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  • Shelly Albaum

Elysium Has Not Yet Answered the Grace Patent Infringement Complaint


Federal Rule of Civil Procedure 12(a)(1)(A)(i) says a defendant has 21 days to answer a complaint:


Rule 12. Defenses and Objections...

(a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint...(emphasis added)

On Friday August 21, 2020, Grace filed a patent infringement complaint against Elysium. A summons was issued the same day. The summons looks like this:



Assuming the summons was served by Grace on Elysium the same day, then Elysium's answer should have been due yesterday (Friday September 11, 2020), and Elysium would be entering the zone of risk for having a default judgment entered against them.


I have been wondering if Elysium might have a difficulty securing legal representation, and I still wonder that, but a much simpler explanation is possible:


The summons may not have been served.


Grace had 90 days to serve the summons:


FRCP Rule 4(m): "Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time." (emphasis added)


And FRCP Rule 4(l) requires that proof of service be made to the Court.


I don't see any proof of service to the Court in the docket.


And I think we SHOULD see a proof of service in the docket. After all, when ChromaDex sued Elysium for patent infringement on September 17, 2018, the summons was issued the same day, and the summons was returned as executed the following day (September 18), and that started the clock on the answer. Here is what the returned proof of service looked like in the ChromaDex case:



We don't see anything like that in the Grace case docket. We would like to see an entry in the Grace like the one we saw in the ChromaDex case: "Summons Returned Executed"


But we do not see it. So it's a decent guess that Grace has not so far served the complaint within their 90-day window to do so.


Why would Grace file the lawsuit and not serve the complaint?


One reason to do that is to create some space to negotiate a settlement. For example, Elysium and Grace could both avoid all the trouble of the Grace lawsuit if Elysium simply agreed to pay Grace a royalty (and maybe back-royalties), assuming Grace was willing to accept that as a settlement and not try to get any additional relief.


Is something like that going on? I have no idea.


We'll keep watching the docket for a notice of service, or a notice of settlement, or a notice of a motion for default, or an indication that service was waived, or who knows what.


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