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Introduction
ACS's Chemical & Engineering News published an interesting and responsible article this week titled Firms Feud Over Niagen, a Purported Age Fighting Molecule:
The article was responsible because it provided a clear, straight-forward, unbiased account of the events in question.
But it was interesting for a different reason.
Specifically, it quoted the always-understated-and-conscientious Dr. Charles Brenner as follows:
Brenner characterizes the alleged skulduggery as “a pretty shocking story of scientific theft and piracy.” ...Brenner says he is pleased to have ChromaDex as a commercial partner. He and Dartmouth turned down other prospects, he says, to choose one they felt was ethical and rigorous. To Brenner, that means a partner who pays for research proving that the substance is safe for people, follows up on potential health findings, and does not make unproven health claims. “My advice for people with discoveries is to apply the same criteria for industrial partners as you would for academic collaborators,” he says. With some companies, he says, “you have to educate people involved in marketing a product to stay inside the lines.” [emphasis added]
The references to "scientific theft" and Dartmouth's having "turned down other prospects" when it chose to license its Nicotinamide Riboside patents to ChromaDex represent new clues in our quest to better understand the history and mechanics of this commercial and legal dispute.
Let's start with "scientific theft."
Part 1 -- Scientific Theft
The Elysium-ChromaDex litigation is about commercial theft -- theft of trade secrets, breach of contract, unfair competition, and patent infringement.
Scientific theft is something else -- stealing someone else's ideas or discoveries and claiming them as your own. Does Elysium do that?
The Internet is filled with stories and lists of scientists who either stole ideas from others without crediting them, or improved someone else's invention and then claimed credit for the invention, not just the improvement. Not only is the Internet filled with such stories, but also filled with concern about the harm caused by this unethical behavior.
Let's take a look at Elysium's product claims in some of its advertisements:
Panel 1
Elysium claims that Basis is the result of 25 years of research -- in fact, those 25 years of research are what's in the capsule, it says.
Twenty-five years is a somewhat concerning number, because we know for a fact that the unique properties of the primary active ingredient in Basis, Nicotinamide Riboside, were discovered by Dr. Charles Brenner, at Dartmouth College, in 2004. Elysium was founded in 2014, and launched Basis in 2015 -- so the math sounds wrong -- it should be more like 10 years. What could the 25 years be referring to?
Panel 2
Elysium's ads prominently feature Elysium's co-founder, Leonard Guarente, Dr. Guarente's institution (MIT), and the fact that Guarente is a researcher.
The ad says that Guarente is an MIT researcher, Guarente wants to change aging, and Basis is the result of "really good aging research." The obvious implication is that Guarente is the researcher, or Guarente is involved in the research. If he is bragging about someone else's research, or research done at some other institution, there is no sign of it yet.
Panel 3
The ad below contains an even stronger suggestion that the research they are talking about is Leonard Guarente's research:
The ad uses the phrase "My research," which is about "the aging process." We can even see Dr. Guarente in his laboratory looking into a microscope. There is again no reference to any other researcher or any other institution. The conclusion that the research they are talking about is Guarente's is inescapable.
Panel 4
Panel 4 shows Elysium again taking first-hand credit for discoveries -- "We've uncovered a basic mechanism of aging" and "we have opened up the potential to intervene in this process."
The clear implication is that they are talking about Basis. But Guarente's research is actually about Sirtuins and NAD, and Basis does not contain either Sirtuins or NAD.
<UPDATE: 8/26/2018>
It doesn't take a biochemist to see that Elysium is claiming as its own research that was done by others:
</Update>
Of course, Dr. Guarente's familiarity with Sirtuins and NAD would allow him to recognize the importance of Dr. Brenner's discovery, but that's a long ways from having made the discovery himself.
In the movie Amadeus, Antonio Salieri is uniquely able to see the value of Wolfgang Mozart's work, but Salieri was no Mozart, and instead attempted to steal Mozart's work and claim credit for it.
[The movie Amadeus tells a story of artistic theft. One thing Elysium did NOT invent is taking credit for others' work. That kind of misbehavior is as old as time.]
Has Leonard Guarente cast himself in the role of Salieri in these Elysium Basis commercials? F. Murray Abraham won Best Actor for his portrayal of Salieri. We'll see if Guarente can match Abraham's performance.
