We now have Elysium's Answer to ChromaDex's patent infringement complaint in Delaware. You can read it here:
We also learn that Foley will be handling the patent infringement defense. Foley has been at Skadden's elbow from the start, so they are very familiar with the dispute.
If I had to pit IP law firms against each other in a Fantasy Litigation League, I would expect Covington & Burling and Haley Giuliano to basically crush Foley.
Which is not to say that Foley is a bad firm, because anyone would tell you that Foley is a very good firm (unless they had read Elysium's Tenth Affirmative Defense to Patent Infringement, see below, in which case they would concededly be scratching their head about Foley), but it's just that ChromaDex's counsel, Covington & Burling and Haley Giuliano, are not just major leaguers, they are legal All-Stars and World Series heroes.
Normally we don't expect to learn much from pleadings besides general denials. We have to wait for the dispositive motions to discover WHY Elysium thinks it is not infringing the patents whose numbers it used to stamp on its bottles.
And, as expected, this answer doesn't shine too much light.
But a few interesting tidbits can be gleaned.
In paragraph 23 of its complaint, ChromaDex includes this allegation:
Elysium continues to promote and market its BASIS® dietary supplement with reference to the results of clinical trials and studies conducted using BASIS® formulated from ChromaDex-sourced NIAGEN® NR.
Elysium's answer to paragraph 23 includes this:
Some of these clinical trials were conducted using BASIS® product that was made with NR supplied by ChromaDex and some were conducted using BASIS® product that was made with NR supplied by a different supplier.
I think this might turn out to be relevant in the New York litigation, in which ChromaDex asserts in paragraphs 54 & 55 of its complaint that Elysium associates Mystery Basis with studies that were in fact conducted using ChromaDex's products.
In the Affirmative Defenses, we get a preview that Elysium will be claiming invalidity, non-infringement, and patent misuse.
Elysium's Tenth Affirmative Defense, Unclean Hands, warrants separate treatment for outrageousness. Here is what Elysium says:
In the California Litigation, ChromaDex has sought to have Elysium’s patent misuse counterclaim dismissed on the grounds that there is no actual controversy between ChromaDex and Elysium related to potential patent infringement litigation. In particular, ChromaDex asserted that it had not accused Elysium of patent infringement, had not taken any actions to imply such a claim, had not made plans to assert that Elysium’s BASIS® product infringes ChromaDex’s patent rights, and had not taken any affirmative action to enforce its patent rights against Elysium. In view of its representations to a Federal Court in California that it does not accuse Elysium of infringing the asserted patents, ChromaDex cannot seek to enforce the asserted patents against Elysium in this Court. (emphasis added)
ChromaDex's statement in California that it was not currently asserting an infringement claim does not prevent it from later deciding to assert an infringement claim. There's no estoppel, no waiver, no detrimental reliance, no nothing unclean about suing on your own schedule within the limitations period. Elysium is telling us that you can only sue an infringer on the infringer's preferred schedule? What kind of law schools is Foley recruiting from?