Case 1:19-cv-01334-CJB Document 673 Filed 02/16/24 Page 1 of 3 PageID #: 17621
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`1526 Gilpin Avenue
`Wilmington, Delaware 19806
`United States of America
`Tel: 302-449-9010
`Fax: 302-353-4251
`www.devlinlawfirm.com
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`February 16, 2024
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`VIA CM/ECF
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`The Honorable Christopher J. Burke
`United States District Court
` for the District of Delaware
`J. Caleb Boggs Federal Building
`844 N. King Street
`Unit 28, Room 2325
`Wilmington, DE 19801-3555
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`Dear Judge Burke:
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`Re: Midwest Energy Emissions Corp., et al. v. Arthur J. Gallagher
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`& Co., et al., C.A. No. 1:19-cv-01334-CJB
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`Pursuant to the Court’s February 14, 2024 order, the parties provide a list of differences between
`the parties’ proposed verdict forms (Exs. 23a and 23b to the Pretrial Order):
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`I.
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`Infringement Question(s)
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`Number of questions: ME2C’s form includes one question for both inducement and contributory
`infringement for both patents. Defendants’ form sets forth an inducement question and a contrib-
`utory question for the ’114 patent and then for the ’517 patent. Within each question, Defendants
`have a separate blank for each claim, while ME2C’s form proposes a patent-by-patent question.
`Defendants use the term “is liable for actively inducing” with bold and underline and “is liable
`for contributory infringement,” while ME2C’s form asks whether Defendants “induced AND/OR
`contributed to infringement.” Defendants form also repeats the question in a gray table before
`providing a table for the jury to mark infringed claims on a Defendant basis.
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`Form of answer: ME2C’s form includes a blank for the jury to write in whether their infringement
`finding applies to all Defendants (regardless of whether it is a yes or no). Defendants’ form in-
`cludes a blank for writing “NO” for all Defendants. ME2C’s form asks the jury to use checkmarks
`or to leave answers blank, whereas Defendants’ form asks the jury to write “YES” or “NO.”
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`Party order: Both forms then provide blanks for the jury to indicate yes or no for infringement on
`a per Defendant basis. ME2C’s listing groups relevant Defendants together (see ME2C’s damages
`question). Defendants’ listing of Defendants is in alphabetical order. For Defendants’ contributory
`infringement questions (Questions 2(a) and 2(b)), Defendants include a subset of parties.
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`Case 1:19-cv-01334-CJB Document 673 Filed 02/16/24 Page 2 of 3 PageID #: 17622
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`February 16, 2024
`Page 2 of 3
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`II.
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`Invalidity Question
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`Instructions: ME2C’s form instructs the jury to answer the invalidity question “ONLY as to any
`Asserted Claim that you have found in Question No. 1 to be infringed,” while Defendants’
`question has no similar instruction.
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`Form of answer: ME2C’s form asks the jury to answer “YES or NO” on a claim-by-claim basis
`with a blank for “Yes” and a blank for “No.” Defendants’ form asks the jury to use check marks
`to mark invalidity and includes just one blank: “Invalid: ___,” which it instructs the jury to leave
`empty if the jury does not find that Defendants have proven that the claim is invalid.
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`III. License Question
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`Express License Defense: Defendants’ form includes a question asking whether “Defendants
`[have] proven by a preponderance of the evidence that Vistra’s license agreement with ME2C
`authorized the Vistra power plant operator at Coleto Creek to use ME2C’s patented methods prior
`to July 30, 2020.” Defendants’ form also includes a second, analogous question regarding the
`NRG license. ME2C’s form has no analogous question.
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`Additional License Instructions: ME2C’s form does not mention any license, while Defendants’
`form asks the jury to answer the willfulness and damages questions (within each individual ques-
`tion) only if the jury does not find an express license.
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`IV. Willfulness Question
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`Instructions: ME2C’s form instructs the jury to answer the willfulness question “ONLY if [the
`jury] found infringement in Question No. 1,” while Defendants’ form instructs the jury to
`“STOP. Answer Questions 6 and 7 ONLY if you have found using questions 1–5 that at least
`one Defendant has infringed at least one valid claim and that such Defendant’s actions were
`not licensed under an express license.”
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`Format: ME2C’s willfulness question is formatted like its infringement question and provides the
`jury first with a blank to write “YES” or “NO” if their answer is the same for all Defendants. If
`not, it provides a space for the jury to fill in checkmarks on a per-Defendant basis (with Defendants
`listed the same order as the infringement question). ME2C’s instruction states that a check mark
`indicates a finding that a Defendant “Infringed,” but does not state “Willfully Infringed” in that
`portion of the instruction. Defendants’ form provides no blank to fill out if the answer is the same
`for all Defendants and includes a chart that lists the Defendants in alphabetical order. Defendants
`repeat the willfulness question within the chart with blanks for each defendant. Defendants also
`underline and bold “willful” and “willfully infringed” in their form.
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`Dates: ME2C’s form does not include any dates for willfulness. Defendants’ form asks the jury
`to determine willfulness “after June 29, 2020 (or, as to Rutledge Products LLC and Senescence
`Energy Products LLC only, after September 24, 2020).”
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`V.
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`Damages Question
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`Instructions: ME2C’s form instructs the jury to answer the damages question “ONLY as to any
`Asserted Claim that [the jury] found in Question Nos. 1 and 2 to be BOTH infringed AND
`not invalid.” Defendants’ form instructs the jury to “STOP” as explained above for the willful-
`ness question. Defendants’ form also includes language in Question 7 that instructs the jury to
`answer “ONLY” if the jury found infringement of a valid claim without an express license.
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`Case 1:19-cv-01334-CJB Document 673 Filed 02/16/24 Page 3 of 3 PageID #: 17623
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`February 16, 2024
`Page 3 of 3
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`Date: ME2C’s question does not include a blank for the jury to fill any dates. Defendants’ form
`includes a chart asking the jury to fill in the Date of First Infringement for each defendant.
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`Format: ME2C’s form gives the jury the option of assessing damages by either circling “ME2C’s
`Proposed Damages Calculation” or by filling in an amount for each defendant. ME2C groups
`together Defendants for which damages would be assessed on a joint and several basis (i.e., CERT
`Operations RCB is accused for the same tonnage sold by Bascobert (A) Holdings LLC, Larkwood
`Energy LLC, Cottbus Associates LLC, Senescence Energy Products LLC, and Rutledge Products
`LLC, so those are listed together in a box). ME2C’s instruction does not inform the jury why
`Defendants are separated into different groups. Defendants’ form includes a chart with a blank for
`“Amount” for each Defendant, listed in alphabetical order.
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`Respectfully,
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`/s/ James M. Lennon
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`James M. Lennon (No. 4570)
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`Clerk of the Court (via CM/ECF)
`Counsel of Record (via CM/ECF)
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