Case 1:15-cv-00172-LPS-CJB Document 1 Filed 02/20/15 Page 1 of 20 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. _____________
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`
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`BASF CORPORATION and UCHICAGO
`ARGONNE, LLC,
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`
`Plaintiffs,
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`
`
`v.
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`
`UMICORE N.V., UMICORE USA INC., MAKITA
`CORPORATION, MAKITA U.S.A. INC.,
`MAKITA CORPORATION OF AMERICA,
`
`
`Defendants.
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`
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`COMPLAINT
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`Plaintiffs BASF Corporation (“BASF”) and UChicago Argonne, LLC (“Argonne”), for
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`their Complaint against Defendants Umicore N.V. and Umicore USA Inc. (collectively,
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`“Umicore”) and Defendants Makita Corporation, Makita U.S.A. Inc., and Makita Corporation of
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`America (collectively, “Makita”), hereby demand a jury trial and allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This case is in part about Umicore’s and Makita’s infringement of BASF’s and
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`Argonne’s patents related to the chemical compositions of cathode active materials used in
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`lithium-ion batteries. Patent infringement, however, is just one piece of the unlawful conduct
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`Umicore has used to maintain its position as a primary supplier of such cathode active materials
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`in this industry at the expense of BASF. Thus, this case is about Umicore’s willful and knowing
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`infringement of patents as well as the anticompetitive, tortious, and deceptive conduct Umicore
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`has used for its benefit and BASF’s detriment.
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`SONY EXHIBIT 1009
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`2.
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`Argonne manages Argonne National Laboratory (“ANL”) for
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`the U.S.
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`Department of Energy’s Office of Science. Argonne and ANL have developed and patented
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`significant improvements in the field of lithium-ion batteries, including developments relating to
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`the cathode active materials used to improve the characteristics of lithium-ion batteries,
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`including better chemical stability and reduced capacity fade. Two of those patents are United
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`States Patent No. 6,677,082 (“the ’082 Patent”), entitled “Lithium Metal Oxide Electrodes for
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`Lithium Cells and Batteries,” and United States Patent No. 6,680,143 (“the ’143 Patent”),
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`entitled “Lithium Metal Oxide Electrodes for Lithium Cells and Batteries” (collectively referred
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`to herein as the “BASF/Argonne patents”). Argonne is the assignee of those patents, and BASF
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`has an exclusive license to those patents, subject to preexisting license grants (the “Exclusive
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`License”).
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`3.
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`BASF is the world’s leading chemical company, well-known and well-regarded
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`for manufacturing products across a wide variety of industries ranging from plastics to crop
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`protection to oil and gas. In the last several years, BASF has acquired and developed production
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`facilities for manufacturing cathode active materials for lithium-ion batteries. Argonne has now
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`partnered with BASF to commercialize the technology in the ’082 and ’143 patents, granting
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`BASF an Exclusive License under the BASF/Argonne patents in order to further develop and
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`commercialize the cathode active materials technology. BASF has been producing materials
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`disclosed and claimed in the ’082 and ’143 patents for use in lithium-ion batteries and is able to
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`supply those materials commercially on a large scale.
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`4.
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`Despite Argonne’s important developments in lithium-ion battery technology and
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`BASF’s investments in commercializing that technology, Umicore, a rival producer of cathode
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`active materials for lithium-ion batteries, has willfully sought to prevent BASF from entering the
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`market while at the same time selling its own materials that are used to infringe the ’082 and
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`’143 patents. Umicore has conducted its marketing and sales activities knowing that lithium-ion
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`batteries and cathodes incorporating its materials infringe the BASF/Argonne patents. One of
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`the companies importing into and selling products in the United States that incorporate
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`Umicore’s cathode active materials is Makita.
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`THE PARTIES
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`5.
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`Plaintiff BASF Corporation is a Delaware corporation with a principal place of
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`business at 100 Campus Drive, Florham Park, New Jersey 07932.
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`6.
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`Plaintiff UChicago Argonne, LLC, is an Illinois corporation with a principal place
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`of business at 9700 S. Cass Avenue, Lemont, Illinois 60439.
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`7.
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`On information and belief, Defendant Umicore N.V. is a company organized
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`under the laws of Belgium, with a principal place of business at Broekstraat 31 Rue de Marais,
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`1000 Brussels, Belgium.
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`8.
