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  • Writer's pictureShelly Albaum

Dueling Letters in Delaware

Elysium and ChromaDex have both sent letters to the Judge in Delaware regarding the PTABs decision (and ChromaDex issued a press release, too). You can read them here:

ChromaDex's letter says:

Elysium's pending Motion to Stay is predicated in part on its prediction that:

(1) The PTO would invalidate the ’086 patent, and

(2) The PTO would reconsider the term “isolated."

Neither of these predicates now exists.

That is absolutely correct.

Elysium's letter says a stay is warranted because:

(1) The California case is still pending with a Patent Misuse defense

(2) Both parties are likely to appeal the PTAB ruling anyway, and (3) If the CAFC reversed the PTAB's ruling on Claim 2 then the '086 patent will be gone

That is not quite correct.

The problem with Elysium's arguments are:

(1) The Patent Misuse claim, even if it were not "fictional" would still only impact the timing of damages -- it would not obviate the need to determine whether the underlying patent is valid and whether Elysium is infringing.

(2) It's speculative whether the CAFC will hear the appeal at all, and certainly that it would disagree with the PTAB; meanwhile, ChromaDex has claimed ongoing significant business harm. So although it might suit an alleged infringer just fine to string this out forever, that is exactly what the courts are NOT supposed to do.

(3) The problem with Elysium's claim that, "If the Federal Circuit reverses the challenged claim construction of claim 2, the ’086 patent will be removed from this case altogether," is that the CFAC could disagree with the PTAB without taking Elysium's side. In fact, it might prefer ChromaDex's proposed construction, instead. So even a reversal of the PTAB would not necessarily remove the issue from contention in Delaware, contrary to what Elysium told the Court.

By not ruling on the stay motion until after the PTAB's ruling came out, Judge Connolly has already granted a de facto stay, at least in part. That's more than enough. Hopefully the Court will not allow an alleged infringer to game the system indefinitely.

If Elysium believes its own arguments, you'd think they'd be eager to move forward and clear their legal rights.

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