BSN 1, Muscletech 0

Posted By elissa on Dec 3, 2009 | 1 comment

LOL – Muscletech just bit the dust in a patent-infringement case against BSN – thanks to a supplement ad in Flex Magazine – from June, 1996.  According to Judith Grubner of Nutrisuplaw.com:

The U.S. Court of Appeals for the Federal Circuit just applied this provision to invalidate patent claims for a nutritional supplement method to enhance muscle performance or recovery from muscle fatigue, based on an advertisement for Weider’s VICTORY™ Professional Protein published in the June 1996 issue Flex Magazine.

Iovate Health Sciences, Inc. [the parent company of Muscletech] is the exclusive license holder of U.S. Patent No. 6,100,287 (the “’287 Patent”), owned by the University of Florida Research Foundation, Inc. The patent claimed a method for enhancing muscle performance or recovery from fatigue involving certain kinds of ketoacids and amino acids.  Iovate and the Foundation sued Bio-Engineered Supplements & Nutrition, Inc. (“BSN”) for infringing certain claims of the ‘287 patent.  BSN countered that the patent claims were invalid because the Flex ad was published before the critical date and was detailed enough to teach a “person skilled in the art” how to practice the method claimed in the patent.  The judge agreed, invalidating those patent claims.

Apparently, you can’t get a patent for an invention described in a printed publication more than 1 year before the application.

For the record, patent 6,100,287 is the one cited for Muscletech’s GAKIC supp (glycine-l-arginine-alpha-ketoisocaproic acid calcium). While it’s clear from the description in the Apellate court’s decision that the Weider  product is quite different from Muscletech’s, the patent description is vague enough to cover both supps. As the court held:

We agree with BSN that the Professional Protein ad discloses each and every limitation of the claims asserted by Iovate. There is no dispute that the Professional Protein ad discloses a composition comprising a cationic or dibasic amino acid (ornithine) and a ketoacid (alpha-ketoglutarate) as well as the additional limitations found in claims 2 (glutamine), 5 (alpha-ketoisocaproic acid), 7 (arginine), 8 (conjugated amino acid and ketoacid, here ornithine-alpha-ketoglutarate), 9 (administered orally), and 18 (used on a human). It is also undisputed that the ad discloses the administration of the nutritional supplement for the purpose of enhancing muscle performance or recovery from fatigue (by building muscle strength, promoting muscle growth, and achieving faster recuperation and post-workout recovery).

In other words, Muscletech got snookered by BSN. Considering how Muscletech markets its products, there’s a sort of poetic justice in that.