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`On information and belief, Defendant Umicore USA Inc. is a Delaware
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`corporation with a principal place of business at 3600 Glenwood Avenue, Suite 250, Raleigh,
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`North Carolina 27612.
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`9.
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`On information and belief, Defendant Makita Corporation is a company organized
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`under the laws of Japan, with a principal place of business at 3-11-8, Sumiyoshicho, 446-0072
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`Anjo 446-0072 Aichi, Japan.
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`10.
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`On information and belief, Defendant Makita U.S.A. Inc. is a California
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`corporation with a principal place of business at 14930 Northam Street, La Mirada, California
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`90638.
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`11.
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`On information and belief, Makita Corporation of America is a Georgia
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`corporation with a principal place of business at 2650 Buford Highway, Buford, Georgia 30518.
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`JURISDICTION AND VENUE
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`12.
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`The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338
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`for Argonne and BASF’s claims arising under the patent and antitrust laws of the United States,
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`including 35 U.S.C. § 271 et seq. and 15 U.S.C. § 2 et seq. The Court has jurisdiction pursuant
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`to 28 U.S.C. § 1367 for BASF’s claims arising under Delaware’s state statutory and common
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`law.
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`13.
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`The Court has personal jurisdiction over Defendant Umicore USA Inc. because it
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`is a Delaware corporation.
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`14.
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`The Court has personal jurisdiction over Defendant Umicore N.V.1 under Federal
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`Rule of Civil Procedure 4(k)(2) because, on information and belief, it is not subject to
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`jurisdiction in any state’s courts of jurisdiction, and because exercising jurisdiction is
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`nevertheless consistent with the United States Constitution given that Umicore N.V. has
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`sufficient contacts with the United States that relate to the claims in this case. On information
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`and belief, a non-exhaustive list of Umicore N.V.’s contacts with the United States that relate to
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`the allegations in this case include: (a) Umicore N.V. has delivered its products into the stream of
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`commerce with the knowledge, understanding, and expectation that they will be incorporated
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`into products purchased and sold in the United States; (b) Umicore N.V., either directly or
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`through entities it wholly owns and controls, maintains offices, factories, and research facilities
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`in 15 locations throughout the United States, including a location in Michigan that engages in
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`1 On information and belief, Umicore S.A., Umicore N.V., and Umicore S.A./N.V. refer to the
`same entity. On information and belief, it is custom in Belgium for entities to use the S.A. and
`N.V. designations interchangeably, as one is the French designation and the other the Dutch
`designation, respectively.
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`sales and marketing activities as well as applied technology research for Umicore N.V.’s
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`rechargeable battery division; (c) Umicore also has sent employees to attend relevant battery
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`trade conferences in the United States on at least two occasions in Novi, Michigan, and Ft.
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`Lauderdale, Florida; (d) around 2005, a representative from Umicore N.V.’s Specialty Oxides
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`and Chemicals group arranged a meeting in the United States in order to negotiate with an
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`American corporation for the opportunity to supply the company with lithium-ion battery
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`materials; and (e) Umicore N.V. met with Argonne in the United States on multiple occasions to
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`discuss a license for the BASF/Argonne patents.
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`15.
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`The Court has personal jurisdiction over Makita Corporation, Makita U.S.A., Inc.,
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`and Makita Corporation of America because, on information and belief, those Defendants have
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`committed acts of infringement in the District of Delaware, including at least because they each
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`(directly and/or through their subsidiaries, divisions, groups, or distributors) advertise, market,
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`offer for sale, import for sale and/or sell the infringing products at issue in this case in the
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`District of Delaware.
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`16.
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`Venue is proper in this Court under 28 U.S.C. §§ 1391(b) and (c), and 1400(b).
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`FACTUAL BACKGROUND
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`Lithium-Ion Battery Technology
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`17.
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`Lithium-ion batteries are used in a wide variety of rechargeable electronic devices
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`sold worldwide, including power tools, smartphones, tablets, laptop computers, cameras and
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`camcorders, and electric, hybrid, and plug-in electric vehicles.
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`18.
