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  • Writer's pictureShelly Albaum

Scheduling Order in Delaware

So last week the parties submitted a proposed scheduling order in which they agreed on almost nothing, and Judge Connolly sent them back to the drawing board. Today they submitted a proposed order about which there are no disputes.

You can read the proposed order here:

We'll cut to the chase. The proposed schedule closely follows the timeline that Elysium proposed, and a five-day trial will be held the last week of September in 2021, so 18 months from now.

We can conclude that ChromaDex's attempt to accelerate the proceedings did not work. Perhaps the same judge who sat on this case for no reason for 17 months signaled last week that he wasn't in any rush to proceed.

But we should just be glad the case is in motion and that we have a trial date.

So what's next?

The next big date is April 17. That when ChromaDex's Infringement Contentions will explain to Elysium why ChromaDex thinks that Mystery NR infringes its patents.

Even more interesting would be to see Elysium's Invalidity Contentions on May 29, which would tell us the arguments Elysium intends to make as to why the patents are invalid. We've already seen Elysium's prior art invalidity arguments fail before the PTAB and CAFC, but maybe Elysium has some more arguments. Thanks to recent case law, invalidity arguments based on patent ineligibility are likely to be weak.

I would also be eager to see Elysium's non-infringement contentions -- the reasons why they think that Mystery NR does not infringe ChromaDex's patents. I imagine we would suffer lexical torments around the words "composition," "in combination with," and "admixture" in the '807 patent much as we have already suffered through the word "isolated" in the '086 patent.

I use the conditional tense, though, because it is not obvious how we are going to get to see these things. I can't find a place in the scheduling order where Elysium must respond to ChromaDex's infringement contentions with its own competing non-infringement contentions, although probably it has to occur. Different courts handle patent matters differently, and I don't understand how this is going to happen in Judge Colm Connolly's courtroom (Delaware seems not to have uniform patent rules for all its judges).

Worse, when I examine the dockets for other patent cases before Judge Connolly, I see notice-of-service of infringement and invalidity contentions, but I do not see the underlying documents themselves disclosed in the docket.

So we'll have to find out as we go along what are the protocols for public access, and, if they be unfavorable, what we can do about it.

In the meantime, set a reminder for a patent infringement trial about eighteen months from now.

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