I might speak for most ChromaDex shareholders when I say that I was actually shocked by Elysium's press release this morning denying patent infringement.
In the age of Trump, we are hardened to blatant lies and obvious falsehoods shamelessly asserted even from the nation's highest office. It is a full-time dirty job to catalog and debunk each Trump lie. As of last month, the Washington Post's Fact Checker had counted over 4,000 false or misleading claims:
So I thought I was somewhat hardened to brazen attacks on the truth, when Elysium Health issued this magna-whopper in response to being sued by ChromaDex for patent infringement:
I don't know what I was expecting Elysium to say -- probably "no comment on pending litigation" -- they are in a tight spot, having chosen to continue selling a patented product after their license to do so was terminated -- but Jesus Christ I was not expecting this.
There is a horrible, brief stage for any organism as it transitions from life to death, which those unlucky enough to have witnessed it call "death throes" or "death rattle." It involves involuntary convulsions and sometimes incoherent raving as consciousness and its sustaining systems disintegrate. We may be seeing that with Elysium.
Elysium's press release makes two arguments: First, Elysium is not infringing ChromaDex's patents. Second, ChromaDex is a bad company because some people who are accused by the SEC of being pump-and-dump scammers got kicked off of ChromaDex's board more than three years ago.
The second of these lies is the more scurrilous.
But the first is the more important, so we'll just look at that for now.
Are ChromaDex's patent infringement claims (you can read the complaint yourself) "baseless?" Could it conceivably be true that "Elysium Health takes intellectual property rights very seriously and respects the intellectual property rights of others," and "Elysium Health is confident that it does not infringe any valid claim of the patents" and "Elysium trusts that the court will arrive at the same conclusion."
The primary patent in question is 8,197,807, which protects "a composition comprising isolated nicotinamide riboside..formulated for oral administration [that] increases NAD+ synthesis..."
The patent was issued to Dartmouth College in 2006, and subsequently licensed to ChromaDex, which for three years, between 2014-2017, allowed Elysium to sell NR covered by the patent. The contract between ChromaDex and Elysium terminated after three years, in February 2017.
So how can we be absolutely certain that Elysium's Basis infringes the '807 patent? There are four ways to know.
First, we can look at Elysium's own marketing materials, which recite nearly the exact language of the patent claims. This is Elysium's website today:
Basis is "formulation" of "nicotinamide riboside" for "increasing and sustaining NAD+."
Bingo!
Second, we can look at the reasons that Elysium gave in its press release to explain why it is confident that it is not infringing: ... Oops -- there are no reasons. The press release says that Elysium is a good company, and that it is a science-based company, and ChromaDex is no good, and ChromaDex fell in with evil companions, but none of that addresses the question of infringement. The silence is deafening.
Third, we can look at Elysium's own behavior. In July 2017, Elysium filed petitions with the USPTO's Patent Trial and Appeal Board (PTAB) asking the board to invalidate ChromaDex's patents. So far Elysium has probably spent close to a million dollars trying to get Dartmouth's patents invalidated, even though the PTAB dismissed Elysium's petition earlier this year on the grounds that there was nothing wrong with the '807 patent. Why on earth would Elysium spend a MILLION DOLLARS attempting to invalidate Dartmouth's intellectual property if Elysium was not infringing the patents? It does not even pass the straight-face test to suggest that Elysium does not believe it is infringing.
Fourth, the final and most devastating piece of evidence is ON THE BOTTLE:
Elysium stamped on every single bottle of Basis for a number of years the phrase, "Protected Under U.S. Patent Number 8,197,807 / 8,383,086."
So in what universe is ChromaDex's patent infringement claim "baseless?"
I cannot imagine how there could be a stronger claim.
Last year, ChromaDex ended most of its Niagen distribution agreements. All of those terminated distributors simply stopped selling Niagen, and relied on other products instead -- except for Elysium. Only Elysium hired away two of ChromaDex's employees, took ChromaDex's confidential information, and set up an alternate supply chain for the patented ingredients -- you can read more about that here.
So in what universe does Elysium "respect the intellectual property rights of others?"
The Patent Trial and Appeal Board already threw out Elysium's challenge to the '807 Patent (and it also found that Elysium had no reasonable likelihood of completely invalidating the other patent, either). So in what universe, and on what grounds, could it possibly be true that "Elysium trusts that the court" will find non-infringement?
And finally, given that infringement is substantially admitted by Elysium's own website, product packaging, and behavior, and Elysium's challenge to the validity of the '807 patent has already failed, in what universe could Elysium assert in good faith that it "is confident that it does not infringe any valid claim of the patents?"
The Washington Post Fact Checker isn't here to tabulate each and every Elysium lie, and I am sure I don't do it as well as they would. But until the corporate media decides to shine their light-of-truth on this infested corner of the health supplements industry, my analysis is going to have to do.
We are living in the Age of Lies. I would encourage everyone to decry the publication of outright falsehoods.