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`Lithium-ion batteries include electrodes (a cathode and an anode), with lithium
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`ions passing between the cathode and the anode during the batteries’ charge and discharge
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`(“use”) cycles. The cathodes for lithium-ion batteries can contain different chemical
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`compositions, and each composition provides a different combination of energy, power, safety,
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`life, and cost benefits. Until recently, lithium-ion battery cathodes composed of lithium cobalt
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`oxide (“LCO”) dominated the market. But beginning around 2006, the use of lithium-ion battery
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`cathodes composed of lithium with nickel, cobalt, and another transition metal such as
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`manganese increased substantially. By 2011, an estimated 32% of the lithium-ion batteries made
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`used a cathode composed specifically of nickel, cobalt, and manganese (“NCM”), and that
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`number is expected to increase to 40% by 2020.
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`The BASF/Argonne Patents Cover Two-Phase NCM Materials for NCM Cathodes
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`19.
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`On January 13, 2004, the United States Patent & Trademark Office issued the
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`’082 Patent, entitled “Lithium Metal Oxide Electrodes for Lithium Cells and Batteries.” (Ex. A.)
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`Argonne is the assignee and owner of the ’082 patent. BASF has an exclusive license to the ’082
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`patent.
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`20.
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`On January 20, 2004, the United States Patent & Trademark Office issued the
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`’143 Patent, entitled “Lithium Metal Oxide Electrodes for Lithium Cells and Batteries.” (Ex. B.)
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`Argonne is the assignee and owner of the ’143 patent. BASF has an exclusive license to the ’143
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`patent.
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`21.
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`The ’082 and ’143 patents (the “BASF/Argonne patents”) disclose NCM cathodes
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`made from NCM materials containing an excess amount of lithium and having two phases,
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`referred to respectively in the claims of the patents as the “LiMO2” and “Li2M’O3” components
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`of the material. The “excess” lithium incorporated in the cathode active material drives the
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`formation of the second phase, Li2M’O3. In addition, the excess lithium increases the capacity of
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`the battery, improves the cathode’s chemical stability, and provides improved battery
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`characteristics, such as a reduction in capacity fade.
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`22.
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`Around 2009, BASF was looking at entering the battery market, and after
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`conducting research and the required due diligence, BASF recognized that Argonne had
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`developed significant cathode technology. In May 2009, BASF licensed the ’082 and ’143
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`patents from Argonne. By scaling-up the Argonne technology, BASF knew it would be
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`positioned to enter the lithium-ion battery market and supply NCM materials to manufacturers of
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`lithium-ion batteries.
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`23.
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`To date, BASF has supplied samples of its NCM cathode materials to numerous
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`worldwide manufacturers of lithium-ion batteries. BASF manufactures the materials at three
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`locations in the United States: “precipitation” of NCM precursor material occurs in Troy,
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`Michigan, “drying” occurs in Louisville, Kentucky; and “calcination” of the precursor materials
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`occurs in Elyria, Ohio. BASF also procures precursor materials from third parties and BASF has
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`recently announced its formation of a joint venture with Toda in Japan where both precursor
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`precipitation and calcination production capacity is available. BASF’s NCM cathode active
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`materials have both LiMO2 and Li2M’O3 phases, as required by the BASF/Argonne patents.
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`Umicore Makes and Sells a Dual-Phase NCM Material for NCM Cathodes
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`24.
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`Umicore also makes and sells NCM2 materials for use in NCM cathodes.
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`Umicore sells its NCM cathode active material for use in lithium-ion batteries made for power
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`tools, portable electronics, electric, hybrid electric, and plug-in vehicles, and stationary energy
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`storage devices.
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`25.
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`Umicore bills itself as the leading global supplier of cathode materials. One out
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`of every five rechargeable batteries ever made contains Umicore materials, according to
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`2 Umicore refers to its nickel, manganese, and cobalt cathode active materials as “NMC”
`materials, while BASF refers to its product as “NCM” materials. That difference in naming
`convention is simply a labeling and marketing distinction; it does not reflect a difference in the
`products’ chemical structure.
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`Umicore. Umicore maintains a substantial presence across multiple markets for lithium-ion
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`cathode materials. For example, Umicore controls 50% of the market for LCO cathodes. And
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`its share of the market for NCM cathode active materials grew exponentially from 0% in 2008,
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`to 27% in March 2014, to 31% just six months later in September 2014.
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`26.
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`Umicore is the largest supplier of NCM cathode active materials, with a 31%
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`market share by sales volume, more than twice that of any other competitor.
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`27.
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`Umicore claims that it supplies “all key players in the battery industry.” Industry
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`reports indicate that Umicore’s customers include the largest battery cell manufacturers in the
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`world, who, combined, account for 93% of the market for cylindrical lithium-ion battery cells
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`(which are used in a variety of products, including laptop computers, power tools, and e-bikes).
