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  • Writer's pictureShelly Albaum

Joint Statement in Delaware

Judge Colm Connolly asked the parties to provide a joint statement reporting whatever happened in California -- presumably His Honor was looking for the resolution of the Patent Misuse issue and a trial date. He gave the parties until today to file their joint statement, which they did. You can read it here:

The joint statement is a mix of boring and troubling.

The boring part is that there isn't really any news to report to Judge Connolly. A trial date is set, and the relevant motion for summary judgment (Patent Misuse) was denied.

ChromaDex reiterates its prior argument in support of the lift stay motion, and Elysium reiterates its prior argument in opposition to lifting the stay. Only both parties have much less space than they used in their original briefs, so we just get inadequately grounded highlights of prior argument, instead of new or better arguments.

The troubling part is that the parties are arguing from different facts. Elysium says that the CAFC might eliminate both patents; ChromaDex says that's impossible. ChromaDex says Judge Carney cast grave doubt on the Patent Misuse claim; Elysium says he did not. ChromaDex says it suffers severe prejudice from the continuing delay of the patent infringement case; Elysium says that because ChromaDex didn't file it as early as it might have, then ChromaDex can wait forever.

I am very tired of reading Elysium's specious arguments. Elysium trumpets as a "significant development" that oral argument has been scheduled before the CAFC on March 5. I'd love to know why that matters. There won't be a ruling at oral argument; there won't be a ruling until some unknown number of months after oral argument. It is not a significant development that a ruling from the CAFC is some unknown number of months away; it already was. Elysium's reprisal of its prior positions is especially specious, given that (1) Elysium's arguments before the CAFC have already been rejected by the most sympathetic tribunal that will ever hear them; (2) The underlying arguments before the CAFC are specious in themselves; and (3) Despite Elysium's assertion that the '807 patent is somehow in play, it is not. The Delaware Court will have to hear those arguments in the first instance because the PTAB rejected them and there is no appeal from a PTAB rejection.

However, the nice thing about this Delaware joint statement is that two of the attachments are the transcripts from the January 13 and January 21 hearings before Judge Carney. Each transcript is gruesome in its own way, and they will warrant some further analysis, but in the context of the California case, not the Delaware case, so that means a different blog post.

But until I get to that, for those who, like me, follow the litigation far too closely, here are the transcripts in question. I'll analyze them this weekend.

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