Trials@uspto.gov
`571-272-7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Paper 6
`Entered: May 20, 2021
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`
`
`
`
`
`
`
`
`
`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`JON B. TORNQUIST, Administrative Patent Judges.
`MITCHELL, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Paper 6
`Entered: May 20, 2021
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`RIMFROST AS,
`Petitioner,
`v.
`AKER BIOMARINE ANTARCTIC AS,
`Patent Owner.
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`
`
`
`
`
`
`
`
`
`Before ERICA A. FRANKLIN, SUSAN L. C. MITCHELL, and
`JON B. TORNQUIST, Administrative Patent Judges.
`MITCHELL, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`Rimfrost AS (“Petitioner”) filed a Petition (Paper 2, “Pet.”) requesting
`an inter partes review of claims 1–20 of U.S. Patent No. 10,010,567 B2
`(Ex. 1001, “the ’567 patent”). Aker Biomarine Antarctic AS (“Patent
`Owner”) did not file a Preliminary Response to the Petition.
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314 (2018); 37 C.F.R. § 42.4(a) (2020). The standard
`for institution is set forth in 35 U.S.C. § 314(a), which provides that an inter
`partes review may not be instituted “unless the Director determines . . . there
`is a reasonable likelihood that the petitioner would prevail with respect to at
`least 1 of the claims challenged in the petition.”
`After considering Petitioner’s arguments and evidence, and for the
`reasons set forth below, we determine that Petitioner has demonstrated a
`reasonable likelihood of prevailing with respect to at least one claim
`challenged in the Petition. Accordingly, we institute an inter partes review
`of all claims and grounds set forth in the Petition.
`
`B. Real Parties in Interest
`Petitioner identifies itself, Olympic Holding AS, Emerald Fisheries
`AS, Rimfrost USA, LLC, Rimfrost New Zealand Limited, and Bioriginal
`Food and Science Corp. as real parties in interest. Pet. 3. Based on various
`ownership interests, and out of “an abundance of caution,” Petitioner also
`identifies Stig Remøy, SRR Invest AS, Rimfrost Holdings AS, and Omega
`Protein Corporation as real parties in interest. Id.
`Patent Owner identifies itself as a real party in interest in this
`proceeding. Paper 4, 1.
`
`2
`
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`IPR2020-01534
`Patent 10,010,567 B2
`C. Related Proceedings
`Petitioner and Patent Owner identify several related matters.
`Specifically, the parties identify Aker Biomarine Antarctic AS v. Olympic
`Holding AS, Case No. 1:16-CV-00035-LPS-CJB (D. Del.), which involved
`U.S. Patent Nos. 9,028,877 B2 (“the ’877 patent”) and 9,078,905 B2 (“the
`’905 patent”). Pet. 3; Paper 4, 1. The parties further identify Investigation
`No. 337-TA-1019 by the United States International Trade Commission,
`which involved the ’877 and ’905 patents, as well as U.S. Patent No.
`9,320,765 (“the ’765 patent”), U.S. Patent No. 9,375,453 (“the ’453 patent”),
`and U.S. Patent No. 9,072,752 (“the ’752 patent”). Pet. 3–4; Paper 4, 1–2.
`The parties also identify the following Board proceedings as related
`matters:
`
` IPR2017-00745 and IPR2017-00747, which requested review
`of the ’905 patent (all challenged claims found unpatentable
`(Ex. 1103), decision affirmed on appeal (Ex. 1154));
`
` IPR2017-00746 and IPR2017-00748, which requested review
`of the ’877 patent (all challenged claims found unpatentable
`(Ex. 1104), decision affirmed on appeal (Ex. 1154));
`
` IPR2018-00295, which requested review of the ’765 patent
`(all challenged claims found unpatentable (Ex. 1129));
` PGR2018-00033, which requested review of U.S. Patent No.