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`28.
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`The market for battery materials is forecasted to grow by 30% annually until
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`2020, and Umicore is prepared to capture a significant percentage of the expanding market,
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`including 50% of the market for NCM battery materials for automotive batteries. For instance,
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`Umicore touts that it is increasing its production capacity. Umicore seeks to monopolize the
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`market for NCM materials (the relevant market).
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`29.
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`On information and belief, and based on investigation, Umicore’s NCM materials
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`contain excess lithium and the two phases, LiMO2 and Li2M’O3, claimed in the BASF/Argonne
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`patents.
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`30.
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`For instance, the NCM material in Makita’s 18V LXT Lithium-Ion 3.0 Battery
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`(model BL1830) contains two phases, LiMO2 and Li2M’O3. On information and belief including
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`Umicore’s public statements, the cathode active material in Makita’s battery packs for cordless
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`drills is Umicore’s NCM material.
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`Umicore Purports to Make Its NCM Material under License to
`a 3M Patent that Is Limited to Single-Phase NCM Materials
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`31.
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`3M is the owner of three patents that also relate to materials for cathodes: U.S.
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`Patent Nos. 6,660,432, 6,964,828, and 8,241,791 (collectively, the “3M patents”). The priority
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`dates for the BASF/Argonne patents pre-date those of the 3M patents.
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`32.
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`The 3M patents disclose and are expressly limited to cathodes having NCM
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`materials that are only a “single phase.”
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`33.
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`On information and belief, including based on public statements by Umicore, 3M
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`has licensed the 3M patents to Umicore.
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`Umicore Tells the Industry that Existing NCM Materials Are Single Phase and
`Therefore Covered by the 3M Patents, not the BASF/Argonne Patents
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`34.
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`At the May 2014 Advanced Automotive Battery Conference, Dong Joon Ihm, the
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`Director of Global Applied Technology for Umicore told a large audience of purchasers,
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`manufacturers, and researchers of NCM materials that Umicore has a license to the 3M patents
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`and suggested that the BASF/Argonne patents do not cover existing commercial NMC materials.
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`35.
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`At the July 2014 China International Battery Fair, Umicore presented powerpoint
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`slides to a large audience of purchasers, manufacturers, and researchers of NCM materials that
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`the BASF/Argonne patents do not cover existing NCM materials because the patents exclude
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`single-phase NCM materials. Umicore further told that audience that only the 3M patents cover
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`existing commercial NCM materials, that Umicore has a license to the 3M patents, and that
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`purchasing NCM materials from Umicore provides freedom to operate for manufacturers
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`producing and using NCM cathodes. Umicore also showed and discussed press releases from
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`3M stating that the value of the 3M patents lies in the fact that they are directed to single phase
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`and solid solution materials.
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`36.
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`Those statements are false because commercially available NCM materials,
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`including those NCM materials manufactured by Umicore, regularly contain excess lithium and
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`are dual phase. Manufacturers desire to produce high capacity (long run time) batteries, and
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`dual-phase NCM materials containing excess lithium improve the capacity and functionality of
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`lithium-ion batteries.
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`37.
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`On information and belief including for the reasons described below, Umicore
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`knew these statements were false. By its conduct, Umicore has created in the industry a putative
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`requirement of a 3M patent license, which presents a significant barrier to any potential suppliers
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`seeking to enter the market. And it is a barrier constructed willfully by Umicore on false
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`pretenses.
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`Umicore Knows that Existing Umicore NCM Materials Are Dual Phase and
`Therefore Covered by the BASF/Argonne Patents, not the 3M Patents
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`38.
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`Standard industry tests confirm that existing Umicore NCM materials contain the
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`two phases required by the BASF/Argonne patents, not the single phase disclosed in the 3M
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`patents. For instance, the NCM cathode material in Makita’s 18V LXT Lithium-Ion 3.0 Battery
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`(model BL1830) contains two phases, the LiMO2 phase and the Li2M’O3 phase.
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`39.
