PTAB

IPR2018-00295

Rimfrost As v. Aker Biomarine Antarctic As

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1. Case Identification

2. Patent Overview

  • Title: Bioeffective Krill Oil Compositions
  • Brief Description: The ’765 patent relates to krill oil compositions for oral administration, characterized by specific concentrations of ether phospholipids, non-ether phospholipids, triglycerides, and astaxanthin esters. The compositions are intended to provide various health benefits.

3. Grounds for Unpatentability

Ground 1: Obviousness over Sampalis I, Catchpole, Fricke, and Breivik II - Claims 1-4, 7, 9-11, 14, 18-20, 25-28, 31, 33-35, 38, 42-44, and 47 are obvious over Sampalis I, Catchpole, Fricke, and Breivik II.

  • Prior Art Relied Upon: Sampalis I (a 2003 journal article), Catchpole (WO 2007/123424), Fricke (a 1984 journal article), and Breivik II (WO 2008/060163).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner argued that the combination of these references rendered the key limitations of independent claims 1 and 25 obvious. Sampalis I taught administering encapsulated Euphausia superba krill oil for health benefits. Catchpole disclosed a krill oil extract containing 4.8% ether phospholipids (meeting the "greater than about 3%" limitation) and 45.1% total phospholipids (meeting the claimed ranges). Fricke analyzed Antarctic krill and found triglyceride levels of 33.3% and 40.4%, squarely within the claimed 20-50% range. Finally, Breivik II disclosed a conventional krill oil product containing ≥1000 mg/kg of esterified astaxanthin, satisfying the "greater than about 100 mg/kg" limitation. Dependent claims reciting higher concentrations of ether phospholipids or astaxanthin esters were also allegedly disclosed or made obvious by Catchpole and Breivik II, respectively.
    • Motivation to Combine: A Person of Ordinary Skill in the Art (POSITA) seeking to develop an encapsulated krill oil supplement, as taught by Sampalis I, would combine the compositions and extraction insights from the other references. The components recited in the claims were known to be beneficial and readily obtainable using standard methods. A POSITA would look to references like Catchpole, Fricke, and Breivik II to ascertain the natural components of krill oil and methods for manufacturing a supplement with desirable health properties.
    • Expectation of Success: A POSITA would have a reasonable expectation of success because the combination involved applying known extraction techniques to krill to obtain a composition with a well-understood and predictable profile of beneficial lipids and antioxidants for oral administration.

Ground 2: Obviousness over Sampalis I, Catchpole, Fricke, Breivik II, and Bottino I - Claims 5-6, 12-13, 15-16, 21-23, 29-30, 36-37, 39-40, and 45-46 are obvious over the combination of references from Ground 1 in view of Bottino I.

  • Prior Art Relied Upon: Sampalis I (a 2003 journal article), Catchpole (WO 2007/123424), Fricke (a 1984 journal article), Breivik II (WO 2008/060163), and Bottino I (a 1974 journal article).
  • Core Argument for this Ground:
    • Prior Art Mapping: This ground incorporated the arguments from Ground 1 and added Bottino I to address the limitation, present in this set of claims, requiring "from about 20% to 35% omega-3 fatty acids as a percentage of total fatty acids." Bottino I analyzed the fatty acid content of Euphausia superba and reported that three different samples contained 30.5%, 26.8%, and 25.0% omega-3 fatty acids, all within the claimed range. Further dependent claims, which require that 70-95% of these omega-3 fatty acids be attached to phospholipids, were argued to be obvious over the primary combination in view of Fricke, which provided data allowing for a calculation showing 74.81% and 82.03% of omega-3s were attached to phospholipids in its samples.
    • Motivation to Combine: A POSITA developing the krill oil supplement from Ground 1 would be motivated to include the omega-3 fatty acids taught by Bottino I. The health benefits of omega-3s were well-known, and Bottino I demonstrated that these fatty acids were naturally present in krill oil at the claimed levels when using conventional extraction techniques.
    • Expectation of Success: Combining the teachings was straightforward, as Bottino I simply confirmed the inherent composition of a standard krill oil extract, providing a POSITA with a predictable compositional target.

Ground 3: Obviousness over Sampalis I, Catchpole, Fricke, Breivik II, and Randolph - Claims 8, 17, 24, 32, 41, and 48 are obvious over the combination of references from Ground 1 in view of Randolph.

  • Prior Art Relied Upon: Sampalis I (a 2003 journal article), Catchpole (WO 2007/123424), Fricke (a 1984 journal article), Breivik II (WO 2008/060163), and Randolph (Application # 2005/0058728).
  • Core Argument for this Ground:
    • Prior Art Mapping: This ground incorporated the arguments from Ground 1 and added Randolph to address the limitation, present in this set of claims, requiring the inclusion of a "plant phytonutrient." Randolph explicitly taught compositions for regulating inflammatory responses that comprised both krill oil and phytonutrients. Specifically, Randolph disclosed combining krill oil with rosehips and resveratrol (from grape skin extract), which are both identified as phytonutrients in the ’765 patent itself.
    • Motivation to Combine: A POSITA would combine Randolph's teachings with the base krill oil composition from Ground 1 to enhance the health benefits of the final product. Randolph taught that combining krill oil and phytonutrients was beneficial for treating inflammatory conditions, providing a clear reason to add a phytonutrient to an encapsulated krill oil supplement.
    • Expectation of Success: A POSITA would expect success in adding known phytonutrients to a krill oil capsule, as this was a simple formulation step taught by Randolph to create a supplement with complementary health benefits.

4. Key Claim Construction Positions

  • "krill oil": Petitioner argued for a broad construction of "lipids extracted from krill." This interpretation was based on the specification's language equating krill oil with lipid extracts and describing compositions as blends of lipid fractions obtained from krill.
  • "greater than about 5% w/w ether phospholipids": Petitioner contended that in the context of the patent's disclosure, the term "about" should be interpreted based on rounding. Because the claims provided only whole numbers, "approximately 5%" would include values that round to 5%, such as 4.5%. Therefore, Petitioner argued this limitation should be construed as "greater than 4.5%," which would encompass the 4.8% disclosure in the Catchpole reference.

5. Relief Requested

  • Petitioner requests institution of an inter partes review (IPR) and cancellation of claims 1-48 of Patent 9,320,765 as unpatentable.