PTAB

IPR2016-00571

LifeWave Inc v. Blendermann Edward

Key Events

Petition

petition

Title: Method for Improving Muscle Strength and Endurance
Brief Description: The ’590 patent discloses methods for improving muscle strength and endurance during physical activity. The method involves wearing a nutrient-holding device with a waterproof enclosure that contains at least one nutrient but explicitly does not contain a magnet, polarizer, or sulfur powders or crystals.

Prior Art Relied Upon: Pinter (Patent 6,277,142).
Core Argument for this Ground:
- Prior Art Mapping: Petitioner argued that Pinter disclosed every limitation of the challenged claims. Pinter taught a wearable device that promoted healthy energy flow, which Petitioner contended improved muscle strength and endurance. The device held copper conductive elements, which Petitioner asserted met the claim term "nutrient" under its proposed construction. These elements were disposed between waterproof dielectric layers, meeting the "waterproof enclosure" limitation. Pinter disclosed that the device could be worn during activity and did not describe the use of magnets, polarizers, or sulfur. For claim 2, Petitioner argued that figures in Pinter illustrated a material thickness separating the nutrient (copper) from the skin of approximately 2 mm, satisfying the "up to 3 mm" limitation.
- Key Aspects: This ground relied heavily on construing the mineral copper as a "nutrient" and interpreting Pinter's general purpose of "balancing energy flows" as inherently improving muscle strength and endurance.

Prior Art Relied Upon: Cron (Patent 6,148,822) and Driskill (Patent 5,289,644).
Core Argument for this Ground:
- Prior Art Mapping: Petitioner asserted that Cron taught a "pedal device" in the form of a shoe insole containing crystals and powders (such as phosphates, argued to be "nutrients") to improve muscle strength and correct posture. Cron's device was worn during physical activity and was free of magnets and polarizers. However, Cron did not explicitly disclose that its insole enclosure was waterproof. Driskill was introduced to supply this missing element, as it taught the construction of waterproof footwear, including waterproof insoles made from materials like polymeric board or waterproof fabric.
- Motivation to Combine: Petitioner argued a person of ordinary skill in the art (POSITA) would combine Cron's nutrient-holding insole with Driskill's known waterproofing technology for the predictable purpose of protecting the enclosed nutrients from moisture during use. This was presented as a routine substitution of known components to achieve a predictable result.
- Expectation of Success: A POSITA would have had a high expectation of success because making an insole waterproof using materials taught by Driskill was a well-understood and straightforward design choice to protect the contents of the insole.

Prior Art Relied Upon: Francis (Patent 4,856,651), Spitler (Patent 5,005,374), and Miyashita (Patent 5,233,981).
Core Argument for this Ground:
- Prior Art Mapping: Petitioner contended that Francis disclosed a wearable thermal pack in a waterproof pouch (made of biax nylon) containing chemical nutrients like sodium chloride and magnesium sulfate. Miyashita taught that applying heat from such a pack improves local metabolism, which enhances muscle strength and endurance. While Francis taught a wearable pack, Spitler was cited for its explicit teaching of wearing thermal wraps to heat or cool body parts during exercise, such as jogging.
- Motivation to Combine: A POSITA would combine these references by using the thermal pack of Francis during exercise, as taught by Spitler, to achieve the known benefits of improved muscle metabolism and endurance described by Miyashita. Petitioner argued this was merely employing a known device (Francis pack) for a known use (application during exercise, per Spitler) to obtain a predictable result (enhanced muscle function, per Miyashita).
- Expectation of Success: The combination was portrayed as yielding only predictable results, as each reference was used for its intended purpose without modification, leading to the claimed method.
Additional Grounds: Petitioner asserted an additional obviousness challenge against claims 1, 2, 9, 12, 14, and 16 based on Cron as a single reference.

"nutrient" and "nutrient material": Petitioner argued for a broad construction of "a substance that provides nourishment for growth and/or metabolism." This interpretation was critical to the invalidity arguments, as it allowed minerals such as copper (in Pinter), phosphates (in Cron), and salts like sodium chloride (in Francis) to qualify as the claimed "nutrient."
"sulfur powder or crystals": Petitioner contended this negative limitation should be construed as a single phrase meaning "sulfur in solid form," thereby excluding sulfur-containing compounds like the magnesium sulfate disclosed in Francis. This construction was necessary for the Francis-based ground to meet the negative limitation of the claims.
"the thickness of the holding device may be up to 3 mm": For claim 2, Petitioner proposed that this phrase refers to the thickness of the material separating the nutrient from the user's skin, not the thickness of the entire device. This broader construction was used to argue that the thin layers shown in Pinter and known in the art of insoles (for Cron) met the claim limitation.

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