`9,644,170 (institution denied because the challenged patent
`was not eligible for post grant review);
` IPR2018-01178 and IPR2018-01179, which requested review
`of the ’453 patent (all challenged claims found unpatentable
`(Exs. 1157, 1158));
`
`3
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
` IPR2018-01730, which requested review of the ’752 patent
`(all challenged claims found unpatentable (Ex. 1159)); and
` IPR2020-01532 and IPR2020-01533, which requested review
`of U.S. Patent Nos. 9,644,169 B2 and 9,816,046 B2,
`respectively, and which have been instituted.
`Pet. 4–7; Paper 4, 2–4.
`
`D. The ’567 Patent (Ex. 1001)
`The ’567 patent discloses extracts from Antarctic krill that include
`bioactive fatty acids. Ex. 1001, 1:24–25. The ’567 patent explains that
`krill oil compositions, including compositions having up to 60% w/w
`phospholipid content and as much as 35% w/w EPA/DHA1 content, were
`known in the art. Id. at 1:59–62. The ’567 patent further explains that
`“[k]rill oil compositions have been described as being effective for
`decreasing cholesterol, inhibiting platelet adhesion, inhibiting artery
`plaque formation, preventing hypertension, controlling arthritis symptoms,
`preventing skin cancer, enhancing transdermal transport, reducing the
`symptoms of premenstrual symptoms or controlling blood glucose levels
`in a patient.” Id. at 1:51–57.
`According to the ’567 patent, frozen krill are typically transported
`from the Southern Ocean to a processing site, but lipases and
`phospholipases within the krill can result in the decomposition of
`glycerides and phospholipids during transport. Id. at 2:8–18, 9:64–10:13.
`To avoid the problem of enzymatic decomposition of krill products, the
`’567 patent describes a method of thermally denaturing the lipases and
`
`
`1 According to the ’567 patent, “EPA” is 5,8,11,14,17-eicosapentaenoic acid
`and “DHA” is 4,7,10,13,16,19-docosahexanoic acid. Ex. 1001, 9:15–19.
`
`4
`
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`IPR2020-01534
`Patent 10,010,567 B2
`phospholipases in fresh-caught krill prior to storage and processing. Id. at
`9:64–10:13, 10:46–55. The ’567 patent reports that these denaturing steps
`allow for the storage of krill material “for from about 1, 2, 3, 4, 5, 6, 8, 9,
`10, 11, or 12 months to about 24 to 36 months prior to processing.” Id. at
`10:39–45.
`After denaturation, the krill can be subject to extraction processes
`either on board the ship or at a remote location. Id. at 10:39–41. In one
`embodiment, krill oils are extracted from krill meal in two stages. Id. at
`9:57–60. In the first stage, a neutral fraction is extracted using either neat
`supercritical CO2 or such CO2 in combination with 5% ethanol. Id. In the
`second stage, polar lipids (phospholipids) are extracted by adding at least
`20% ethanol to the supercritical CO2 extraction medium. Id. at 9:61–63.
`The ’567 patent reports that “[k]rill oil extracted from denatured
`krill meal by supercritical fluid extraction even 19 months after the
`production of the meal contained virtually no decomposed phospholipids.”
`Id. at 11:3–6. The ’567 patent further reports that the novel krill oil
`compositions of the invention are “characterized by containing high levels
`of astaxanthin, phospholipids, includ[ing] enriched quantities of ether
`phospholipids, and omega-3 fatty acids.” Id. at 9:49–52.
`
`E. Challenged Claims
`Petitioner challenges claims 1 through 20 of the ’567 patent. Of those
`claims, claims 1 and 15 are independent. Both independent claims 1 and 15
`are directed to encapsulated krill oil that is suitable for oral administration.
`See Ex. 1001, 35:44–48, 36:38–44. Claims 2 through 14 depend directly or
`indirectly from claim 1, and claims 16–20 depend directly from claim 15.
`
`5
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`
`IPR2020-01534
`Patent 10,010,567 B2
`Claim 1 is illustrative and recites:
`1.
`Encapsulated krill oil comprising a capsule
`containing Euphausia superba krill oil suitable for oral
`administration, said krill oil comprising greater than 30%
`phosphatidylcholine w/w of said krill oil, less than 3% free fatty
`acids w/w of said krill oil and astaxanthin esters.
`Id. at 35:44–48.
