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.
Reyna, Wallach, and Stoll, Circuit Judges.
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.
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
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 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 ...