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  • Writer's pictureShelly Albaum

Elysium's Reply Brief in the CAFC

Elysium yesterday filed its Reply brief in its appeal from the PTAB's decision that did not invalidate Claim 2 of the '086 patent. You can read the brief here:

We covered Elysium's opening brief here, and ChromaDex's Response here.

I'll have to confess to a bit of Claim Fatigue -- we have been debating the meaning of "isolated" in the '086 patent for two years now. Elysium proposed an unreasonable meaning of "isolated" that would include isolating the milk from the cow. The PTAB rejected it and instead adopted its own interpretation of "isolated."

I was really interested in this appeal, but not because I thought Elysium might someone convince the CAFC that the PTAB was wrong on this issue, but because I thought that Dartmouth (ChromaDex) had a really strong opportunity to revive via cross-appeal the PTAB's decision to invalidate the other four claims.

Instead, Dartmouth abandoned that cross-appeal for reasons we know not, which takes all the suspense out of this proceeding.

My guess is that ChromaDex decided that Claim 2, as interpreted by the PTAB, was sufficient to support whatever future pharmaceutical business ChromaDex might want to build on NR, and so there wasn't a good cost-justification for piling on another round of legal fees to resuscitate claims that would probably just be redundant. Or maybe they thought they'd lose the appeal anyway. Or maybe they don't think there's going to be a big future pharma business on this patent, and instead are counting on some other IP (e.g., maybe something related to NRH) to protect future pharma products.

In any case, they abandoned their cross-appeal, which means that the PTAB's decision invalidating those four claims will not be reversed.

It does NOT mean what Elysium's attorneys say it means in this Reply Brief. Elysium begins its Reply Brief thus:

Dartmouth abandoned its cross-appeal from the Board’s determination that four of the five claims of the ’086 patent are anticipated by the prior art. Dartmouth thus concedes that the inventions claimed in claims 1, 3, 4 and 5 of the ’086 patent were described in scientific publications co-authored by Dr. Joseph Goldberger nearly 100 years ago. More particularly, Dartmouth admits, expressed in the language of the claims, that the processed milk products administered by Goldberger in the 1920s constituted pharmaceutical compositions comprising nicotinamide riboside (NR) in admixture with a carrier, and that these milk products increased NAD+ biosynthesis upon oral administration.

What a pile. This is tiresome posturing. It maybe impresses the client or some onlookers, but it's not true and has no legal effect.

When Dartmouth (ChromaDex) abandoned its cross-appeal from the Board's determination, it did not "concede" or "admit" any fact or legal position. It simply abandoned its right to have that determination reviewed. Elysium's attempt to boot-strap that decision into some kind of confession that the PTAB was right is just bullshit made by lawyers for the consumption of non-lawyers.

I don't feel like reading a bunch of bullshit, so I just skimmed it; we've been over this before. ChromaDex's Response Brief is compelling. In case you want to read Elysium's Reply Brief anyway, I linked to it above.

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