`F. Prior Art and Asserted Grounds of Unpatentability
`Petitioner argues that claims 1 through 20 of the ’567 patent are
`unpatentable based on the following four grounds:
`Claims Challenged
`35 U.S.C. §
`1–5, 7–11, 15–17
`103(a)2
`
`References
`Sampalis I,3 Bottino II,4
`Randolph5
`Sampalis I, Bottino II,
`Randolph, Breivik II6
`Sampalis, I, Bottino II,
`Randolph, Bottino I7
`
`6, 14, 20
`
`12, 18
`
`103(a)
`
`103(a)
`
`
`2 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective March 16,
`2013. Because the ’567 patent issued from a series of continuation
`applications the first of which was filed prior to this date, we apply the pre-
`AIA version of 35 U.S.C. § 103.
`3 Fotini Sampalis et al., “Evaluation of the Effects of Neptune Krill
`Oil™ on the Management of Premenstrual Syndrome and Dysmenorrhea,”
`8 ALTERN. MED. REV. 171-179 (2003) (Ex. 1012, “Sampalis I”).
`4 Nestor R. Bottino, “Lipid Composition of Two Species of Antarctic Krill:
`Euphausia Superba and E. Crystallorophias,” 50B COMP.
`BIOCHEM. PHYSIOL. 479–484 (1975) (Ex. 1038, “Bottino II”).
`5 Russell K. Randolph and Haeri Roh-Schmidt, US 2005/0058728 A1,
`published Mar. 17, 2005 (Ex. 1011, “Randolph”).
`6 Harald Breivik, WO 2008/060163 A1, published May 22, 2008 (Ex. 1037,
`“Breivik II”).
`7 N. R. 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, “Bottino I”).
`
`6
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`Claims Challenged
`
`35 U.S.C. §
`
`References
`Sampalis I, Bottino II,
`Randolph, Fricke,8 Yamaguchi,9
`Hardardottir10
`Petitioner submits the Declaration of Stephen J. Tallon, Ph.D., in
`
`support of its Petition. See Ex. 1006 (“the Tallon Declaration”).
`
`13, 19
`
`103(a)
`
`II. ANALYSIS
`A. Claim Construction
`In this proceeding, the claims of the ’567 patent are construed “using
`the same claim construction standard that would be used to construe the
`claim in a civil action under 35 U.S.C. [§] 282(b).” 37 C.F.R. § 42.100(b).
`Under that standard, the words of a claim are generally given their
`“ordinary and customary meaning,” which is the meaning the term would
`have had to a person of ordinary skill at the time of the invention, in the
`context of the entire patent including the specification. Phillips v. AWH
`Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).
`Petitioner provides proposed claim constructions for the terms “krill
`oil,” “astaxanthin esters,” and “phytonutrient.” Pet. 39–42. Upon review of
`the arguments and evidence presented at this stage of the proceeding, we
`determine that construction of the identified claim terms is not necessary for
`
`
`8 H. Fricke et al., “Lipid, Sterol and Fatty Acid Composition of Antarctic
`Krill (Euphausia superba Dana),” 19 LIPIDS 821-827 (1984) (Ex. 1010,
`“Fricke”).
`9 Katsumi Yamaguchi, et al., “Supercritical carbon dioxide extraction of oils
`from Antarctic krill,” 34 J. AGRIC. FOOD CHEM. 904–907 (1986) (Ex. 1162,
`“Yamaguchi”).
`10 Ingibjorg Hardardottir and John E. Kinsella, “Extraction of Lipid and
`Cholesterol from Fish Muscle with Supercri ical Fluids,” 53 J. OF FOOD
`SCIENCE 1656-1658 (1988) (Ex. 1164, “Hardardottir”).
`
`7
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`purposes of this Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999) (only terms that are in controversy need
`to be construed, and only to the extent necessary to resolve the controversy).
`
`B. Claims 1–20
`Petitioner contends that claims 1–20 would have been obvious over
`various combinations of the disclosures of Sampalis I, Bottino I, Bottino II,
`Randolph, Breivik II, Fricke, Yamaguchi, and Hardardottir. Pet. 45–83.
