Shelly Albaum
Mar 21, 2019
ChromaDex has filed its cross-appeal of the Patent Trial and Appeal Board's (PTAB's) determination that Claims 1 and 3-5 in the '807 patent were anticipated by prior art. You can read the notice of appeal here:
In its notice, ChromaDex says, "the appeal will address all aspects of the Board’s decision purporting to conclude that Petitioner has demonstrated, by a preponderance of the evidence, that claims 1 and 3-5 of the ’086 patent are unpatentable."
I am glad to see this cross-appeal, because I thought ChromaDex had compelling arguments below, and that even a patent-hostile entity like the PTAB could see that.
What comes next is briefing and maybe oral argument before the CFAC. Relevant to that is last week's decision by a CAFC panel vindicating a health supplement patent on eligibility grounds. Eligibility is an entirely different argument from the prior art issue involved in this PTAB appeal, but the CAFC decision at least shows that the CFAC is not intrinsically hostile to health supplement patents and isn't shy about reversing judges who improperly immolate patent rights.
For anyone interested in the timing, ChromaDex had 14 days to file its notice of cross-appeal after Elysium filed its notice of appeal.
The matter is now before the Court of Appeals for the Federal Circuit (CAFC), docket # 19-1630. I'll be keeping an eye on the docket, of course. So far, Foley Hoag attorneys Donald Ware, Jeremy Younkin, and Brendan Jones have appeared for Elysium. These are the same attorneys who represented Elysium in the matter below. UPDATE: And John Abramic and Jamie Lucia, of Steptoe, have noticed their appearances on behalf of Dartmouth (ChromaDex).