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`Transmission electron microscopy (“TEM”) is a well-known and widely accepted
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`analytical technique employed in the lithium-ion battery industry for analyzing NCM materials
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`and can be used to determine whether such materials are single or dual-phase. Indeed, the
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`BASF/Argonne patents explain that the patented, dual-phase NCM materials and other NCM
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`materials can be “unequivocally distinguished from one another” using TEM.3 Based on testing,
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`including TEM with electronic diffraction and Energy Dispersive X-ray Spectroscopy (“EDS”)
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`3 U.S. Patent No. 6,677,082, col. 4, ll. 26-28; U.S. Patent No. 6,680,143, col. 5, ll. 47-49.
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`analysis, BASF confirmed that the NCM cathode material in Makita’s 18V LXT Lithium-Ion 3.0
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`Battery (model BL1830) contains two phases, LiMO2 and Li2M’O3.
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`40.
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`On information and belief, Umicore’s processing recipe for its NCM material will
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`show Umicore uses excess lithium to make its NCM material, which results in a second phase.
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`Because excess lithium improves certain features of NCM cathodes, the use of excess lithium is
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`common in the industry. Scientific literature in the field indicates that NCM materials contain
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`excess lithium and are the dual-phase material claimed in the BASF/Argonne patents.4
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`Moreover, Umicore is familiar with the technology disclosed in the BASF/Argonne patents, and
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`it knows that excess lithium improves NCM cathodes. In discussions in 2005 and 2009,
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`Umicore approached Argonne, seeking to license several patents related to lithium-ion battery
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`technology, including the BASF/Argonne patents. During that period, Dr. Michael Thackeray
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`(the first-listed inventor on the BASF/Argonne patents) identified the BASF/Argonne patents by
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`patent number and presented
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`information
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`to Umicore explaining
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`the chemistry and
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`electrochemical operation of the cathodes covered by those patents. In addition, Dr. Thackeray
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`specifically explained to Umicore in 2005 that dual-phase NCM cathodes with excess lithium
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`exhibit improved electrochemical behavior and properties.
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`41.
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`On information and belief, Umicore knows these and/or other facts which,
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`contrary to its public statements at industry conferences, prove that there are NCM materials,
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`including its own NCM materials, that contain excess lithium and are dual phase. Umicore is
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`specifically aware of the BASF/Argonne patents, the excess lithium and dual-phase technology
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`disclosed in those patents, and the importance of that technology to lithium-ion battery use and
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`4 Karalee Jarvis, et al., Atomic Structure of a Lithium-Rich Layered Oxide Material for Lithium-
`Ion Batteries: Evidence of a Solid Solution, Chem. Mater. 3615 (2011).
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`functionality. Umicore also knows that the 3M patents are limited to single-phase materials
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`while only the BASF/Argonne patents cover dual phase.
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`Umicore Threatens to Sue a Potential BASF Customer
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`42.
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`In 2012, BASF began negotiations with a potential customer and lithium-ion
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`battery manufacturer about BASF supplying that potential customer with NCM materials. BASF
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`provided the potential customer with sample NCM active cathode materials, the parties reviewed
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`and discussed the potential customer’s analytical and electrochemical results, and as a result of
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`those discussions BASF provided additional samples. The parties also discussed in detail
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`BASF’s production capabilities, BASF’s pricing, and the potential customer’s freedom to
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`operate. As the parties pursued these negotiations, BASF was considered to be viable, long-
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`term, high-quality supplier for NCM cathode materials. However, on information and belief,
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`Umicore was and had been a major supplier of NCM materials to the potential customer.
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`According to the potential customer’s representative, after Umicore learned that the potential
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`customer was considering BASF as a supplier of NCM materials, Umicore made clear that if the
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`potential consumer bought NCM materials from BASF, they would face legal action, suggesting
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`a threat of suit based on the 3M patents. Any such patent assertion would be based on the
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`allegation that BASF’s NCM materials contain only a single phase, which BASF believes
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`discovery will show Umicore knows to be false.
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`BASF’s Injury
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`43.
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`BASF is licensed under the BASF/Argonne patents to market, produce, and sell
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`dual-phase NCM active cathode materials with excess lithium. Umicore, however, is not
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`licensed under the BASF/Argonne patents. Although Umicore previously approached Argonne
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`in an attempt to acquire a license to the BASF/Argonne patents, Argonne and Umicore did not
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`agree to a license. Instead, Umicore has a license to the 3M patents which gives Umicore only
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`the right to make and sell single-phase NCM materials; they are not licensed and not permitted to
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`market, produce, or sell dual-phase NCM active cathode materials with excess lithium because
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`those materials practice the BASF/Argonne patents, not the 3M patents. Umicore nevertheless
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`makes and sells dual-phase NCM materials having excess lithium; and because Umicore is aware
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`of the BASF/Argonne patents and the scope of their claims disclosing dual-phase NCM
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`cathodes, its infringement of the BASF/Argonne patents is willful.
