PTAB

IPR2016-00131

LifeWave Inc v. Blendermann Edward

Key Events

Petition

petition Intelligence

Title: Method for Increasing Muscle Strength and Endurance
Brief Description: The ’590 patent discloses a method for improving muscle strength and endurance by wearing a nutrient-holding device during physical activity. The device contains at least one nutrient in a waterproof enclosure that separates the nutrient material from the wearer's skin.

Prior Art Relied Upon: Amulets (a 1994 book titled "How To Make Amulets, Charms And Talismans").
Core Argument for this Ground:
- Prior Art Mapping: Petitioner argued that Amulets disclosed every limitation of the challenged claims through its description of a "Mercurian amulet" intended to increase strength. The amulet is described as a wearable device (worn as a necklace) that holds nutrients (seeds and herbs) within a waterproof enclosure made of cast polyester resin. This resin covering fully contains the nutrients, separates them from the skin, and does not include the magnets, polarizers, or crystals expressly excluded by claim 1. Petitioner contended that because protecting against respiratory ailments inherently improves muscle endurance during exercise, Amulets taught the claimed method. For claim 2, Petitioner argued the resin layer is the only covering separating the nutrients from the body and that the claim's thickness limitation ("may be up to 3 mm") is not a restrictive requirement, making Amulets' silence on a specific thickness irrelevant.

Prior Art Relied Upon: The '744 document (Chinese Application # CN1133744A).
Core Argument for this Ground:
- Prior Art Mapping: Petitioner contended that the ’744 document, which disclosed a self-sticking, non-transdermal plastic patch for relieving pain and improving health, anticipated claim 2. The patch is a wearable nutrient-holding device containing Chinese or Western medicine (nutrients) in a dedicated layer. This nutrient layer is separated from the body by a waterproof film that acts as the covering. Critically, the '744 document explicitly disclosed that the patch's overall thickness is between 0.2 mm and 2.5 mm, which falls squarely within the "up to 3 mm" limitation of claim 2. Petitioner argued that the disclosed therapeutic effects, such as pain relief, would inherently improve muscle strength and endurance during physical activity.

Prior Art Relied Upon: Amulets and the '744 document.
Core Argument for this Ground:
- Prior Art Mapping: Petitioner argued that Amulets taught a wearable, waterproof nutrient container, and the '744 document taught a thin, non-transdermal adhesive patch for a similar purpose. For claim 2, even if Amulets' failure to specify a thickness was considered a missing element, a person of ordinary skill in the art (POSITA) would have found it obvious to make the Amulets device thin, as taught by the '744 document, for user comfort and convenience. For claim 18, which requires the device to be a "non transdermal patch that adheres to the body," Petitioner asserted it would have been obvious to replace the resin-and-necklace holding mechanism of Amulets with the well-known non-transdermal adhesive patch taught by the '744 document to achieve the same function of holding nutrients near the skin.
- Motivation to Combine: A POSITA would combine these references as a simple substitution of known components to achieve a predictable result. One would be motivated to take the nutrient-holding concept from Amulets and implement it using the more modern and convenient form factor of an adhesive patch as taught by the '744 document.
- Expectation of Success: Because the combination involved replacing one known method for holding an object on the body (a necklace) with another (an adhesive patch), a POSITA would have had a high expectation of success.

"the thickness of said holding device may be up to 3 mm" (Claim 2): Petitioner argued this phrase should be construed to mean there is a possibility the thickness is up to 3 mm, but it does not preclude or exclude devices with a thickness greater than 3 mm. This construction was central to the anticipation argument against Amulets, which does not disclose a specific thickness, as Petitioner argued the claim language does not impose a strict upper limit.
"nutrient" and "nutrient material" (Claims 1 and 2): Petitioner proposed these terms be construed broadly to mean "one or more of herbs, amino acids, enzymes, vitamins..." and other substances listed in the ’590 patent's specification. This broad construction allowed Petitioner to assert that the "seeds and herbs" in Amulets and the "Chinese or Western medicine" in the '744 document met the claim limitation.

Petitioner requested institution of an inter partes review and cancellation of claims 1, 2, 9, 12, 14, 16, and 18 of the ’590 patent as unpatentable.