Product Testing
Elysium Health goes to extraordinary efforts to paint itself as a science-driven, research-driven company that is all about discovery. Their Nobel-laureate advisory board's "sole role is to advise Elysium on the development and testing of its compounds," according to one of its members.
But here's the weird thing: There are no compounds.
Four years later, Elysium still has just a single product, and that product's two ingredients (nicotinamide riboside and pterostilbene) were invented, patented, developed, and tested elsewhere -- Elysium simply licensed the ingredients from a supplier.
In fact, Elysium expressly states in the California litigation that it relied on the SUPPLIER (ChromaDex) to do the testing on the ingredients in Basis. See Third Amended Counterclaims, paragraphs 110 & 111. So it is indisputable that the Nobel Laureate panel was not involved in the scientific development or testing of Basis, and therefore had nothing at all to do with Basis, based on Elysium's and its advisory panel member's own admissions.
And lots of other companies ALSO licensed those same chemicals and sold them in a bottle -- some before Elysium. So we are at a loss to imagine what honest work is available at Elysium to keep seven Nobel laureates busy for four years.
Product Development
Everywhere you look, Elysium claims that it has a research-driven product development process. This is from Elysium's court-filing in New York
One of Elysium's co-founders, who heads MIT's aging center, has been described as "one of the world's leading scientists in the field of aging research."...Elysium differentiates itself with a dedication to scientific research and rigor sorely lacking in the nutritional supplement industry, evident in its Scientific Advisory Board, a group including numerous Nobel Laureates that "advise[] the Elysium team on product identification and development, clinical studies and ongoing research"; its research partnerships with prestigious institutions such as Harvard and Oxford; and its own scientific publication featuring articles on advances in aging and health-related research. Its website describes a multi-stage R&D process for new products under development that includes a review of scientific literature, various stages of development, and safety testing conducted for regulatory submissions.
How would an Elysium customer realize that Elysium's only product entirely resulted from the research of unnamed others? And that all of the research that Elysium repeatedly refers to involves unnamed future products that year-after-year do not materialize, and does NOT relate to the only product that Elysium is selling and has ever sold?
A savvy onlooker would suspect that if a big team of world class researchers can't discover a single thing in four years, maybe they aren't actually doing much research, or maybe none at all.
But a lawyer-onlooker would smell a deceptive trade practice.
The legal standard for false advertising isn't just lying, or making a knowingly false statement. An advertisement is legally deceptive if it is either literally false; OR, even if literally true, the advertisement is still illegal if there was intent to deceive or confuse, OR if consumers are in fact deceived or confused.
I don't know that I have seen any literally false statements from Elysium, other than Elysium's demonstrably false claim (image below) that it was first-to-market with NR, which Elysium inaccurately characterized in court as "inactionable puffing" ("puffery" is the legal term for a permissible lie).
Most of Elysium's written claims, viewed in isolation, are true: Leonard Guarente is a researcher. He is an expert on aging. He is a professor at MIT. He has been at MIT for 25 years.
But if you view them all together, along with the visuals, I think most reasonable people would be misled, deceived, or confused. They would draw exactly the false conclusion that Elysium apparently intends for them to draw, which is that Elysium's Basis is a product of Elysium's or MIT's scientific research, which it pretty obviously is not:
That capsule does not contain 25 years of Dr. Guarente's
research; it mostly contains Dr. Brenner's research.
There is maybe a tenuous connection between aging research in general and the ingredients in Basis, but there is a very clear, direct, well-documented, and legally recognized connection between Dr. Charles Brenner's research at Dartmouth and Iowa and the ingredients in Basis, and it is THAT relationship that Elysium seems in its marketing materials to be claiming as its own.
A reasonable consumer immersed in Elysium's marketing materials would most likely get the distinct impression that Basis must have come FROM Guarente's Lab, FROM Guarente's research -- because that's literally what it looks like is happening in the ads that claim Elsyium has "discovered" a mechanism of aging and "opened up the potential to intervene."
If those ads are referring to Basis, then Elysium discovered the crucial mechanism by reading Dr. Brenner's research, and Elysium opened up the potential to intervene by licensing Dr. Brenner's patents, and, later, violating those patents.
