Shelly Albaum
Nov 16, 2019
Elysium's brief in opposition to ChromaDex's motion to lift the stay in Delaware and to let the patent infringement action proceed was due today, and here it is:
Elysium says, "If the California court finds that ChromaDex engaged in patent misuse and declares the two patents asserted in this Delaware action unenforceable, immediate dismissal of this action will be required." That is not true. For that to be true, the Court would have to find that ChromaDex is currently engaging in an ongoing patent misuse, not that it engaged in the past, because if there has been a purge, then the patents would not be unenforceable.
Regardless of the purge issue, of course, it is also unlikely that an ongoing patent misuse will be found, for a different reason, which is that there obviously was no misuse in the first place, and therefore there was nothing to purge.
Elysium also argues that the Judge Connolly has reserved the right to extend the stay based on the CAFC proceeding. I don't know why he would do that, unless someone can explain why the infringement argument is different between the two patents. The infringement damages, at least, are the same regardless of which patent was infringed, and there would be at most one extra claim to construe, so it would be perfectly economical to proceed with both. In any case, the current stay order only mentions the California case; no additional stay has been ordered.
Elysium engages in misleading rhetoric again when it accuses ChromaDex of using the stay motion as a public relations tool, because Rob Fried on last week's investor call encouraged listeners to "read the detailed accounts of [Elysium's] misdeeds in...[ChromaDex's] recently filed Delaware brief." What Elysium fails to tell the Court is that Rob Fried has urged listeners to read the publicly available court filings in every investor call that I can remember, at least for the last year, and so Fried's comments do not support Elysium's conclusion that the lift stay motion was made for an ulterior motive.
Elysium then goes on to spend pages on the irrelevant PTAB/CAFC proceeding, repeating its false and misleading claim from the prior brief. Elysium says that because it abandoned its cross-appeal, "Dartmouth thus conceded that the inventions described in claims 1, 3, 4, and 5 of the ’086 patent were disclosed in Goldberger’s publications nearly 100 years ago."
That is simply not true. The effect of Dartmouth's abandoning its appeal is indeed to make the judgment final, but it does not count as a concession or an admission of its opponent's underlying argument; it only means that Dartmouth doesn't want to fight about it -- perhaps because that would be REALLY EXPENSIVE, a justification that you would think Elysium and Baker Hostetler might readily comprehend. Anyway, even a first-year law student knows that the effect of a final judgment is not to concede the merit of your opponent's arguments, and so does Judge Connolly, so this is just low-rent grandstanding -- which, given the abundance of Lexis cites in the brief, is what I would expect.
I find strange Elysium's argument that if a delay would not have prejudiced ChromaDex two years ago, then no subsequent delay could prejudice ChromaDex. Another baseless assertion.
One piece of good news from this brief -- Elysium says that the CAFC expects to hold oral argument as soon as January 2020. This is couched as a reason to keep the stay in place, because the CAFC matter will be resolved as soon as January 2020. Here is Elysium's exact quote: "...the Federal Circuit has already indicated that it plans to hold argument as early as January 2020."
I got my hopes up at that, until I went to read what the Federal Circuit actually said:
The Court asked for arguing attorneys to advise "of any scheduling conflicts during the upcoming court session months: January, February, March, April, May, and June."
If that is the communication Elysium is referring to, then it is misleading to say "the Federal Circuit has already indicated that it plans to hold argument as early as January 2020" without adding, "or at late as June 2020."
Very bad.