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`44.
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`Although Umicore does not have a license to the BASF/Argonne patents and it
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`knows that it makes and sells dual-phase NCM material with excess lithium, Umicore’s conduct
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`and baseless assertions and threats regarding patent protection in the NCM materials market have
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`effectively excluded BASF from the NCM materials market and furthered Umicore’s
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`anticompetitive position. Despite competitive pricing, quality materials, and ample production
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`capacity, some customers are not willing to purchase NCM materials from BASF as a result of
`
`Umicore’s private and public conduct.
`
`45.
`
`These exclusionary practices have resulted in significant financial harm to BASF.
`
`BASF has lost out on billions of dollars of potential revenue from selling NCM materials
`
`because of Umicore’s misrepresentations to major purchasers in the NCM materials market. In
`
`addition, BASF has lost the ability to compete as a supplier for electric vehicle platforms
`
`expected to launch in 2016 and 2017.
`
`46.
`
`Further, BASF’s reputation in the lithium-ion battery industry, both to NCM-
`
`material purchasers and NCM-material manufacturers, has been damaged by Umicore’s
`
`deceptive, tortious, and anticompetitive conduct.
`
`
`
`13
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`Page 13 of 20
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`

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`Case 1:15-cv-00172-LPS-CJB Document 1 Filed 02/20/15 Page 14 of 20 PageID #: 14
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`
`
`47.
`
`Finally, BASF expended significant resources in developing the capacity to
`
`manufacture high quantities of NCM cathode materials for lithium-ion batteries, and Umicore’s
`
`infringing and exclusionary conduct is preventing BASF from recouping any returns on those
`
`substantial investments. For instance, in 2012 BASF opened its new calcination production
`
`facility in Elyria, Ohio, which required an investment of more than $50 million. Moreover,
`
`construction of the Elyria facility was supported by a $24.6 million grant from the U.S.
`
`Department of Energy, meaning Umicore’s acts of infringement and exclusion are damaging not
`
`only BASF but also the United States Government’s investments in improved battery
`
`technology.
`
`COUNT ONE
`INDIRECT INFRINGEMENT OF THE ’082 PATENT BY UMICORE
`
`48.
`
`BASF and Argonne incorporate and reallege all previous paragraphs as if fully set
`
`forth herein.
`
`49.
`
`On information and belief, Umicore produces and sells NCM materials that are
`
`especially made for or adapted for use in infringing the ’082 Patent.
`
`50.
`
`Umicore’s NCM material is not a staple article or a commodity of commerce
`
`suitable for substantial non-infringing uses.
`
`51.
`
`52.
`
`Umicore has actual knowledge of the ’082 Patent.
`
`On information and belief, Umicore has been and is encouraging others to directly
`
`infringe the ’082 Patent with knowledge of that infringement.
`
`53.
`
`On information and belief, Umicore imports its NCM materials into the United
`
`States to be used in infringing products, and knows its customers import its NCM materials into
`
`the United States in infringing products and/or to be used in infringing products, including in
`
`Makita’s lithium-ion battery packs for cordless power tools.
`
`
`
`14
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`Page 14 of 20
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`

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`Case 1:15-cv-00172-LPS-CJB Document 1 Filed 02/20/15 Page 15 of 20 PageID #: 15
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`
`
`54.
`
`Umicore knows that cathodes for lithium-ion batteries containing Umicore’s
`
`NCM materials infringe the ’082 Patent, and knows that customers, including Makita, are
`
`directly infringing the ’082 patent with Umicore’s encouragement and aid.
`
`55.
`
`Umicore has knowledge of the ’082 patent, knowledge that its actions as
`
`described above are inducing and/or contributing to the infringement of the ’082 patent, and
`
`knowledge that its NCM material lacks substantial non-infringing uses.
`
`56.
`
`Umicore has been and is indirectly infringing the ’082 Patent by inducing
`
`infringement and/or contributing to the infringement of the ’082 patent by others.
`
`57.
`
`Umicore’s infringement has been willful.