And those reasonable consumers might reasonably think that Elysium was the best place to buy Nicotinamide Riboside, since Elysium seems to have discovered it and commercialized it and (falsely) claims to have been the first to introduce it to the public, without mentioning that the same ingredients were previously for sale by others, and without mentioning Brenner's lab, which actually did the foundational research -- and published the original research papers -- on the anti-aging properties of the primary ingredient in Basis, nicotinamide riboside.
Product Evaluation
There is another kind of research that Elysium does, though, which is not product testing or product development, but product evaluation.
So, for example, Elysium might say that it has done a study showing the efficacy of the ingredients in Basis, and indeed it has.
However, there are literally hundreds of scientists studying the efficacy of nicotinamide riboside and pterostilbene. Elysium is not a big player in this research. Like less than 5% of the research. Or maybe less than 2%.
ChromaDex is MUCH more active than Elysium is in studying Nicotinamide Riboside. Not only has ChromaDex done more of its own studies than Elysium has, but ChromaDex has been spurring research at universities around the world in ways that Elysium has not.
And of course the head of ChromaDex's scientific advisory board, Dr. Charles Brenner, discovered the processes that make Basis effective, and has been studying them non-stop for more than a decade.
So if Elysium's talk about research is a claim to have "uncovered" and "opened" this new field by its subsequent investigation of the benefits of NR, then they are once again taking credit that clearly belongs to others.
Risk of Confusion
So are people ACTUALLY confused?
I can't see how they wouldn't be. But for evidence, we need look no further than the testimonials that Elysium includes on its website. The customers that Elysium features sound confused, and Elysium is spreading that confusion.
The customer on the left seems to specifically care that Elysium has in-sourced the science, rather than just marketing someone else's product. The customer on the right leaves the distinct impression that the "original research papers" are "Dr. Guarente's work." We don't know what papers she is referring to, but presumably she is referring to the research on the effects of the ingredients in Basis, which would then be Dr. Brenner's papers, not Dr. Guarente's papers, since Dr. Brenner authored the original research papers on the anti-aging properties of NR.
So overall, I think there is a very strong case to be made that Elysium is claiming credit for the research and discoveries made by others.
Regardless of whether it legally constitutes false advertising (although I think it might well), it is hard to imagine that any consumers exposed to Elysium's advertising would not be misled about what Elysium actually contributed to Basis, which is a great deal of marketing and very little science, other than recognizing and describing the quality of someone else's unattributed discovery.
Summary of the Evidence
First, Elysium takes great pains to make it appear that they researched and discovered the ingredients in Basis, even though they are careful not to exactly say that.
Second, Elysium does not ever credit the actual discoverers of the mechanisms by which Basis works. Without Dr. Brenner's discovery of the NR Kinase Pathway, Elysium's only product would not exist. It is the NR-Kinase Pathway, not Dr. Guarente's knowledge of sirtuins, that makes Basis a viable product.
Elysium does not even acknowledge that the ingredients in Basis are patented, and that Elysium neither holds nor licenses the patents.
So am I saying that Elysium would intentionally take credit for another scientist's discoveries, and commercialize them?
That's the smallest part of what they did.
Elysium also bought IP-protected materials and didn't pay for them, thereby stealing somewhere between $3M-$4M from the the inventor/assignee/licensees. Elysium's bogus excuse for non-payment, from their court filings, is that they lacked the information necessary to calculate the amount due (TAC, paragraph 114).
But Elysium WAS able during this period to calculate the amount it needed to pay ChromaDex's former employee to set up an alternate sourcing mechanism to pirate the patented ingredients.
And Elysium launched bogus attacks before the USPTO in an unsuccessful attempt to destroy the IP when they were unable to license it.
And ChromaDex's Fourth Amended Complaint describes how Elysium stole ChromaDex's confidential information, marked it as "property of Elysium," and used that stolen information that they claimed as their own to build an alternate supply chain, impress investors, and perhaps most audaciously to interact with industry regulators. (FAC, paragraphs 69-111)
So that looks like a lot of theft of science.
Who Done It?
And so we have questions for Elysium's Nobel Laureate Scientific Advisory Board:
Do you condone theft of science? Are you implicated in it?
