SalPeter Garrett v. ARP Wave LLC

1. Case Identification

• Case #: IPR2019-01384
• Patent #: 9,526,892
• Filed: July 23, 2019
• Petitioner(s): Garrett M. Salpeter
• Patent Owner(s): ARP Wave, LLC
• Challenged Claims: 1-21

2. Patent Overview

• Title: Method of Electro-Therapeutic Stimulation
• Brief Description: The ’892 patent relates to methods for electro-therapeutic diagnosis and treatment by applying specific electrical signals to a patient's muscular and neurological tissue. The claimed methods involve identifying points of cellular disruption and stimulating muscles during controlled patient movements using a dual periodic-exponential waveform.

3. Grounds for Unpatentability

Ground 1: Claims 1-10 are anticipated by, or alternatively obvious over, TheraStim and other references.

• Prior Art Relied Upon: TheraStim/A.R.P. Trainer (a commercial device with associated manuals and videos), Thomas (Patent 5,109,848, hereafter ’848 patent), Jaskoviak (a 1986 textbook), Nalty (a 2001 textbook), and Brehm (Patent 5,067,495).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner argued that the TheraStim device and its associated training materials, publicly available since the early 1990s, anticipated all limitations of independent claim 1. The TheraStim system allegedly applied the claimed "periodic-exponential background pulse" and taught a diagnostic method called the "Hunting Technique." Petitioner equated this technique to the claimed method of moving a first electrode across the skin to locate a "cellular disruption end point" based on the patient's cognitive feedback, followed by moving the second electrode while the first is stationary to locate an opposing end point.
  • Motivation to Combine (for §103): To the extent TheraStim was not found to anticipate, Petitioner argued a person of ordinary skill in the art (POSITA) would combine its teachings with the other references. The TheraStim device was the commercial embodiment of the ’848 patent’s waveform technology. A POSITA would apply this known signal using the well-established "trigger point" location techniques detailed in textbooks like Jaskoviak and Nalty to achieve the predictable result of diagnosing and treating pain.
  • Expectation of Success: A POSITA would have a high expectation of success because the combination involved applying a known therapeutic signal using a standard, widely-practiced diagnostic technique ("search and destroy") to achieve the known goal of pain localization.

Ground 2: Claims 11-15 are anticipated by, or alternatively obvious over, TheraStim and other references.

• Prior Art Relied Upon: TheraStim/A.R.P. Trainer, the ’848 patent, Nalty, and Brehm.
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner asserted that the TheraStim materials explicitly taught the core limitations of independent claim 11. These included applying a dual-frequency signal across a muscle, adjusting the power based on patient feedback to a tolerable level, and having the patient perform "repetitions of controlled movements of a joint" during stimulation. The TheraStim Manual and training videos allegedly contained specific protocols for treatments such as "Decreased Range of Motion" in the knee, which instructed the practitioner to "Have the patient slowly move the affected knee through the entire range of motion while TheraStim is on."
  • Motivation to Combine (for §103): A POSITA would be motivated to combine the TheraStim system with the general knowledge in the art, as taught by Nalty and Brehm, that having patients perform exercises during electrical stimulation was a common technique to improve range of motion and muscle strength. This made it a logical and desirable protocol for any electro-therapeutic regimen.
  • Expectation of Success: Combining electrical stimulation with patient movement was a conventional and well-documented therapeutic modality for improving joint function, ensuring a high expectation of success.

Ground 3: Claims 17-21 are anticipated by, or alternatively obvious over, TheraStim and other references.

• Prior Art Relied Upon: TheraStim/A.R.P. Trainer, the ’848 patent, Jaskoviak, and Nalty.
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner argued that TheraStim taught the method of independent claim 17, which requires identifying a "facilitator muscle" and applying a signal between it and a "receiver muscle" while the patient flexes the receiver muscle. Petitioner contended that the TheraStim materials demonstrated placing electrodes across multiple muscle groups (e.g., biceps and other arm muscles) and taught that the "search and destroy" technique could be used to identify the muscle with the greatest neuromuscular communication (the "facilitator") within that group.
  • Motivation to Combine (for §103): Jaskoviak and Nalty taught stimulating entire muscle groups to maximize therapeutic effectiveness. A POSITA would be motivated to apply the advanced TheraStim waveform across the muscle groups shown in these textbooks to achieve more effective muscle re-education, a known goal in electrotherapy.
  • Expectation of Success: Applying stimulation across known, communicating muscle groups was a standard practice in physiotherapy, and success in achieving muscle contraction and therapeutic benefit was predictable.
• Additional Grounds: Petitioner asserted an additional obviousness challenge against claim 16 based on combinations of TheraStim, the ’848 patent, Jaskoviak, Nalty, and/or Brehm, arguing it was a more complex but obvious variant of the methods taught for claims 1 and 11.

4. Key Claim Construction Positions

• "facilitator muscle": Petitioner proposed construing this term to mean one of a specific list of muscles belonging to either "Group A" or "Group B" as disclosed in the ’892 patent’s specification. This construction limits the term to muscles within defined "neurologically coupled" groups.
• "receiver muscle": Petitioner proposed this term means any muscle within the same Group A or Group B that is not the designated "facilitator muscle."
• These constructions were argued as crucial for the invalidity arguments against claims 17-21, as they tie the broad claim language to specific anatomical disclosures in the patent, which Petitioner then mapped to the prior art.

5. Relief Requested

• Petitioner requests institution of an inter partes review and cancellation of claims 1-21 of Patent 9,526,892 as unpatentable.