November 30, 2009

Method for Enhancing Muscle Performance or Recovery Anticipated by Flex Magazine Advertisements

Iovate Health Sciences, Inc., v. Bio-Engineered Supplements & Nutrition, Inc., No. 2009-1018 (Fed. Cir. Nov. 19, 2009)

Federal Circuit affirmed grant of summary judgment by the Eastern District of Texas holding that the patent-in-suit was invalid as anticipated under 35 U.S.C. § 102(b) for being disclosed in a printed publication before the critical date.  

The patent-in-suit claimed the following: a method for enhancing muscle performance or recovery from fatigue wherein said method comprises administering a composition comprising a ketoacid and an amino acid wherein said amino acid is cationic or dibasic. 

The District Court granted summary judgment of invalidity under Section 102(b) based on advertisements in Flex Magazine prior to the critical date.  Each ad included a list of ingredients and directions for administrating the supplement to humans.  One of the ads described how to make the product, listed a selling price, stated that the product was available for purchase, and instructed the user on the amount to take. 

On appeal, the parties did not dispute that the ads disclosed the claimed composition.  To avoid anticipation, Plaintiff argued that the ads’ disclosure of “promot[ing] muscle synthesis and growth” is not synonymous with “enhancing muscle performance,” as claimed; and that the ads’ general concepts of muscle “recuperation” and “post-workout recovery” do not address the claim term enhancing “recovery from fatigue,” as construed to mean “increasing muscle performance after muscle performance has been decreased by exercise,” but rather recovery from one workout to the next.  The Federal Circuit held that “[s]uch an argument borders on the frivolous.”  The Federal Circuit found that the ads were enabling because “all that one of ordinary skill in the art would need to do to practice an embodiment of the invention is to mix together the known ingredients listed in the ad and administer the composition as taught by the ad.”