MIT Technology Review reported that one Elysium Scientific Advisory Board Member, Geneticist George Church of Harvard Medical School, received 0.5% of Elysium's shares for joining the advisory board. And I would bet that the Nobel advisors received even more.
So that's not just a consulting gig -- apparently these guys are owners, entitled to a share of the profits, divvying up the ill-gotten gains.
Here they are: The eight Nobel Laureates who are among the 25 on the Scientific Advisory Board who "Guide the Direction" of Elysium:
Aaron Ciechanover, Daniel Kahneman, Eric Kandel, Martin Karplus, Paul Modrich, Sir Richard Roberts, Thomas Sudhof, and Jack Szostak: I trust that your own discoveries were not stolen from you, nor were your Nobel Prizes built on the uncredited discoveries of others.
So I would ask you the VERY same question that most American citizens are asking right now of the Republican Party: "What do you have to learn to stop supporting and profiting from an unethical enterprise?"
Are you so untroubled by all of this that you will sit on your hands, and pray that a law court doesn't have to explain to you what went wrong with the company that you, not the legal system, are charged with guiding?
Did you not see what happened to Theranos, which collected luminary board members just as famous as you to project unearned legitimacy onto their business, until federal prosecutors indicted Theranos's CEO for fraud two months ago?"
This kind of thing actually happens to well-intentioned luminaries, and according to the court filings it is happening to you.
In case you think I am rash and premature in calling out Elysium's guiding lights, you would be better to call me late to the game.
Eighteen months ago Jeffrey S. Flier, former Dean of Harvard Medical School, directed even harsher language toward Elysium's scientific advisors. Dr. Flier is quoted on January 6, 2017,
“Some of these people may think that they’re being asked to do this because of their deep insights,” says former Harvard Medical School dean Jeffrey Flier, an expert in metabolism. “That’s the part that’s a joke. They're not. They are part of a marketing scheme where their names and reputations are being used.”
A "marketing scheme" (Dr. Flier) based on "scientific theft and piracy" (Dr. Brenner).
But why?
Part 2 -- Turned Down Other Prospects
Ever since I wrote this meditation wondering why Elysium Health does not attempt to do what they said they would do, which was to introduce a new category of science-validated dietary supplements. I have wondered why they never even attempted to do that, right from the start. It seemed like a good business idea to me.
The key to that puzzle may also be hidden in the ACS article, which reports that Dr. Brenner and Dartmouth "turned down other prospects" when they chose ChromaDex as their commercial partner to take nicotinamide riboside to market.
We don't how ChromaDex ended up licensing the Dartmouth NR patents.
But the timeline is very curious.
The patents were applied for in 2004, and 8-10 years later ChromaDex licensed the NR production patents in 2012, and the NR formulation patents in 2014. I can't tell what happened in between -- it looks the patents were granted in 2006, and then subsequently modified. But what else happened during those years?
The story starts in 2007.
Supplement manufacturer Shaklee seems to have been involved with NR in 2007. According to Dartmouth's website, Shaklee paid for something involving NR -- presumably Shaklee's interest would have been with the nutritional supplements patent.
But look at the disclosure statement in this research paper published in January, 2007:
It says,
"Charles Brenner is inventor of intellectual property related to nicotinamide riboside kinases and uses of nicotinamide riboside. The intellectual property is owned by... Dartmouth College, and...licensed by Sirtris Pharmaceuticals, a firm for which Charles Brenner serves on the Scientific Advisory Board."
Some dots just connected!
So Sirtris had actually licensed at least one of the NR patents -- presumably the pharmaceuticals patent. And guess who else was on Sirtris' scientific advisory board at about the same time as Dr. Brenner -- none other than Dr. Leonard Guarente!
So what does that mean?
Well, we know from Wikipedia that Sirtris was founded in 2004 by David Sinclair and others, to focus on the activation of sirtuins for anti-aging, and that research into sirtuins "began in the laboratory of Leonard P. Guarente where Sinclair worked as a post-doc before starting his own lab."
But while Sirtris was focused on Resvertrol, Dr. Brenner was focused on Nicotinamide Riboside. In April, 2008, just a few months after Dr. Guarente joined Sirtris' Scientific Advisory Board, GlaxoSmithKline bought Sirtris for $720M.
But Resveratrol lacked bioavailability when orally ingested, and in any case was not a sirtuin activator.
