On 30 October the US Court of Appeals for the Federal Circuit reversed a USD 9,151,133 attorney-fee award that the District of Delaware had granted to Elysium Health under 35 U.S.C. § 285 in ChromaDex v. Elysium (No. 2025-1227). The panel held that ChromaDex's losing patent-eligibility position was not exceptionally meritless, so the case was not "exceptional". The decision is nonprecedential and deals only with fees: the claims already held ineligible stay invalid.
Lost on eligibility, then billed for fees
U.S. Patent Nos. 8,197,807 and 8,383,086, owned by ChromaDex and the Trustees of Dartmouth College, claim oral dietary-supplement compositions containing isolated nicotinamide riboside (NR) that increase NAD+ biosynthesis. NR occurs naturally in cow's milk, but only in trace amounts bound to whey protein, so it is not bioavailable. The district court held the claims directed to a product of nature, and the Federal Circuit affirmed in 2023.
Elysium then sought fees. The district court found that the Supreme Court's Myriad decision had settled the issue, since merely isolating a natural molecule is not patent eligible, and that ChromaDex had essentially ignored it. In 2024 it awarded the full sum, about USD 3.9 million of which was incurred before the Markman (claim construction) hearing.
Myriad was not the whole analysis
The Federal Circuit said exceptionality turns on the substantive strength of a position, not on whether it wins; only an exceptionally meritless position qualifies under § 285. Had ChromaDex relied solely on NR being structurally isolated, its argument would have closely resembled the isolated DNA rejected in Myriad. Its main argument, however, drew on Natural Alternatives: isolated NR can increase NAD+ biosynthesis in a way natural NR cannot, giving the composition markedly different characteristics and significant utility.
Testing that argument meant working through several questions: whether the claims require any specific quantity of NR, whether the increase is attributed to NR, whether NR isolated under the district court's construction must be bioavailable, and the fact that milk raises NAD+ biosynthesis through tryptophan. The case was therefore not open and shut under Myriad, and treating Myriad as dispositive was a legal error and an abuse of discretion. The court refused Elysium's request to remand, reversed outright and awarded costs to ChromaDex.
J&C recommends that patent owners in natural products, dietary supplements and biotechnology who face eligibility risk build their markedly-different-characteristics and significant-utility case early, with test data and expert evidence, because it affects both the chance of winning and the fee exposure if they lose. Defendants seeking fees will usually need more than showing that the other side lost on a precedent: they must show its position was exceptionally meritless.
Source: www.cafc.uscourts.gov
