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  • Shelly Albaum

Stay Lifted in Delaware


ChromaDex's patent infringement action was cleared to proceed this morning when Judge Connolly granted ChromaDex's motion to lift the stay. You can read the order here:


Order Lifting Stay


ChromaDex sued Elysium for patent infringement in September, 2018. Elysium moved to stay the patent infringement action in November 2018. Judge Colm Connolly granted the stay motion in June 2019, rejecting most of Elysium's argument, but calling it a "close call" whether to await the outcome of the California trial, which was then scheduled for October, 2019. Then the California case got unexpectedly pulled off calendar by Judge Carney. As a result, ChromaDex in November 2019 filed a motion in Delaware to lift the stay, since there was no longer a pending California trial to wait for. Judge Connolly waited for the resolution of the California summary judgment motions, of which he was apprised by the parties on January 30. Based on that, he today lifted the stay.


We don't know why Judge Connolly decided that 15 months was enough delay for ChromaDex's patent infringement case, because he did not write an opinion explaining his decision. However, the odds are good that Judge Carney's statements casting doubt on the viability of Elysium's patent misuse claim played a role.


In the parties' joint statement to the Court, ChromaDex offered Judge Connolly this quote from Judge Carney:


[M]y response to the patent misuse is maybe there were some things that shouldn’t have been done. I know ChromaDex disagrees that anything was improper. But they sure seem like they tried to purge. And as I understand the patent misuse, you’re trying to get them for conduct they did a while ago.


And again, I’m having -- I’m having a little bit of a problem being convinced that there really is an impact on competition by something that happened, which I’m going to assume shouldn’t have happened. But they’ve refunded all the money except to Elysium, as I understand it. And now they’re willing to pay that, but I guess as an offset.


There is no reason for Judge Carney to be "assuming" anything at this stage, because ChromaDex has already shown based on the evidence in the case that there was never any patent misuse.


However, it was apparently enough for Judge Connolly to hear that EVEN IF something bad happened, it still doesn't appear to Judge Carney to constitute an ongoing patent misuse.


Whatever the reason be, we are powerfully grateful that this litigation is now back on track.


By "back on track," we mean that a scheduling conference will be held on Tuesday March 10, although the parties won't have to appear at a conference if they agree on a scheduling order before then. The scheduling order will govern discovery, as well as the pace of the proceedings. Based on prior filings, my guess is that the parties will NOT agree, and Judge Connolly will have to decide how fast the case gets to trial.


When he does, you'll be able to read about it here.


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