Phoenix dietary supplement company ThermoLife International, LLC, has sued Denver competitor MusclePharm Corporation in U.S. District Court in Arizona, claiming that MusclePharm’s Creatine supplement is infringing ThermoLife’s U.S. Patent No. 7,777,074 for amino acid compounds, including creatine nitrate, a vasodilator that increases blood flow. In its Complaint, filed February 1, 2012, ThermoLife contends that the stiff competition and ever-increasing market demand for the “next great muscle building supplement” results in dietary supplement makers frequently copying the successful products and ingredients of competitors, such as ThermoLife’s supplements. One such supplement is ThermoLife’s creatine nitrate product C-BOL.
The patent notes that creatine, which provides muscles with energy, is used by the dietary supplement industry to increase muscle-mass gains, improve athletic performance and strength. It is a nonessential amino acid that does not have to be obtained directly through diet because the body independently manufactures it. Taking creatine supplements is said to increase creatine production in the body. By itself, creatine has no vasodilating effect.
The patent also discusses “tolerance,” a side effect of nitrate compounds that occurs when a subject’s reaction to nitrate decreases so that larger dosages are needed to achieve the same vasodilution effect. The patent states that the presence of the amino acid arginine may prevent the development of nitrate tolerance (but it does not say the same for creatine nitrate compounds).
ThermoLife, founded by professional bodybuilder and promoter Ron Kramer, charges that MusclePharm’s Creatine product contains a “Creatine Matrix” of five types of creatine, including creatine nitrate, which ThermoLife describes as “a desirable additive to dietary supplements for athletes and others.” ThermoLife’s patent states that the creatine nitrate compound it discovered improves vasodilation over creatine, nitrates or nitrites alone, provides better circulation and distribution of the creatine amino acid in the body, improves absorption of the amino acid and requires a much lower dose to produce the vasodilation effect.
According to the Complaint, MusclePharm’s competition with Creatine has been effective enough to make it the No. 15 top selling product on BodyBuilding.com, which ThermoLife describes as the largest sports nutrition company in the world and most visited bodybuilding and fitness web site on the Internet. However, when Ron Kramer contacted MusclePharm’s co-president Jeremy DeLuca (former co-owner of BodyBuilding.com) to inform him of ThermoLife’s patent, MusclePharm did not stop selling its Creatine product, resulting in the lawsuit that charges MusclePharm with patent infringement, inducing patent infringement and contributory patent infringement. ThermoLife is seeking a holding from the judge that its patent is valid and enforceable, an injunction preventing MusclePharm from selling Creatine, destruction of all Creatine products, MusclePharm’s profits or a reasonable royalty from its sales of selling Creatine, triple damages and attorneys’ fees.
U.S. Patent No. 7,777,074, issued August 17, 2010, has only one independent claim – “An Amino Acid Compound consisting essentially of a nitrate or nitrite of an Amino Acid selected from the group consisting of Arginine Beta Alanine, Agmatine, Citrulline, Creatine, Glutamine, L-Histidine, Isoleucine, Leucine, Norvaline, or Ornithine.”
If this case goes forward, we can expect to see MusclePharm attacking the validity of ThermoLife’s patent. ThermoLife has also sued Pure Assay, Sechel Holdings (Ergogenix), SciLabs Neutraceuticals and others for including their patented amino acid nitrates in supplements. However, Gaspari Nutrition has requested that the U.S. Patent and Trademark Office reexamine ThermoLife’s patent, based on publications it claims contain references that will invalidate the patent. ThermoLife’s attorneys have disputed the relevance of those references.