It’s a great question, and I think there is significant peril, but I think the peril is slightly hidden. It would probably be helpful to an infringement claim to know more about Elysium’s supply chain, and it certainly exposes Elysium’s supplier, and clarifies remedies (e.g., whether ITC exclusion is available),
But it’s not really necessary for ChromaDex to assert an infringement claim. One of the ChromaDex patents is a formulation, and this formulation of Mystery Basis is known, so ChromaDex is free to bring an infringement claim if it thinks Elysium is infringing. Depending on what the other patents say, more information might lead to more infringement claims.
But I think the greater peril to Elysium would be if Discovery reveals that they already were planning for Mystery NR before they placed their big order. If that were true, then it would undercut the story that Elysium sought Mystery NR because ChromaDex cut them off, but instead would support the story that Elysium was planning this all along, which in turn supports ChromaDex’s fraud claims.
The two parties are telling completely different stories about “what happened,” and if the facts tend to show that Elysium is inaccurately describing what went on, their litigation position is going to be very significantly weakened.
However that turns out, Elysium probably won’t be able to avoid Discovery of Mystery NR simply by dropping the Patent Misuse claim, though, because ChromaDex offered five different justifications for needing to know about the alternate sourcing of Mystery NR. One was enough, so the Magistrate Judge only ruled on the one. But if that Patent Misuse claim were some other way made irrelevant (e.g., by Elysium dropping the claim or by Judge Carney reversing the Magistrate Judge), then Elysium would still need to defeat all four remaining arguments for discovery, none of which relied on the Patent Misuse claim. Elysium’s chances of that are not great.
