Today Steptoe noticed that it is deposing one of Elysium's witnesses in the Inter Partes Review matter before the Patent and Trademark Appeals Board (PTAB). You can read the notice here:
The deposition is scheduled for Thursday April 26, at 9am Eastern in Philadelphia. None of us is invited to attend.
If the name Joseph Baur rings a bell, that is because he is the scientist upon whose testimony Elysium relied extensively in getting this Inter Partes Review initiated on the '086 patent.
We covered the Elysium's original IPR petition and ChromaDex's response here. This is Elysium's actual petition for IPR (which was granted in part), and which you can see references Dr. Baur 80+ times.
THIS is Dr. Baur's actual declaration -- Exhibit 1002 to Elysium's petition for IPR. These are the statements that Steptoe's attorneys are going to be asking a lot of questions about at the deposition.
For those not already accustomed to the joys of reading legal affidavits, here is just a taste of the 33 pages that await if you click on the link:
I, Joseph A. Baur, hereby declare as follows:
I. INTRODUCTION
1. I have been retained by Elysium Health, Inc. (“Elysium”). I am being
paid for my time regardless of the outcome of this case. Beyond the compensation I received for my time in this matter, I will not be affected in any way, positively or negatively, by the outcome of this case.
II. QUALIFICATIONS
2. I am an Associate Professor of Physiology and the Director of the Mouse Phenotyping, Physiology, and Metabolism Core at the Perelman School of Medicine, the medical school of the University of Pennsylvania.
3. I hold a Bachelor’s degree in Chemistry with honors from Acadia University (Wolfville, NS, Canada) and received a Ph.D. from the program in Integrative Physiology at the University of Texas Southwestern Medical Center at Dallas.
4. As a postdoctoral researcher, I trained with David Sinclair at Harvard Medical School, who is a world-renowned expert in sirtuins – a class of enzymes that require nicotinamide adenine dinucleotide (NAD+) as a co-substrate....
...
C. Disclosures by Goldberger and Tanner 1. Claim 1
37. All of the elements of claim 1 are disclosed in Goldberger and Tanner. Goldberger and Tanner teaches the administration of a pharmaceutical composition (which is understood to include food, based on the legal standard outlined above in paragraph 26) to prevent pellagra. While it was not known at the time that Goldberger and Tanner performed their work that buttermilk contained NR and buttermilk was not the form of milk in which NR was directly assayed in Trammell I, it is my opinion that NR is present in buttermilk, for the reasons given above in paragraph 12. The NR in buttermilk is in admixture with other soluble components of the milk, including components that are demonstrated in Trammell I to bind and stabilize the compound. (Ex. 1007, Trammell I, at 5-6.) The buttermilk in Goldberger and Tanner was administered orally. (Ex. 1006, Goldberger and Tanner, at 93.) Thus, Goldberger and Tanner teaches the administration of a pharmaceutical composition that inherently contains NR in admixture with a carrier that is suitably formulated for oral administration...
If that sounds like gobbledygook to you, that's because you are a normal person. If your mind were so defective that you understood that when Balboa discovered the Pacific Ocean, and Balboa surmised that there must be fish in that ocean, that Balboa had from his perch atop the Andes Mountains at that moment discovered and disclosed to the world every type of squid, barnacle, and plankton that might eventually be observed, then Dr. Baur's logic will make perfect sense to you.
Keep in mind that everyone agrees that at the time of the buttermilk study, NR itself had not been discovered -- no one knew what it was, or what it did, and no one knew what was the active ingredient in the milk that was curing the pellagra.
But just knowing that there was something in the milk that was having some effect in the world was preclusive of any future patents involving a known effect, according to Dr. Bauer and Elysium Health.
Later this year, we'll find out if the PTAB thinks so, too.
And no matter what the PTAB says, their conclusion will likely get appealed to the United States Court of Appeal for the Federal Circuit, so don't worry that we'll run out legal blog material any time soon...