`
`Sampalis I (Ex. 1012)
`i.
`Sampalis I describes a clinical trial “[t]o evaluate the effectiveness of
`Neptune Krill OilTM (NKOTM) for the management of premenstrual
`syndrome and dysmenorrhea.” Ex. 1012, 1. Sampalis I explains that
`Neptune Krill Oil is “extracted from Antarctic krill also known as Euphausia
`superba. Euphausia superba, a zooplankton crustacean, is rich in
`phospholipids and triglycerides carrying long-chain omega-3
`polyunsaturated fatty acids, mainly EPA and DHA, and in various potent
`antioxidants including vitamins A and E, astaxanthin, and a novel
`flavonoid.” Id. at 4.
`Sampalis I discloses that each patient in the clinical trial was “asked to
`take two 1-gram soft gels of either NKO or omega-3 18:12 fish oil (fish oil
`containing 18% EPA and 12% DHA) once daily with meals during the first
`month of the trial.” Id. Sampalis I reports that “[t]he final results of the
`present study suggest within a high level of confidence that Neptune Krill
`Oil can significantly reduce the physical and emotional symptoms related to
`premenstrual syndrome, and is significantly more effective for the
`management of dysmenorrhea and emotional premenstrual symptoms than
`fish oil.” Id. at 8.
`
`8
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`ii.
`Bottino II (Ex. 1038)
`Bottino II characterizes the lipids of two Antarctic euphausiids,
`Euphausia superba and Euphasia crystallorophias. Ex. 1038, Abstr.
`Bottino II explains, “when one refers to Antarctic krill, one generally means
`Euphausia superba, which is the most abundant and far better known
`species of krill in the Antarctic Oceans.” Id. at 479.
`Bottino II explains that the euphausiids were collected and, once on
`board the ship, the samples were rapidly sorted by hand and extracted with a
`“chloroform:[methanol] (2:1, v/v) mixture.” Id. Fatty acid compositions
`were determined by gas-liquid chromatography. Id. at 480. Table 1 of
`Bottino II is reproduced below.
`
`
`
`9
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`Ex. 1038, Table 1. Table 1 discloses the fatty acid content of E. superba and
`E. crystallorophias obtained from different locations (i.e., stations) as a
`weight percent of total fatty acids. Id. at 480.
`Table 2 of Bottino II is reproduced below.
`
`
`
`Ex. 1038, Table 2. Table 2 reports the identity and amount of each
`lipid present in the E. superba and E. crystallorophias samples analyzed as a
`weight percent of total lipids. Id. at 480–481.
`
`Randolph (Ex. 1011)
`iii.
`Randolph discloses compositions for modulating cytokines to regulate
`an inflammatory or immunomodulatory response including rosehips and
`krill oil. Ex. 1011 ¶ 8. With regard to rosehips, Randolph discloses that the
`composition may include one or more rosehip ingredients, such as “dried
`rosehips, rosehip oil, and rosehip extracts.” Id. ¶ 24. Concerning krill oil,
`Randolph discloses that
`
`10
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`[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
`amount of krill oil,” but will typically contain “between about 300 mg and
`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
`ingredients can be processed and included in capsules, tablets, gel tabs,
`lozenges, strips, granules, powders, concentrates, solutions, lotions, creams
`or suspensions.” Ex. 1011 ¶ 46. Randolph further discloses that “[a] soft
`gel capsule of the composition can be manufactured to include krill oil. This
`capsule can be manufactured using conventional capsule manufacturing
`techniques. The amount of krill oil in each capsule is about 300 mg.” Id.
`¶ 52.
`
`Analysis: Claims 1 and 15
`iv.
`Claim 1 requires encapsulated Euphausia superba krill oil suitable for
`oral administration that comprises: 1) Greater than 30%
`phosphatidylcholine w/w of said krill oil; 2) less than 3% free fatty acid w/w
`of said krill oil; and 3) astaxanthin esters. Ex. 1001, 35:44–48. Claim 15
`has the same requirements as claim 1 and adds the following three
`requirements: 1) a soft gel capsule containing the krill oil; 2) less than about
`3% lysophosphatidylcholine w/w of said krill oil; and 3) at least 100 mg/kg
`astaxanthin esters. Id. at 36:38–44.
