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  • Shelly Albaum

Proposed Scheduling Order in Delaware


The parties submitted a joint proposed scheduling order for the patent infringement case in Delaware. You can read it here:


Joint Proposed Scheduling Order


The parties submitted the proposal jointly, but it's not really a joint proposal, because the parties don't agree on hardly anything -- at least nothing with a date attached to it.


As you would expect, ChromaDex is in a hurry to proceed, and Elysium is dragging their feet. This is more evidence that Elysium isn't in a hurry to vindicate their behavior, no doubt because there is a pretty significant risk that their behavior will not be vindicated.


On the docket, Judge Connolly ordered as follows: "A Scheduling Conference is set for 3/10/2020 at 02:30 PM in Courtroom 4B before Judge Colm F. Connolly. If the parties have no disputes about the scheduling order, the Court will not require the parties to appear at a conference."


The parties obviously DO have disputes about the scheduling order, so Judge Connolly will have to decide what the actual dates will be, and we should learn the outcome shortly after March 10, which is this coming Tuesday.


But presumably Judge Connolly will adopt one side's or the other's approach, or something in between. So that gives us a reasonable guess as to when things will occur.


For example, trial in the case will probably last five days and be held in July 2021 or November 2021, or perhaps some time in between.


Below are all the proposed dates. Notice on the top line that the parties do not EVEN agree on a date for initial disclosures, with ChromaDex requesting March 20 (14 days from now) and Elysium requesting March 24 (18 days from now).


It's a little disappointing to realize that the patent infringement trial is more than a year away. But it is some consolation to know (1) It's less than two years away, and (2) That that will be the end -- the California and New York trials will both be done even before that. The California will be held in May, and the Scheduling Order in New York says that the Joint Pretrial Order is due in August 2020, so trial in New York should occur less than a year from now. (And the PTAB proceeding and FDA-based proceedings are already done.) So there will be nothing left but appeals, and if history is any guide, those might just be opportunities for Elysium to get laughed out of court some more.


So that's progress.


Next we'll see what Judge Connolly does with this.


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