AME 40590: March 23,2011 HW Assignment: Printed Publication

' Iovate Health Sciences, Invc. v. Bio-Engineered Supplements & Nutrition, Inc. (2009)

United States Court of Appeals, Federal Circuit'

Iovate Health Sciences filed an infringement claim against Bio-Engineered Supplements and Nutrition (BSN). Iovate accused BSN of infringing on their patent that claims the “use of nutritional supplements containing ketoacid and an amino acid that is either cationic or dibasic to enhance muscle performance or recovery from fatigue.” BSN responded by filing for summary judgment in district court claiming that Iovate’s patent was invalid because a printed publication existed greater than a year prior to filing.

The district court found the patent invalid under section 102b because the patent was anticipated by advertisements for the protein supplement that was published in FLEX magazine prior to the critical date. Iovate appealed the summary judgment to the U.S. Court of Appeals. This court sided with the district court on various grounds.

Section 102b describes a printed publication as one that is “accessible to persons interested and ordinarily skilled in the subject matter to which the ads relate prior to the critical date.” Publishing the ad in FLEX magazine fits the description of a printed publication because the audience of FLEX is the very people who would most likely utilize this muscle protein. A second requirement of a printed publication is that it has to be anticipatory, which means, “the ad describes each and every claim limitation and enables one of skill in the art to practice an embodiment of the claimed invention without undue experimentation.” The Court of Appeals decided that since the ad discloses the composition of the protein and its purpose, that a person in the art could formulate the patent. Iovate argued that the ad lacks guidance on the dosage of each ingredient. The Court of Appeals decided that this was not necessary because a person of ordinary skill in the art would be able to figure it out with the current knowledge in the field. Thus, the court of appeals decided that the patent was invalid under section 102b where a printed publication was present before the critical date.