As part of my patent law class every year I hold a moot court competition. This year we are doing a mock-appeal based upon Judge Huff’s decision in Natural Alternatives International, Inc. v. Creative Compounds, LLC, 2017 WL 3877808 (S.D. Cal. Sept 5, 2017) [case file link].
In her decision, Judge Huff granted Plaintiffs Rule 12(c) motions for judgment on the pleadings – ruling that all claims of the five asserted patents were invalid for claiming ineligible subject matter under 35 U.S.C. § 101.
A few of the claims at issue:
34. A human dietary supplement for increasing human muscle tissue strength comprising
a mixture of creatine, a carbohydrate and free amino acid beta-alanine that is not part of a dipeptide, polypeptide or an oligopeptide,
wherein the human dietary supplement does not contain a free amino acid L-histidine,
wherein the free amino acid beta-alanine is in an amount that is from 0.4 g to 16.0 g per daily dose,
wherein the amount increases the muscle tissue strength in the human, and
wherein the human dietary supplement is formulated for one or more doses per day for at least 14 days.
Claim 34 of the U.S. Patent No. RE45,947.
6. A composition, comprising:
a) an amino acid selected from the group consisting of a beta-alanine, an ester of a beta-alanine, and an amide of a beta-alanine, or
b) a di-peptide selected from the group consisting of a beta-alanine di-peptide and a beta-alanylhistidine di-peptide;
wherein the composition is a dietary supplement or a sports drink; and
wherein the dietary supplement or sports drink is a supplement for humans.
Claim 6 of U.S. Patent No. 7,504,376 (Note, claim 6 is a dependent claim, and I have reformulated it in independent form by incorporating elements of the parent claims).
1. A method of increasing anaerobic working capacity in a human subject, the method comprising:
a) providing to the human subject an amount of an amino acid to blood or blood plasma effective to increase beta-alanylhistidine dipeptide synthesis in the tissue, wherein said amino acid is at least one of:
i) beta-alanine that is not part of a dipeptide, polypeptide or oligopeptide;
ii) an ester of beta-alanine that is not part of a dipeptide, polypeptide or oligopeptide; or
iii) an amide of beta-alanine that is not part of a dipeptide, polypeptide or oligopeptide; and
b) exposing the tissue to the blood or blood plasma, whereby the concentration of beta-alanylhistidine is increased in the tissue,
wherein the amino acid is provided through a dietary supplement.
Claim 1 of U.S. Patent No. 8,470,865.
Important in her decision is that the approach to eligibility of products-of-nature is: Myriad in light of Mayo. How would you argue this case?