natural state, which has not been
`decomposed, and that this was consistent with other reported literature.
`Bottino II's disclosure of the krill extract having less than 3 percent
`free fatty acids is also confirmed by the prior art. Dr. Tallon testifies: For
`example, Fricke states that the level of free fatty acids present in krill ranges
`from 1 to 3 percent of total lipids. And that is relied upon in the reply brief.
`Moving to slide 30, the Rf factor, which again is the rate at which
`these specific compounds move across the plate on the thin-layer
`chromatography, the Rf results of Freeman and West cannot be applied to
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`Bottino II. Dr. Tallon has testified that Bottino made significant
`modifications to the solvent system and the type of adsorbent, both of which
`would be key determinants in the thin-layer chromatography analysis.
`Moving to slide 31, Dr. Tallon testified that the Rf values observed in
`one analysis cannot be directly compared to Rf values used with different
`solvent systems, different adsorbent, different equipment, and different
`operating conditions.
`Moving to slide 32, this is a table from a reference, Zamora and
`Hidalgo.
`And if we go to slide 33, this is Dr. Tallon's summary of that table.
`All he is trying to show here is that it is not at all unusual for the Rf value of
`the free fatty acids to be between triglycerides and diglycerides as disclosed
`in Bottino II. It happens actually in the majority of cases. So this is not
`some sort of anomalous situation that Bottino II is describing in terms of Rf
`values of the free fatty acid.
`Moving to slide 34, Patent Owner mischaracterizes Dr. Tallon's
`deposition testimony in their brief. Dr. Tallon was not agreeing with the
`Patent Owner's position at all. He was just merely acknowledging in his
`deposition testimony what Freeman and West discloses.
`Moving to slide 35, the Patent Owner desperately wants the Board to
`ignore the disclosure in Fricke of the krill having 1 to 3 weight percent free
`fatty acid.
`Moving to slide 36, the fact that Fricke's disclosure of 1 to 3 percent
`free fatty acids supports the disclosure of Bottino II was mentioned in the
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`original petition. In the Patent Owner response, Patent Owner argued
`Bottino II does not support Petitioner's position.
`And Dr. Tallon then continued to assert that Fricke supports Bottino
`II's disclosure of less than 3 percent free fatty acid, yet the Patent Owner
`continues to argue the Board should ignore Fricke's free fatty acid
`disclosure. So the Petitioner's reliance on Fricke is proper rebuttal
`evidence.
`Moving to slide 37, we provide specific quotes in the petition and the
`reply brief where it is argued that Fricke's disclosure of 1 to 3 percent free
`fatty acid is consistent with Bottino's disclosure of krill extract having less
`than 3 percent.
`It's mentioned twice in the petition and again in Petitioner's reply
`brief. And it's entirely proper for the Board to consider this consistency, as
`well as Fricke's teaching that the free fatty acid content is related to the
`hydrolysis of the krill lipids, and would therefore be an important factor for
`a person of ordinary skill in the art to consider.
`With that, if I could I'd like to reserve the remainder of my time.
`Unless the Board has any further questions?
`JUDGE MITCHELL: I don't have any.
`MR. HARRINGTON: Okay.
`JUDGE MITCHELL: You have 21 minutes remaining.
`MR. HARRINGTON: Okay. Thank you. I'll just unshare.
`JUDGE MITCHELL: And Mr. Jones, when you are ready?
`MR. JONES: Yes. I'm going to go ahead and try to share my
`screen as well.
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`JUDGE MITCHELL: Okay.
`MR. JONES: Okay. Is that shared then?
`JUDGE MITCHELL: Yes. But maybe make it a little larger, if
`you could.
`MR. JONES: All right. Is that better?
`JUDGE MITCHELL: Yes.
`MR. JONES: Okay. Good. First off, I wanted to start with a
`couple of questions that were raised during Petitioner's argument.
`The first is on collateral estoppel. I don't think there's any dispute
`that the claim element of less than 3 percent free fatty acids has not been
`previously considered in a final written decision in any case. And as a
`result, collateral estoppel simply does not fly.
`In our Patent Owner response, pages 9 to 10, we go over the
`elements for collateral estoppel. And I'm going to note for the record that
`those are: that the prior action presents an identical issue, and the prior
`action actually litigated and it judged that issue. The judgement in that
`prior action necessarily required determination of the identical issue, and the
`prior action featured full representation of the estopped party.
`The cite for that is Stephen Slesigner, Inc. v. Disney Enterprises, 702
`F.3d 640, 644, and it's Fed Circuit 2012.
`I'm going to note that in all of its briefing, Petitioner has never
`addressed the elements for actually establishing collateral estoppel. So
`that's collateral estoppel.
`The next thing I wanted to address is a question came up as to
`whether or not it was agreed or known that the free fatty acid content of krill
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`or krill oil was generally less than 3 percent. And there, I want to
`specifically point out that in a number of the previous IPRs, and actually in
`this one as well, Petitioner has consistently relied on their Exhibit 1080 and
`its Exhibit 1080 in this case, which is a presentation that was prepared by an
`Aker Biomarine scientist, Neil Stone, that provides a pie chart I believe on
`page 10, page 0010 of Exhibit 1080.
`Dr. Tallon specifically cites to that reference in his declaration in this
`case. That's Exhibit 1006 at paragraphs 402 to 406. In that pie chart it
`indicates that the free fatty acid content of krill is 7.9 percent. And here's
`the quote from Dr. Tallon on that chart. It is "an accurate and clear
`disclosure of the natural components of krill as well as the testing of the
`extracted components."
`So given that admission, I don't think that there's any clear guidance
`in the prior art as to what the free fatty acid content of krill oil is. At least
`Dr. Tallon in his declaration is saying that 7.9 percent is an accurate and
`clear disclosure of the natural levels of free fatty acids. And of course,
`that's over 100 percent higher than what we're claiming in these claims.
`There's another point that I think was a little confusing where
`Petitioner was referring to Tables 1, 3, and 4, I believe, of Bottino II and
`talking about Bottino II is all about fatty acid content. And certainly,
`Bottino II goes into a great deal about fatty acid content, but those tables
`deal with fatty acid content of the triglyceride and phospholipid components
`of the krill oil and not the free fatty acid content. And the free fatty acid
`content and the content of the fatty acids that are attached to the triglycerides
`and phospholipids are two different things.
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