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Interesting opinion from Judge Burke today on indirect infringement allegations, and what constitutes an "active step" to encourage the direct infringement.

The defendants in Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del. Jan. 12, 2023) (Mem. Order) sold a sort of refined coal that was a necessary agreement in an allegedly infringing process performed by power plants. They moved to dismiss the complaint for indirect infringement, arguing that, while they knew it was likely to be used in an infringing manner, they did not communicate with the end users in any way that actively induced infringement. I.e., they did not take any active steps.

Judge Burke denied the motion to dismiss finding that the sale was the only active step required:

Defendant’s affirmative act of providing the refined coal can reasonably be seen as a way of encouraging (or causing or aiding or influencing) the power plants to use activated carbon. It is a way of making it easier for those power plants to infringe (since the plants need the refined coal in the first place for infringement to happen). And it is a way of communicating to those power plants, in a non-word based manner, Defendants’ intent and hope that infringement will thereafter occur.

Id. at 5-6.

This decision was heavily motivated by the facts of the case, wherein, given the set-up of the power plants and the regulatory scheme they operated under, infringement was essentially assured once they received the necessary coal. Still, it'll be a case for plaintiffs going forward that I expect to see cited pretty frequently.

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