`
`11
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`Petitioner relies on both Sampalis I and Randolph as teaching
`encapsulated krill oil compositions for oral administration, and on
`Sampalis I as specifically teaching such a composition from Euphausia
`superba. Pet. 45 (citing Ex. 1012, 4; Ex. 1011 ¶ 52). For the required
`components of the composition of the krill oil, Petitioner relies on the
`known facts that both phosphatidylcholine and astaxanthin esters naturally
`occur in krill, that both may be readily extracted using known techniques
`and solvent systems, and that it was desirable to minimize the amount of
`free fatty acid by extracting oil from denatured krill. Id. at 46 (citing
`Ex. 1006 ¶¶ 55–56, 63, 79, 84, 225, 235, 260, 284, 339–340, 364).
`Petitioner also relies on Table 2 of Bottino II as disclosing an Euphausia
`superba extract with 48% phosphatidylcholine and at most 2% free fatty
`acids. Id. (citing Ex. 1038, 3; Ex. 1006 ¶ 174). Finally, Petitioner relies on
`teachings in Sampalis I and Randolph that krill oil, and specifically
`Euphausia superba, contain astaxanthin. Id. at 47 (citing Ex. 1012, 4;
`Ex. 1011 ¶¶ 40, 44; Ex. 1006 ¶¶ 124, 128–132, 136). Petitioner concludes
`that claim 1 “would have been obvious in view of the disclosures and
`teachings of Sampalis I, Bottino II, and Randolph.” Id.
`Petitioner notes that for independent claim 15, “[t]he only difference
`between independent claims 1 and 15 is that the later expressly recites the
`encapsulated krill oil is in a soft gel capsule, and the claimed krill oil
`composition has less than about 3% lysophosphatidylcholine and at least
`100 mg/kg astaxanthin esters.” Id. at 52. For these additional
`requirements, Petitioner relies on the teaching of Sampalis I and Randolph
`describing encapsulated krill oil compositions in a soft gel dosage form.
`Id. at 53 (citing Ex. 1012, 4; Ex. 1011 ¶ 52).
`
`12
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`IPR2020-01534
`Patent 10,010,567 B2
`Petitioner contends that one of ordinary skill in the art would have
`combined the various disclosures of Sampalis I, Bottino II, and Randolph
`to arrive at the subject matter of the challenged claims because each
`reference is in the same field of endeavor, and one of ordinary skill in the
`art “developing an encapsulated krill oil composition or supplement as
`disclosed in Sampalis I would have been motivated to look to other
`references such as Bottino II and Randolph to ascertain other beneficial
`components that could be extracted from krill using traditional extraction
`techniques and their respective amounts.” Pet. 55–56; see also id. 56–59
`(detailing knowledge of one of skill in the art about beneficial components
`naturally present in krill and how to extract those components).
`As noted above, Patent Owner did not file a Preliminary Response
`challenging Petitioner’s arguments.
`Upon review of Petitioner’s arguments and supporting evidence, we
`determine that, on this record, Petitioner sufficiently demonstrates that
`Sampalis I, Bottino II, and Randolph teach or suggest every limitation of
`claims 1 and 15 of the ’567 patent. Petitioner also sufficiently explains for
`purposes of institution why one of ordinary skill in the art would have
`combined these disclosures to arrive at the subject matter of claims 1 and 15.
`Accordingly, on this record, Petitioner demonstrates a reasonable
`likelihood that claims 1 and 15 would have been obvious over Sampalis I,
`Bottino II, and Randolph.
`
`Analysis: Claims 2–14 and 16–20
`v.