`
`COUNT TWO
`DIRECT INFRINGEMENT OF THE ’082 PATENT BY MAKITA
`
`58.
`
`BASF and Argonne incorporate and reallege all previous paragraphs as if fully set
`
`forth herein.
`
`59. Makita makes, uses, sells, offers for sale, and/or imports into the United States
`
`lithium-ion battery packs for Makita cordless drills.
`
`60.
`
`On information and belief, Makita’s lithium-ion battery packs for Makita cordless
`
`drills contain NCM materials, including NCM materials supplied by Umicore.
`
`61.
`
`Defendant Makita has been and is directly infringing the ’082 patent by making,
`
`using, offering to sell, and/or selling in the United States products containing lithium-ion
`
`batteries produced using NCM materials, including NCM materials supplied by Umicore.
`
`COUNT THREE
`INDIRECT INFRINGEMENT OF THE ’143 PATENT BY UMICORE
`
`62.
`
`BASF and Argonne incorporate and reallege all previous paragraphs as if fully set
`
`forth herein.
`
`
`
`15
`
`Page 15 of 20
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`

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`Case 1:15-cv-00172-LPS-CJB Document 1 Filed 02/20/15 Page 16 of 20 PageID #: 16
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`
`
`63.
`
`On information and belief, Umicore produces and sells NCM materials that are
`
`especially made for or adapted for use in infringing the ’143 Patent.
`
`64.
`
`Umicore’s NCM material is not a staple article or a commodity of commerce
`
`suitable for substantial non-infringing uses.
`
`65.
`
`66.
`
`Umicore has actual knowledge of the ’143 Patent.
`
`On information and belief, Umicore has been and is encouraging others to directly
`
`infringe the ’143 Patent with knowledge of that infringement.
`
`67.
`
`On information and belief, Umicore imports its NCM materials into the United
`
`States to be used in infringing products, and knows its customers import its NCM materials into
`
`the United States in infringing products and/or to be used in infringing products, including in
`
`Makita’s lithium-ion battery packs for cordless power tools.
`
`68.
`
`Umicore knows that cathodes for lithium-ion batteries containing Umicore’s
`
`NCM materials infringe the ’143 Patent, and knows that customers, including Makita, are
`
`directly infringing the ’143 patent with Umicore’s encouragement and aid.
`
`69.
`
`Umicore has knowledge of the ’143 patent, knowledge that its actions as
`
`described above are inducing and/or contributing to the infringement of the ’143 patent, and
`
`knowledge that its NCM material lacks substantial non-infringing uses.
`
`70.
`
`Umicore has been and is indirectly infringing the ’143 Patent by inducing
`
`infringement and/or contributing to the infringement of the ’143 patent by others.
`
`71.
`
`Umicore’s infringement has been willful.
`
`COUNT FOUR
`DIRECT INFRINGEMENT OF THE ’143 PATENT BY MAKITA
`
`72.
`
`BASF and Argonne incorporate and reallege all previous paragraphs as if fully set
`
`forth herein.
`
`
`
`16
`
`Page 16 of 20
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`

`
`Case 1:15-cv-00172-LPS-CJB Document 1 Filed 02/20/15 Page 17 of 20 PageID #: 17
`
`
`
`73. Makita makes, uses, sells, offers for sale, and/or imports into the United States
`
`lithium-ion battery packs for Makita cordless drills.
`
`74.
`
`On information and belief, Makita’s lithium-ion battery packs for Makita cordless
`
`drills contain NCM materials, including NCM materials supplied by Umicore.
`
`75.
`
`Defendant Makita has been and is directly infringing the ’143 patent by making,
`
`using, offering to sell, and/or selling in the United States products containing lithium-ion
`
`batteries produced using NCM materials, including NCM materials supplied by Umicore.
`
`COUNT FIVE
`VIOLATION OF FEDERAL ANTITRUST LAW
`
`76.
`
`BASF incorporates and realleges all previous paragraphs as if fully set forth
`
`herein.
`
`77.
`
`Umicore has violated § 2 of the Sherman Antitrust Act (15 U.S.C. § 2) by
`
`unlawfully attempting to acquire and maintain a monopoly in the market for NCM materials,
`
`including by excluding BASF from that market by deliberately misleading current and
`
`prospective NCM-materials purchasers about its own and BASF’s NCM materials and
`
`intellectual property.
`
`78.
`
`As a result of Umicore’s unlawful conduct