(Chicago, IL) May 14, 2007 – The U.S. District Court for the Eastern District of Texas recently granted a victory to Bio-Engineered Supplements & Nutrition (BSN) in its Markman ruling which significantly limited the scope of San Francisco-based Medical Research Institute’s (MRI) U.S. 6,905,707 patent (‘707 Patent) claims. MRI had brought suit against BSN alleging that its Nitrix product infringed MRI’s ’707 Patent.

Following the Court’s Markman ruling, MRI conceded that Boca Raton, FL-based BSN’s Nitrix product does not infringe its ‘707 Patent and filed a motion for entry of judgment pursuant to Federal Rule of Civil Procedure Rule 54(b) in favor of BSN. The Court entered a final judgment of non-infringement in favor of BSN.

Federal Rule of Civil Procedure 54(b) relates to a judgment upon multiple claims or parties and allows the Court to enter a final judgment to one or more but fewer than all of the claims or parties when it is shown that there is no reason for delay and upon express direction. In this case the court entered final judgment in favor of BSN for MRI’s patent infringement claim, dismissed BSN’s patent counterclaims, dismissed MRI’s claims against the other defendants, and severed BSN’s antitrust counterclaim.

Bio-Engineered Supplements & Nutrition, Inc. is a leading developer, marketer, provider and distributor of nutritional supplements designed for training, physique, and performance. Its host of innovative products includes Nitrix™, a controlled release arginine alpha-ketoglutarate product for volumizing muscle tissue for pumps, toning, and hardness.
Laura Chubb, one of the attorneys for Amin Hallihan LLC representing BSN, explained “a Markman hearing is utilized by the Court to determine how the claims of a patent should be interpreted and that interpretation is used by the jury to determine whether there is infringement or not.”

William J. (Hal) Hallihan, Amin Hallihan LLC partner and lead counsel in this case, said “MRI appeared to argue that its patent broadly covered all controlled release arginine alpha-ketoglutarate (AAKG) formulations regardless of the composition. However, the Court rejected many of MRI’s arguments and limited the scope of certain patent claims to include controlled release formulations which include ‘only AAKG plus excipient materials’,” Hallihan added.
“MRI also appeared to argue that certain claims of its patent covered any method of treatment utilizing a controlled release AAKG formulation,” noted Rakesh Amin, Amin Hallihan LLC partner. “The Court again rejected many of MRI’s arguments and limited the scope of the patented method claims to a method of treating atherosclerosis, ‘a disease, symptom, or condition characterized by a progressive narrowing and hardening of the arteries’.”

The Court defined other terms in favor of BSN, such as “human patient” as “a recipient of any various personal health services,” which further limited the scope of MRI’s method claims to mean that a formulation must be received by a health service provider and intended to treat atherosclerosis. In doing so, the Court rejected MRI’s suggestion that the word “patient” essentially added nothing to the claim and was redundant with the term “human.”

Hal Hallihan further explained, “MRI filed the patent lawsuit in a district that, according to published reports, is considered by many to be significantly pro-plaintiff in patent cases. If such reports are true, the ruling is especially significant because even such an allegedly plaintiff friendly court found it must interpret the claims such that MRI could not even assert the patent claims are infringed and had to concede.”

Amin Hallihan, LLC is a Chicago-based boutique law firm specializing in intellectual property including patents, trademarks, copyrights, trade secrets and licensing, FDA, FTC, Customs, transactional and litigation matters. For more information call 312.466.1033 or visit www.AminHallihan.com.
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