A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Inducement

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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 …

Judge Burke's exacting standards regarding the sufficiency of pleadings in a patent case were on display in a recent R&R, in which he recommended dismissing indirect and willful infringement claims. This ruling demonstrates that although plaintiffs are not required to prove their case as the pleading stage, they are well advised to bolster their complaint with allegations that link the elements of their claims to specific facts.

The key passages of the 24-page R&R in Midwest Energy Emissions Corp. v. Vistra Energy Corp., C.A. No. 19-1334-RGA-CJB concern what makes an infringement claim "plausible" under the Twombly/Iqbal standard.

Pill Bottle
Sharon McCutcheon, Unsplash

Judge Andrews today granted a rare Rule 12(c) motion in an ANDA action, entering judgment against the plaintiffs on their inducement claim based on the pleadings alone.

The method claim at issue requires administering a drug "from about 3 hours to about 1 hour" before a colonoscopy.

The accused product's label includes instructions to administer the drug "start[ing] approximately 5 hours prior to [a] colonoscopy," and then to "drink at least three 8-ounce cups . . . of clear liquids . . . at least 2 hours before" the procedure.

Judge Andrews held that those allegations—even if true—cannot show inducement of infringement, even if in practice some amount of infringement would occur. …