ChromaDex Litigation Summary
An observer asked if I might compile a brief summary of the ChromaDex litigation for those who very reasonably do not wish to wade through the endless flow of briefs and claims and counterclaims. So here is a high-level overview.
1. Southern District of California
Summary: Elysium took delivery of a year's supply of Niagen and refused to pay for it on the grounds that ChromaDex wasn't charging it the right price. Both parties have attempted to assert related non-contract claims:
Elysium's Claims:
Breach of Contract
Fraud
Patent Misuse
Unfair Trade Practices (DISMISSED)
ChromaDex's Claims:
Breach of Contract
Fraud (DISMISSED)
Theft of Trade Secrets (DISMISSED)
Current Status
ChromaDex has filed a motion to compel Discovery
ChromaDex's motion to dismiss the Patent Misuse claim is fully briefed, and a court ruling is due soon
Prognosis
Elysium's Patent Misuse claim will probably be dismissed
Elysium is unlikely to prevail on either of its non-contract claims for Fraud or Patent Misuse
ChromaDex's Motion to Compel Discovery will likely be granted at least in part
The breach of contract claims will probably resolve with Elysium owing ChromaDex in the range of $1M-3M
2. US PTAB (Inter Partes Review)
Summary: Elysium requests that the Patent and Trademark Appeals Board initiate Inter Partes Review of Dartmouth Patents 8,197,807 and 8,383,086 on the grounds that some studies in the 1920's noting that milk cured pellagra allegedly represent prior art that precludes patentability of a formulation containing nicotinamide riboside.
Current Status
Dartmouth has filed a preliminary answer arguing that Inter Partes Review is improper
PTAB should respond to the petition by February 3, 2018
Prognosis
PTAB probably will not initiate Inter Partes Review. The journal articles in question noted that milk cures Pellagra, but did not disclose Nicotinamide Riboside, instead attributing the effect to "some as yet unrecognized dietary complex." In addition, the prior art did not isolate nicotinamide riboside from the milk, but instead isolated the milk from the cow, which is obviously much less than what is disclosed in the Dartmouth patents.
3. Southern District of New York
Summary: Elysium sued ChromaDex because ChromaDex filed a citizens petition with the FDA challenging Basis, and ChromaDex sued Elysium for allegedly attempting to run ChromaDex out of business in support of a failed takeover attempt. The two actions were consolidated.
Elysium's Claims
Elysium claims that ChromaDex's citizens petition filed with the FDA -- which alerted the FDA to toluene residue and the lack of an NDIN for newly formulated Basis -- was improper in the following respects:
False Advertising
Trade Libel
Deceptive Business Practices
Tortious Interference
ChromaDex's Claims (the BIG Complaint)
ChromaDex claims that Elysium's behavior reflected "a nefariously conceived plan to damage and/or steal ChromaDex’s NR, reputation, employees, goodwill, and stature in the industry, as well as its customer opportunities" with the intent of "undermining ChromaDex’s viability and ability to compete," and therefore that Elysium is liable for:
False Advertising
Unfair Competition
Deceptive Business Practices
Tortious Interference
Current Status
The parties have been ordered to mediation
ChromaDex's motion to dismiss Elysium's FDA complaint is fully briefed and before the court for a decision
Elysium has moved to dismiss ChromaDex's BIG Complaint, and we are waiting for ChromaDex's opposition brief, and then Elysium's reply.
Prognosis
Elysium's complaint is likely to be dismissed on the grounds that ChromaDex had a First Amendment right to petition the FDA on a matter of public concern (Noerr-Pennington Immunity).
It is more difficult to predict what will become of ChromaDex's BIG Complaint; we'll know more after we see ChromaDex's Opposition and Elysium's Reply.