`With respect to the challenged dependent claims 2–14 and 16–20,
`Petitioner identifies where: 1) Bottino II discloses the lipid amounts in
`Euphausia superba extract as 48% phosphatidylcholine, which is greater
`
`13
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`IPR2020-01534
`Patent 10,010,567 B2
`than 40% phosphatidylcholine as required by claims 2 and 16 and also
`greater than 45% phosphatidylcholine as required by claim 3, Pet. 47–48
`(citing Ex. 1038, 3; Ex. 1006 ¶¶ 82, 174, 453, 457–464, 473–480);
`2) Randolph teaches krill oil with various phytonutrients as required by
`claim 4, Pet. 48 (citing Ex. 1011 ¶¶ 8–9, 41; Ex. 1006 ¶¶ 68, 76, 121–122,
`125); 3) Bottino II discloses krill oil with 20–50% triglycerides as required
`by claim 5, Pet. 48–49 (citing Ex. 1038, 3; Ex. 1006 ¶¶ 82, 457–464, 471–
`480); 4) Breivik II discloses a krill oil composition with greater than 25%
`omega-3 fatty acids and a composition having greater than 38% omega-3
`fatty acids, which is at least the 20% omega-3 fatty acids required by claim 6
`and at least the 36% omega-3 fatty acids required by claims 14 and 20,
`Pet. 59–60 (citing Ex. 1006 ¶¶ 172, 181–195, 246–247, 249); 5) Sampalis I
`and Randolph disclose a soft gel capsule as required by claim 7, Pet. 49
`(citing Ex. 1012, 4; Ex. 1011 ¶ 52; Ex. 1006 ¶¶ 82, 454, 457–464, 473–480);
`6) Bottino II describes a Euphausia superba extract with 1%
`lysophosphatidylcholine, which is less than the 3% and 2%
`lysophosphatidylcholine required by claims 8 and 9, respectively, Pet. 50
`(citing Ex. 1038, 3; Ex. 1006 ¶¶ 84, 455, 457–465, 473–480); 7) Randolph
`teaches “a typical krill oil composition containing 158 mg/kg esterified
`astaxanthin (166 mg/kg x 0.95),” which is greater than 100 mg/kg
`astaxanthin esters as required by claim 10 or 200 mg/kg astaxanthin esters as
`required by claims 11 and 17, Pet. 50–51 (citing Ex. 1011 ¶¶ 40, 44;
`Ex. 1006 ¶¶ 82, 132, 456–464, 473–480); 8) Bottino I “teaches an
`encapsulated krill oil that comprises less than about 0.45 w/w arachidonic
`acid” as required by claims 12 and 18, Pet. 62–64 (citing Ex. 1006 ¶¶ 168,
`501–516); and 9) Yamaguchi and Hardardottir each teach using supercritical
`CO2 extraction to achieve the levels of total cholesterol required by claims
`
`14
`
`
`
`IPR2020-01534
`Patent 10,010,567 B2
`13 and 19, which a person of skill in the art would apply to Euphausia
`superba as described in Fricke, Pet. 64–72 (citing Ex. 1166, 40, 42; Ex. 1006
`¶¶ 64–65, 289–291, 294, 299, 303–304, 311).
`Upon review of Petitioner’s arguments and evidence, and based on the
`current record, we determine that Petitioner has demonstrated a reasonable
`likelihood of prevailing with respect to claims 2–14 and 16–20.
`
`III. CONCLUSION
`After considering Petitioner’s arguments and supporting evidence we
`determine that, on the current record, the information presented shows a
`reasonable likelihood that Petitioner would prevail in establishing that
`claims 1–20 of the ’567 patent are unpatentable on the grounds asserted in
`the Petition.
`
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
`review of claims 1–20 of the ’567 patent is hereby instituted on the grounds
`set forth in the Petition; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`commences on the entry date of this decision.
`
`15
`
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`
`IPR2020-01534
`Patent 10,010,567 B2
`FOR PETITIONER:
`
`James F. Harrington
`Michael I. Chakansky
`John T. Gallagher
`HOFFMAN & BARON, LLP
`jfhdocket@hbiplaw.com
`micdocket@hbiplaw.com
`jtgdocket@hbiplaw.com
`
`
`
`FOR PATENT OWNER:
`
`J. Mitchell Jones, Ph.D.
`David A. Casimir, Ph.D.
`CASIMIR JONES S.C.
`jmjones@casimirjones.com
`dacasimir@casimirjones.com
`
`16
`
`
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