ChromaDex: Being Unsuccessful is Not ‘Exceptional’ Conduct

Disclosure: The author represented Dartmouth and ChromaDex in their 2023 appeal.

We live and practice in a time when it may seem to some patent litigators that it would border on malpractice to not move for attorney fees after any case is won. You don’t ask, you don’t get, right? What do we have to lose? The recent U.S. Court of Appeals for the Federal Circuit decision in Chromadex v. Elysium Health serves as a helpful reminder of the seemingly obvious notion that not all patent cases we win (or, for that matter, lose) are “exceptional.” And it suggests that overreaching in seeking fees may itself come with some costs.

The Road to Appeal

Losing a patent case is a hard pill to swallow for any litigant, large or small. A losing defendant might be enjoined from selling a successful product, or socked with a money judgment, or both. A losing plaintiff may be stuck with an unwanted competitor or may lose its monopoly altogether.

So, it is not surprising that companies might choose to bring in legal reinforcements for an appeal, either as a second set of eyes or perhaps to handle the appeal. Many years ago, I had the good fortune to be the recipient of such help when a client of mine was held to infringe by a jury. My new colleagues helped me put together a more compelling appeal than I might have managed on my own, which proved to be a resounding success.

Many years later, I was part of a team hired to appeal a judgment in a case we hadn’t handled at the district court. The clients were ChromaDex, Inc. and its licensor, Dartmouth College. They had sued a company called Elysium Health for infringing two patents on dietary supplements. The district court had held the patents invalid on summary judgment for being directed to ineligible subject matter, specifically a “product of nature,” under 35 U. S. C. § 101. Our team, which had no involvement in prosecuting the patents or litigating the infringement action, briefed and argued the appeal, but in 2023, the Federal Circuit affirmed. ChromaDex, Inc. v. Elysium Health, Inc., 59 F. 4^th 1280 (Fed. Cir. 2023).

Although my team’s involvement in the case had come and gone, I vaguely recall hearing that Elysium had moved for attorney fees. But I was certainly unaware that Elysium had been awarded in excess of $9.1 million in fees until October 30, 2026, when I learned that the Federal Circuit had reversed that fee award. ChromaDex, Inc. v. Elysium Health, Inc., No. 2025-1227, 2026 U. S. App. LEXIS 33272 (Fed. Cir., Oct. 30, 2026).

ChromaDex’s Position was Not Foreclosed by Myriad

Elysium’s motion for fees landed at a time when the patent community was still wallowing in the aftermath of Octane Fitness, in which the Supreme Court had held in 2014 that a patent case was “exceptional” so long as it stood out from others regarding the substantive strength of a party’s position. Following that decision, it seemed like every concluded patent case was followed by a motion for attorney fees. If anything “stood out,” it was the rare case where fees were not requested.

In the first paragraph of its decision on fees in ChromaDex, the Federal Circuit took note of the Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. 576 (2013), and the fact that “[t]he district court agreed with Elysium that Myriad specifically decided the particular patent-eligibility issue in this case….”  This was viewed as reversible error and an abuse of discretion.

The Federal Circuit noted that ChromaDex had argued, among other things, that the present case was more analogous to a more recent Federal Circuit decision, Natural Alternatives Int’l, Inc. v. Creative Compounds LLC, 918 F. 3d 1338 (Fed. Cir. 2019), than it was to Myriad. This had required the courts to work through several issues, though in the end Chromadex’s position was found “unpersuasive.”

As the Federal Circuit phrased it, in granting Elysium’s motion for fees, the district court had grounded its decision that the case was “exceptional” on the notion that Myriad was “the beginning and the end of the patent-eligibility analysis” and it “completely foreclosed” ChromaDex’s position. The Federal Circuit disagreed, finding that ChromaDex’s arguments went further than Myriad, “requiring additional, meaningful analysis.” It noted that “[e]valuating the merits of ChromaDex’s position required working through several distinct considerations, beyond just Myriad….” It concluded, “we do not view this case as open and shut in light of Myriad.”

And this 2026 conclusion came from the same panel of three Federal Circuit judges that had ruled against ChromaDex on the merits in 2023. One cannot help but wonder whether one or more members of the panel now have second thoughts about affirming the grant of summary judgment against ChromaDex on these same issues.

I suspect all of us are accused, from time to time, of overstating a position, and sometimes those accusations may be justified. Perhaps there is something like a Newton’s Third Law of litigation: An overstatement may have an equal and opposite reaction. There may be tangible and intangible costs associated with overstating one’s position.

The ‘Costs’ of Asking

And speaking of costs: Rule 39 (a)(3) of the Federal Rules of Appellate Procedure makes clear that barring a direction to the contrary, a successful appellant (such as ChromaDex) is entitled to recover its costs. And Rule 39(a) of the Federal Circuit Rules of Practice makes clear that an order taxing costs need not appear in the court’s decision. And yet, the Federal Circuit thought it necessary to expressly add to its opinion, “Costs to Appellant”—i.e. ChromaDex.

For those not familiar with federal litigation, “costs” are not the same as attorney fees. Costs on an appeal are basically reimbursement for the expense of printing multiple copies of briefs and the joint appendix.  Think four or five figures, not seven.

The appellate costs to which ChromaDex will likely be entitled will be a tiny fraction of the $9.1 million in attorney fees that Elysium will not be collecting. Still, I would hate to be the person who has to answer this question: “Are you saying that we now have to pay them?”

Image Source: Deposit Photos
Author: zimmytws
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