CV Sciences Inc (CVSI)

[ap17]

The patent "pending" question, well answered by our CVSI attorneys.
Red bold for our enjoyment.

Determination of Defendant’s Motion to Dismiss turns almost entirely on a single,
Case 2:18-cv-01602-JAD-BNW Document 46 Filed 05/17/19 Page 20 of 22

DEFENDANTS’ OPPOSITION TO MOTION TO STRIKE – 16
CASE NO. 2:18-CV-01602-JAD-PAL
straightforward question: Was it fraudulent for Defendants to refer to CVSI-007 as “patentpending,” “proprietary,” and “patent-protectable” after the USPTO issued its “first” and “final”
rejections and CVSI’s appeal was pending? The statutory regime demonstrates that a patent
application can remain pending long after such “rejections” based on a multi-step resubmission,
amendment, and appeals process. Federal courts have recognized this process in case law.
The USPTO’s own website shows that the patent is pending to this day, and such information was
publicly available during the entire Class Period. The documents Plaintiff cited in his Complaint as
containing the purportedly “misleading” statements also contain forward-looking statements that
are non-actionable and subject to the statutory safe harbor as a matter of law. For all of these
reasons, the emphatic answer to the question posed above is “No.” Even if Plaintiff could
overcome all of these deficiencies, it would still be the case that the vast majority of purported
“class members”—those who purchased shares prior to August 8, 2018—cannot demonstrate
damages as a matter of law under the PSLRA damages cap.
For all of these reasons, there would be no use for the Court to convert Defendants’ Motion
to Dismiss to a motion for summary judgment or to permit discovery. All relevant legal issues are
properly before the Court.
III. CONCLUSION
For these reasons, Defendants respectfully request that the Motion to Strike be denied in its
entirety.
DATED: May 17, 2019 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
By:
Terry A. Coffing
S. Todd Neal
Eric A. Plourde
Attorneys for Defendants
CV Sciences, Inc., Michael Mona, Jr.,
Joseph D. Dowling, Michael Mona, III