In 2013, GSK shut down Sirtris, but apparently continued Sirtris's work on Sirtuin activators. Sirtris's "development candidates were absorbed into GSK, where research and development continued. At that time, GSK/Sirtris' lead candidate was SRT2104, described as a 'first-generation sirtuin-activating compound.'" (still Wikipedia)
Which leaves us with a mystery. Why didn't Sirtris and GSK continue their anti-aging research with nicotinamide riboside, which Sirtris had already licensed?
I don't know.
I doubt there is any way to see the license from Dartmouth to Sirtris. But I think the odds are very good that either (1) it was a time-limited license -- for example, maybe Sirtris and its successors had a certain amount of time to commercialize NR or the rights would revert to Dartmouth -- and Sirtris failed to act, or (2) There was a change-of-control provision in the license, so that either when Sirtris was bought by GSK, or when Sirtris was dissolved by GSK, the patent rights reverted to Dartmouth.
I think that one of those scenarios is much more likely to be true than that GSK or Sirtris did not recognize the anti-aging value of NR. Why? Because Dr. Brenner and Dr. Guarente served together on Sirtris's scientific advisory board -- NR's emerging properties, including sirtuin activation, would not have been undiscussed or overlooked.
So the scenario I am imagining is that for one reason or another, Guarente, Sinclair, and/or Sirtris lost control of NR, and for some other unknown reason Dartmouth chose to license the NR patents to ChromaDex.
Did that happen because the former Sirtris parties were uninterested in NR or because they were not paying attention? Almost certainly not, because the '807 and '086 patent licenses were announced by ChromaDex in June, 2014, and Elysium Health was founded in -- guess what? -- 2014, and immediately sought to license the NR patents from ChromaDex.
So now let's go back to a part of Dr. Brenner's quote that we reproduced at the top of this article:
He and Dartmouth turned down other prospects, he says, to choose one they felt was ethical and rigorous. To Brenner, that means a partner who pays for research proving that the substance is safe for people, follows up on potential health findings, and does not make unproven health claims.
Holy Moly. So what are the odds that Elysium or someone related to Elysium wished they had recovered the apparently reverted patent rights but failed to do so?
It seems to me that the odds are very high, because (1) the Dartmouth license to ChromaDex, (2) the founding of Elysium Heallth, and (3) ChromaDex's NR supply agreement with Elysium all occurred contemporaneously. ChromaDex announced the Dartmouth patent license on June 3, 2014, and the Niagen Supply Agreement between Elysium and ChromaDex was effective even before that, on February 3, 2014.
So if Elysium was a spurned bidder to license the Dartmouth patents, how conceivable is it that, as ChromaDex claims in its court filings, that:
...Elysium was founded with the specific goal of wrestling control of NR from ChromaDex...
I think that scenario is a LOT more likely if it turns out that Elysium-associated parties originally had control of the Dartmouth patents through Sirtris, then lost control somehow, then tried to regain control, but were foiled in that attempt, and immediately set up a three-year relationship with ChromaDex that had no right of renewal.
Now, those facts COULD support an entirely benign set of intentions and actions, which is what Elysium claims in its court papers when it laughably calls itself an "exemplary customer."
But, as we explored here, Elysium's actual observed behaviors, as revealed through litigation discovery, are more consistent with ChromaDex's allegation of a "nefarious plan" right from the start.
The suggestion in the ACS article that Elysium might have been a scorned suitor for the Dartmouth Patents reveals a possible contemporaneous motive for the nefarious plan, especially since, as Elysium alleges in its Third Amended Counterclaims, Elysium found ChromaDex's licensing terms "onerous" and "could not meet" them. (TAC paragraph 48)
Perhaps Elysium, right from the start, never intended to meet the licensing terms -- at least not for long.
UPDATE: 8/26/2019
Added an image showing an uncredited Brenner diagram that Elysium used in an ad and on its website, (see image below), plus minor changes to scientific descriptions to increase accuracy (e.g., more problems with resveratrol than I initially described, and clarification that NR functions to increase NAD metabolites and not simply activate sirtuins).
https://web.archive.org/web/20150207081609/http://www.elysiumhealth.com/blog/why-now-the-intersection-of-research-and-technology