In a patent case involving nutritional supplements containing a ketoacid and an amino acid to enhance muscle performance or recovery from fatigue, summary judgment holding certain of plaintiff's patent claims invalid as anticipated is affirmed as the Professional Protein advertisement constitutes an anticipatory printed publication under section 102(b) that invalidates the asserted claims of the patent as: 1) the ad discloses each and every claim limitation as a matter of law; and 2) a person of skill in the art, combining his or her knowledge of the art with the advertisement's suggestions, would have considered the advertisements to be enabled.
Appeal from: United States District Court for the Eastern District of Texas
Decided November 19, 2009
Opinion by Circuit Judge Lourie
For Appellant: Charles A. Weiss, Kenyon & Kenyon LLP, New York, New York
For Appellee: Philip D. Segrest, Jr., Husch Blackwell Sanders Welsh & Katz, Chicago, Illinois