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Antarctic v. Rimfrost

United States Court of Appeals for the Federal Circuit

October 3, 2019, Decided

2019-1078, 2019-1097

Opinion

 [*252]  Lourie, Circuit Judge.

Aker Biomarine Antarctic AS ("Aker") appeals from two final written decisions of the U.S. Patent and Trademark Office Patent Trial and Appeal Board ("the Board") in two inter partes review proceedings holding claims 1-19 of U.S. Patent 9,028,877 ("the '877 patent) and claims 1-20 of U.S. Patent 9,078,905 ("the '905 patent") unpatentable as obvious. See Rimfrost AS v. Aker Biomarine Antarctic AS, No. IPR2017-00746, 2018 WL 3857128 (P.T.A.B. Aug. 10, 2018) ("877 Decision"); Rimfrost AS v. Aker Biomarine Antarctic AS, No. IPR2017-00745, 2018 WL 3857126 (P.T.A.B. Aug. 10, 2018) ("905 Decision"). For the reasons detailed below, we affirm.

Background

The '877 and '905 patents share a written description and concern bioeffective krill oil. According to the description, in the prior art, Antarctic krill was [**2]  challenging to use to produce krill oil because lipases would degrade the oil during storage and transport. See '877 patent col. 2 ll. 3-6. To address this problem, the patents propose treating the krill to denature lipases and phospholipases, which can reduce enzymatic decomposition of glycerides and phospholipids. See id. col. 9 ll. 44-51. The '877 patent claims a method of producing krill oil and encapsulating it, while the '905 patent claims encapsulated krill oil of various compositions. According to the specification, krill oil can be useful for "decreasing cholesterol, inhibiting platelet adhesion, inhibiting artery plaque formation, preventing hypertension, controlling arthritis symptoms, preventing skin cancer, enhancing transdermal transport, reducing . . . premenstrual symptoms or controlling blood glucose levels in a patient." Id. col. 1 ll. 46-52.

Claim 1 of the '877 patent is exemplary of that patent, and it recites "[a] method of production of krill oil comprising: a) providing krill; b) treating said krill to denature lipases and phospholipases in said krill to provide a denatured krill product; and c) extracting oil from said denatured krill product with a polar solvent. . . ." Id. col. 34 ll. 59-64. Steps a) [**3]  and b) "are performed on a ship." Id. col. 35 l. 2. The claim further requires that the extracted krill oil be composed of "from about 3% to about 10% w/w ether phospholipids; from about 27% to 50% w/w non-ether phospholipids so that the amount of total phospholipids in said krill oil is from about 30% to 60% w/w; and from about 20% to 50% w/w triglycerides." Id. col. 34 l. 64-col. 35 l. 2. Of particular relevance here is the composition of the krill oil.

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786 Fed. Appx. 251 *; 2019 U.S. App. LEXIS 29656 **; 2019 U.S.P.Q.2D (BNA) 377600; 2019 WL 4879361

AKER BIOMARINE ANTARCTIC AS, Appellant v. RIMFROST AS, Appellee

Notice: THIS DECISION WAS ISSUED AS UNPUBLISHED OR NONPRECEDENTIAL AND MAY NOT BE CITED AS PRECEDENT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2017-00746. Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2017-00745.

Disposition: AFFIRMED.

CORE TERMS

krill, oil, phospholipids, ether, combine, skill, patent, prior art, references, extracted, substantial evidence, encapsulated, composition, denature

Patent Law, Jurisdiction & Review, Standards of Review, De Novo Review, Substantial Evidence, Nonobviousness, Elements & Tests, Business & Corporate Compliance, US Patent & Trademark Office Proceedings, Patent Law, US Patent & Trademark Office Proceedings