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  • Writer's pictureShelly Albaum

Elysium Moves to Amend Invalidity Contentions

So much drama.

So Elysium asked Judge Connolly in Delaware in the ChromaDex-Elysium patent infringement suit (not to be confused with the Grace-Elysium patent infringement suit also before Judge Connolly in Delaware) -- I said, Elysium asked Judge Connolly for permission to amend its invalidity contentions. You can read the request here:

We've never seen the Elysium's Invalidity Contentions, so we don't know what they are. But now know that whatever they are, Elysium wants to add one more.

And the one more they want to add is a prior art invalidity contention.

Specifically, Elysium now contends that US Patent Number 5,736,529, from 1998, relating to Use of NAD-Related Compounds in the Treatment of Neural Trauma to Inhibit Neurodegeneration anticipates the Dartmouth patents and renders them obvious by revealing that nicotinamide ribonucleotide, an NAD precursor closely related to nicotinamide riboside, can treat certain neural conditions. The lead inventor is Dr. James Adams.

I venture no opinion on whether it is true that the '529 patent (or "Adams Patent") in fact would render Dartmouth's '086 and '807 patents obvious, even if it did disclose oral compositions containing NAD-related compounds. It doesn't seem obvious to me that disclosing one "NAD-related" compound anticipates or makes obvious all of them.

I would note, however, that even if it were true, Elysium would seem to have multiple hurdles to asserting that argument in this case.

First, my understanding is that all prior art arguments based on published studies, including prior patents, had to be raised in the Inter Partes Review proceeding, and thus are precluded in this lawsuit as a matter of law if they could have been raised in the IPR. This is called "IPR Estoppel."

Second, even if this prior art argument were permitted, Elysium is late to the table because they already provided their invalidity contentions, and this wasn't one.

To excuse their delay, Elysium tells a story that will be interesting to anyone following the melodrama of this lawsuit, although I don't know if it has any legal significance.

Elysium says, "When Elysium spoke to Dr. Baur when it was preparing its invalidity contentions this spring, it became clear that Dr. Baur did not wish to serve as a testifying expert in this litigation. Thereafter, Elysium commenced a search for a new testifying expert."

Elysium also says, "Elysium first learned of the Adams patent during an interview of Dr. Adams himself this summer, which occurred after the service of Elysium’s invalidity contentions on May 29. Elysium reached out to Dr. Adams as a candidate to replace the expert Elysium used in the IPR proceedings, Dr. Joseph Baur."

Elysium also suggests, although perhaps stops short of explicitly asserting it, that the reason Dr. Baur decided to no longer work for Elysium is because Dr. Baur was intimidated by Dr. Brenner's Twitter tweets, in which Dr. Brenner criticized Dr. Baur for participating on Elysium's behalf.

I can think of other possible reasons why Dr. Baur might have chosen not to continue with Elysium, but we don't know for sure. I don't even know whether Dr. Baur is capable of being intimidated by a tweet. My understanding was that professors actually criticize each other's work a lot. And Dr. Brenner's intent may have related to professional ethics, which is certainly a matter that professionals ought to discuss.

Be that as it may, Elysium seems to be arguing that the reason it was late to discover this prior art was because of Dr. Brenner's bad behavior. But I can't quite trace the logic of the argument. Elysium should instead by thanking Dr. Brenner, because if Dr. Baur had stayed on the case, then they would never have gone searching for Dr. Adams, and therefore would never have learned about the Adams patent.

But if Dr. Brenner's tweets didn't cause any delay to Elysium, but instead actually helped Elysium, then how is that behavior relevant to this motion?

I can easily imagine a court saying that the rule is pretty clear that you have to raise all our prior art and obviousness challenges in the IPR, and Dr. Brenner didn't prevent you from doing that. The only thing that prevented you from doing that was that you were using "nicotinamide riboside" as a search term, instead of "nicotinamide ribonucleotide," and you have no one to blame for that but yourself. So allowing this prior art into the proceeding would undo the central purpose of the estoppel and eliminate judicial efficiency.

But maybe the IPR estoppel doctrine is in flux and requires interpretation.

We'll know more when we see ChromaDex's response.

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