- 3 -11.
At some time prior to July 17, 2013, Mastix engaged its attorney, Royal W. Craigat the law firm of Ober, Kaler, Grimes & Shriver, P.C. in Baltimore, Maryland, to analyze the‘898 Patent.12.
On or prior to July 17, 2013, Mr. Craig drafted a letter to Nestlé on behalf of Mastix. Mr. Craig sent that letter to Nestlé on July 17, 2013.13.
In the July 17, 2013 letter, Mr. Craig informed Nestlé that Mastix “intends to begin sales of a chewing gum in the United States comprising an effective amount of chitosan for treating hypophosphatemia.”14.
The July 17, 2013 letter further asserted that “to specifically avoid infringementof [the ‘898 Patent], our client’s gum will be packaged with explicit instructions to chew after ameal, not on an empty stomach.”15.
The July 17, 2013 letter further requested that Nestlé “expeditiously determinewhether or not you have any intention to assert the patent against our client” and to “state a non-frivolous infringement basis in sufficient detail to inform our decision.”16.
The July 17, 2013 letter gave Nestlé an August 1, 2013 date by which to respond,absent which Mr. Craig stated that “we shall advise our client to commence sales.”17.
On July 25, 2013, Nestlé responded to Mastix’s July 17, 2013 letter with a letter requesting additional information to enable Nestlé to fully assess whether Mastix’s contemplatedsales would be in violation of the ‘898 Patent.18.
Mastix did not respond to Nestlé’s July 25, 2013 letter.19.
Instead, at least as early as August 8, 2013, Mastix announced the availability of RenaGum.