888 F.3d 1256 (Fed. Cir. 2018), 2017-1483, Disc Disease Solutions Inc. v. VGH Solutions, Inc.

Docket Nº:2017-1483
Citation:888 F.3d 1256
Opinion Judge:Reyna, Circuit Judge.
Party Name:DISC DISEASE SOLUTIONS INC., Plaintiff-Appellant v. VGH SOLUTIONS, INC., Dr-Ho’s, Inc., Hoi Ming Michael Ho, Defendants-Appellees
Attorney:Christopher Nace, Paulson & Nace PLLC, Washington, DC, argued for plaintiff-appellant. Meaghan Kent, Venable LLP, Washington, DC, argued for defendants-appellees. Also represented by Steven James Schwarz, Claire Marie Wheeler.
Judge Panel:Before Reyna, Wallach, and Stoll, Circuit Judges.
Case Date:May 01, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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888 F.3d 1256 (Fed. Cir. 2018)

DISC DISEASE SOLUTIONS INC., Plaintiff-Appellant

v.

VGH SOLUTIONS, INC., Dr-Ho’s, Inc., Hoi Ming Michael Ho, Defendants-Appellees

No. 2017-1483

United States Court of Appeals, Federal Circuit

May 1, 2018

Page 1257

Appeal from the United States District Court for the Middle District of Georgia in No. 1:15-cv-00188-LJA.

Christopher Nace, Paulson & Nace PLLC, Washington, DC, argued for plaintiff-appellant.

Meaghan Kent, Venable LLP, Washington, DC, argued for defendants-appellees. Also represented by Steven James Schwarz, Claire Marie Wheeler.

Before Reyna, Wallach, and Stoll, Circuit Judges.

OPINION

Reyna, Circuit Judge.

Disc Disease Solutions Inc. appeals an order from the United States District Court for the Middle District of Georgia that dismissed with prejudice its complaint for failure to state a claim and denied its request to file a first amended complaint. The district court erred when it dismissed the complaint for failure to state a claim. We reverse the district court’s grant of the motion to dismiss and remand for further proceedings.

BACKGROUND

This appeal involves U.S. Patent No. 8,012,113 (" ’113 patent" ), entitled " Spinal Brace," and U.S. Patent No. 7,618,509 (" ’509 patent" ), entitled " Wrinkled Band Without Air Expansion Tube and its Manufacturing Method." The ’113 patent is directed to an air injectable band with a rigid panel worn around the waist. When the band is inflated it expands vertically to provide traction to the spine of the user to relieve back pain. The ’113 patent consists of three independent claims. Claim 1 recites: 1. A spinal brace comprising:

a flexible air injectable band configured to be disposed about a torso of a user and to provide traction to a spine of the user;

a support panel configured to provide support by compression to at least a region of said torso, said support panel being less flexible than said air injectable band; and

means of associating said support panel with said flexible air injectable band;

wherein the air injectable band is configured to expand in an axis generally parallel to the spine when inflated so as to apply a force at a rib area of the user via an upper edge and a force at a hip area via a lower edge to provide said traction comprising a decompression of vertebrae within the spinal column of the user; and

wherein said means of associating comprise two association openings formed

Page 1258 through the support panel, one association opening disposed at each of substantially opposite ends of said support panel, the air injectable band extending through the association openings, wherein the association openings traverse across the support panel in a direction generally parallel to the spine and wherein said association openings have a dimension in said direction that is greater than a corresponding dimension of the flexible air injectable band.

’113 patent, col. 5 ll. 12-36.

The509 patent is directed to a method of manufacturing a wrinkled band by adhering an overlapped sheet creating an inner space and adhering a stretched elastic band above and below the inner space. The509 patent consists of one independent claim, which recites: 1. A...

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