February 7, 2011
To whom it may concern:
ThermoLife competitor Gaspari Nutrition has recently filed “Request for Ex Parte Reexamination” (hereinafter “Request”) for U.S. Patent No. 7,777,074 (“ ‘074 patent”) entitled “Amino Acid Compounds” with the United States Patent and Trademark Office (USPTO). While a Reexamination has been ordered, ThermoLife feels that such an action instituted by Gaspari is nothing more than a questionable effort to hinder ThermoLife business. Nonetheless, ThermoLife takes this opportunity to inform competitors and consumers of the Reexamination proceedings and the continuing enforceability of the ThermoLife patent in question during this proceeding.
With the USPTO ordering a Reexamination, the USPTO has only merely found that there may be a question of patentability because of some patent references that were not considered in the initial examination of the application by the examining attorney—not that the patent is invalid and unenforceable. Thus, other than ordering the Reexamination, the USPTO has not looked into the substance or merits of the case yet, but will leave that to a Patent Examiner who will be assigned to the case.
Accordingly, the ‘074 patent to ThermoLife remains valid and enforceable throughout the Reexamination proceeding. Therefore, knowledgeable infringement of the patent claims even during Reexamination likely constitutes willful infringement, potentially subjecting the infringers to treble damages and attorney fees.
Additionally, despite the Reexamination, ThermoLife remains very confident in the enforceability of each aspect of every claim in the ‘074 patent. The confidence of ThermoLife stems from the nature of the references submitted to the USPTO by Gaspari. The references contain, amongst other things, chemical impossibilities and compounds so specific as to not invalidate the subject of the original claims of ThermoLife’s ‘074 patent.
For example, one of the four patents or publications submitted to the USPTO by Gaspari is U.S. Patent No. 4,379,177 (“ ‘177 patent”), entitled “Stable Dehydrated Cocrystalline Amino Acid Foot Additives”. Not only does this patent lack any invalidating disclosures, it is also a testament to the significant chemical advancement made by ThermoLife in the ‘074 patent. In addition, the references within the ‘177 patent that Gaspari claims invalidate ThermoLife’s ‘074 patent are chemically impossible. For example, the ‘177 patent cited by Gaspari claims that nitric acid, as a very strong acid, will leave a very strong ionic bond with a salt of a strong base to bond with a relatively weak amino group to form a cocrystalline matrix. Gaspari then, either knows of this chemical impossibility and has unfairly filed this patent as prior art, or is ignorant of the principles of chemistry and should therefore not be trusted as a source of goods.
As another example, and perhaps most significant, the ‘177 patented submitted by Gaspari discloses only a cocrystalline structure of an amino acid material and a “soluble edible cocrystallizer material.” As is well known in the art, cocrystallization sometimes creates crystals with different physical properties, but does not change the molecular structure of the compounds involved. The products are only mixed together, and a no new chemical compound is formed as a result of the mixing. In contrast, ThermoLife’s ‘074 patent discloses a reaction wherein the reactants of an amino group, nitric acid, and water are mixed together, and the product of the reaction includes a new chemical compound—a nitrate or nitrite amino group. Therefore, the claimed amino acid compound of ThermoLife’s ‘074 patent is different than the cocrystalline structure referred to in the ‘177 patent submitted by Gaspari.
Furthermore, it should also be noted that ThermoLife continues to prosecute multiple patent applications related to the ‘074 patent. Therefore, even if some of the amino acids currently present in the claims of the ‘074 patent to ThermoLife are lost during reexamination, these related applications contain claims with other amino acid nitrate or nitrite compounds. Besides additional amino acid nitrate or nitrite compounds, these additional applications also include amino acid nitrate or nitrite composition claims and method of use claims for a wide variety of amino acid nitrate or nitrite compounds (including the compounds in ThermoLife’s ‘074 patent) and compositions, such as methods for increasing vasodilatation, methods for increasing bioabsorption (increased amino acid uptake by muscle), methods for increasing athletic performance, and other methods. ThermoLife is confident these related applications will also issue with significant claim coverage to further help ThermoLife secure the area of amino acid nitrate or nitrite compounds, compositions, and methods of use in the sports nutrition market place.
Moreover, even if it is determined during Reexamination that a prior art patent discloses one or more of the amino acid nitrate or nitrite compounds currently present in the claims of the ‘074 patent, not all of the compounds would be disclosed by the prior art patents now under consideration. Therefore, at a minimum, ThermoLife is very confident that amendments may be made to the ‘074 claims that will still allow the patent to remain valid and enforceable with many of the compounds now listed.
In summary, regardless of the Gaspari Nutrition initiated Reexamination with the USPTO, ThermoLife reasserts the validity and enforceability of the claims of the ‘074 patent. ThermoLife remains wholly confident in the subject matter of the ‘074 claims, which will no doubt survive this Reexamination proceeding.
This statement was prepared by lawyers of ThermoLife International.
For more information contact:
Ron Kramer / Owner / ThermoLife International