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  • Shelly Albaum

Calm Before the Storm


It's been weeks since anything was filed in the three active disputes between ChromaDex and Elysium.

Most Recent Filings:

1. CD Cal: December 20, ChromaDex won Discovery Dispute

2. SDNY: December 11, Mediation Session Scheduled

3. PTAB: November 3, ChromaDex's response to IPR Petition

Outlook

California

If Elysium plans to resist Magistrate Judge McCormick's order that they disclose their alternate sourcing of Mystery NR, they will have to act quickly. If Elysium does not resist, then the parties are in discovery for the next several months, and we might not have much news (unless another discovery dispute erupts).

New York

The first mandatory mediation session is scheduled for this coming Friday, January 12:

The parties each have cross motions for dismissal of the other's complaints fully briefed and pending before Judge Caproni, but apparently the court is going to give the mediation a chance before weighing in on the respective merits of the claims.

That is a perfectly reasonable approach in general, but I don't think it will accomplish much in our case, because this is an asymmetric dispute. For ChromaDex, it will be less expensive to let Elysium's weak hands play out than to give Elysium what it wants. For Elysium, by contrast, the goal seems to me to be running out the clock on Mystery NR sourcing until they can bring some alternate formulation of Basis online. If that's right, then neither party has a rational reason to settle the dispute.

After this mediation session, Judge Caproni will likely rule on the dispositive motions, which will probably change the legal landscape in New York significantly.

PTAB

The Patent Trademark and Appeal Board has until about February 2nd to decide whether it wants to initiate an Inter Partes Review proceeding and take a look at two of Dartmouth's (ChromaDex's) patents, as Elysium as requested, or whether to tell Elysium that it knows the difference between milk and Nicotinamide Riboside formulated for oral consumption.

In grade school they taught me that Balboa discovered the Pacific Ocean, but they did not say that Balboa discovered every single unknown fish and mollusk that might have potentially been living in the Pacific Ocean. We'll see if the PTAB examiners had a similar education.

I don't know how seriously we should take the February 2nd due date. There may not be any penalty for the PTAB to miss its deadlines; it could be a hortatory rule. Someone skilled in the art of patent litigation knows whether the PTAB issues its rulings early, on time, or chronically late, but that person is not me.

#CDXC #ChromaDex #Litigation #ElysiumHealth

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