A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Contributory Infringement

I know the title is for the wrong holiday, but I can only work with what the Court provides. If you want something more appropriate, encourage your local judge to issue opinions on murders most foul and revenge from beyond the grave this time next year. There's still time for opinions on disastrous chimney collapses for the holiday season.

Somehow the reindeed ended up looking more evil than the witch
Somehow the reindeed ended up looking more evil than the witch AI-Generated, displayed with permission


Today's case, Midwest Energy Emisions Corp. and MES Inc. v Arthur J. Gallagher & Co., C.A. No. 19-1334-CJB (D. Del. Oct. 26, 2023) (Mem. OP.) has an interesting wrinkle on the distinction between the requirements for induced infringement under 271(b), and contributory infringement under 271(c). The defendants there were all somehow involved in the sales and hauling of coal to various power plants (hence the title). One particular group of defendants was allegedly involved only in the moving of the coal from place to place, but was not alleged to actually make any sales. Accordingly that defendant group (called the "Cert Operations" defendants), moved for summary judgment that they had not induced or contributed to any infringement, despite their logistical role in the process.

Judge Burke granted the motion as to the contributory infringement claims but denied it as to the induced infringement claims, stating:

Plaintiffs’ allegations are that the CERT Operations Companies are liable here because they took steps to “provide” refined coal to power plants . . . —and one can “provide” such coal not only by selling the coal to the plants, but also by playing a role in having the coal delivered to the plants. . . . On this ground then, the Motion is DENIED as to the CERT Operations Companies.

Id. at 4 (cleaned up).

But the Court does not see (and Plaintiffs have not demonstrated) how simply “participating in the operation, production and delivery” of refined coal to a power plant on behalf of a refined coal company, without more, could equate to engaging in the sale of coal from the refined coal company to the power plant. And Section 271(c) requires that these CERT Operations Companies had to have participated in some way in that sales process—a process that involves two parties agreeing to transfer property or title in return for the payment of or promise to pay an agreed-upon price. . . . [P]laintiffs have not demonstrated that any of the CERT Operations Companies advertised the coal for sale, negotiated the terms of sale, collected payment for any sale, received a portion of any sales revenue or in some other meaningful way participated in the actual negotiation and sales process. Thus, summary judgment is GRANTED as to the claims for contributory infringement against the CERT Operations Companies.

Id. at 5-6 (cleaned up).

Its a useful reminder that the language of these two closely related sections is not precisely parallel.

Merry Halloween!

Artist's illustration of one of the parties' briefs.
Artist's illustration of one of the parties' briefs. Carl Tronders, Unsplash

I wanted to call out the interesting quote in the title, which comes from an opinion Judge Noreika issued on Friday granting-in-part post-trial motions in a patent case.

The quote is in the context of a motion for JMOL of no post-suit indirect infringement because the accused infringer didn't encourage users to infringe. The Court was very disappointed in the parties' briefing:

[T]he Court must still address Defendants’ remaining complaint as to indirect infringement. Defendants argue that there was no evidence at trial to suggest that they encourage others to infringe the ’502 and ’386 Patents, which is required for a finding of inducement liability. On this point, …