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  • Writer's pictureShelly Albaum

Elysium's Objections to CDXC PTAB Response

Elysium has timely filed its objections to the exhibits that ChromaDex filed with its final response in the PTAB matter. You can read the objections here:

For comparison, you can see the kind of objections that ChromaDex made to Elysium's exhibits. ChromaDex's objections were filed in February. Back then we wrote:

These are routine kinds of objections, and I don't express any opinion on the merits of the evidentiary issues.

However, this may be an indication that Steptoe is going to bring to bear maximum force in defending the Dartmouth/ChromaDex patent. It looks like Steptoe will not give an inch.

The same is true of Elysium's objections -- they appear to be everything-but-the-kitchen-sink routine objections to preserve issues for appeal.

It's hard to take some of these objections seriously. For example, the objections to the dictionaries as not authenticated and inadmissible hearsay hardly seem worth the trouble, because dictionaries are routinely referred to by courts and sometimes judicially noticed. But should a definition prove both pivotal and defective, Elysium has preserved its ability to complain to the Federal Circuit about it.

Ditto for Elysium's complaint that Dr. Zhou is not qualified as an expert, despite his being a biochemistry professor for 17 years with 45 peer-reviewed publications.

I would expect the PTAB to overrule or ignore all objections from both sides and decide the matter on the record submitted.

To the extent that this plethora of objections suggests that Elysium is preparing for a negative outcome and an appeal, I think they are analyzing the situation correctly.

Or it could just be bill-padding. If you've already spent millions of dollars, what's a few more billable hours drafting and proofing a few extra objections, even if they are probably not going to be useful?

I would note that Steptoe's table format is more informative and easier to read than Foley's text format. Demerits to Foley!

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