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  • Writer's pictureShelly Albaum

The Balrog's Whip

"As Gandalf faced the Balrog, he proclaimed, "You cannot pass, flame of Udûn!", and broke the bridge beneath the Balrog. As it fell, the Balrog wrapped its whip about Gandalf's knees, dragging him to the brink. As the Fellowship looked on in horror, Gandalf cried "Fly, you fools!" and plunged into the darkness below."

This is the scene that comes to mind when I read Judge Connolly's decision limiting ChromaDex's ability to assert a patent infringement claim alongside co-plaintiff Dartmouth. Even as Elysium plummets to its fiery final destination, it managed to send up a whip to grab at ChromaDex, in hopes that they both might plummet and die as one.

But Gandalf did not die; the fight merely moved to a different plane. In the end, the Balrog was defeated and cast down, breaking the mountainside where it fell in ruin, and Gandalf returned as Gandalf the White, stronger than ever, until his task was completed.

Fate has dealt me the gift of a day job sufficiently engrossing that it seriously limits my ability to analyze and blog technical patent law points, as much as I would like to spend my free time that way. Did you notice that I never wrote a new Litigation Summary for 2020 to continue the saga from 2019? That's been true for months, and it will continue to be true into the foreseeable future. So I probably won't get to a serious analysis of Judge Connolly's opinion, and what's wrong with it, until the weekend.

In the meantime, I would commend to you the following ideas:

First, it is not uncommon for District Courts to be wrong, and specifically wrong about Patent Law. A most glaring and recent example was the case of Natural Alternatives International v. Creative Compounds, which we discussed here. In that case, a federal district court in California concluded that health supplements were not eligible for patent protection, because they were natural substances. It took an appeal to the Court of Appeals for the Federal Circuit (CAFC), which handles all appeals nationwide in patent cases, to clarify that health supplements ARE patent-eligible. The Natural Alternatives decision, if it had not been reversed by the CAFC, might just as well have been the death knell to the Dartmouth patents.

It will take another trip to the CAFC to clarify that exclusive licenses to affiliates of the same corporation are still "exclusive" for patent standing purposes. ChromaDex will almost certainly appeal this to the CAFC, and I predict that ChromaDex will win.

I predict that ChromaDex will win because the form of license that Judge Connolly has found destructive of patent rights is actually quite common in the field. I have even found it offered as a best practice form published by people who know about such things. Judge Connolly probably does not realize that he may have just declared open season on hundreds or thousands of patent licenses that use the same form. The Courts don't typically want to interfere with businesses' ability to organize themselves in ways that are legal, typical, and productive. We'll see if amici patent licensees crowd the docket of ChromaDex's inevitable appeal. But the CAFC is capable of bringing sense to the field, and ChromaDex has already won there before.

A direct, immediate (interlocutory) appeal on this issue might take a year. Or perhaps ChromaDex would attempt to proceed to trial and get damages apportioned for both before and after the date that Judge Connolly cares about, and then the CAFC would be able to affirm the larger or the smaller damages amount. The lawyers will figure out the right next steps, and we'll tell you how it goes.

In the meantime, Elysium still has to contend with Dartmouth. Dartmouth's damage claim is much smaller, but Dartmouth's right to enjoin Elysium's use of NR is not smaller. And then after that, Elysium has to contend with Grace, which has already sued Elysium for allegedly infringing three more patents in a case pending before the same judge. And of course Elysium also has to contend with the full power of the California and New York lawsuits, both scheduled for trial later this year, which could amount to quite a bit in damages. So it's not clear that Elysium escapes more alive than the Balrog did.

Meanwhile, ChromaDex (we think) can still rely on its exclusive supply agreements with Grace and Nestle to continue as the only legal seller of the crystalline form of nicotinamide riboside.

So I don't expect anything much to change for ChromaDex, or for Elysium -- even if Elysium were somehow to win before the CAFC, too -- other than an extra year of litigation to blog. Lucky us.

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