Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 1 of 8 PageID #: 17841
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiffs,
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`Defendants.
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`C.A. No. 19-1334 (CJB)
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`MIDWEST ENERGY EMISSIONS CORP.
`and MES INC.,
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`ARTHUR J. GALLAGHER & CO., et al.,
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`v.
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`PLAINTIFFS’ MOTION FOR CURATIVE INSTRUCTION BASED ON DEFENDANTS’
`IMPROPER ARGUMENTS MADE TO THE JURY CONCERNING INDIRECT
`INFRINGEMENT
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`Plaintiffs would like to try this case cleanly and for both sides to play by the rules as set
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`forth in the relevant legal tests and this Court’s orders. On the other hand, counsel for Defendants
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`presented highly prejudicial evidence during his opening statement that this Court has already
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`deemed irrelevant to the proper legal test for contributory infringement. Counsel for Defendants
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`then urged the jury to apply a legally erroneous test for contributory infringement using this
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`prejudicial and irrelevant evidence.
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`There can be no excuse for this in view of the parties’ very recent pre-trial arguments and
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`the Court’s very recent pre-trial rulings on this precise issue. At the pre-trial hearing ME2C
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`expressed concern that Defendants may mislead and confuse the jury by introducing legally
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`improper evidence of irrelevant refined coal—e.g., refined coal burned prior to the issuance of the
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`patents-in-suit, or refined coal burned at plants which do not use activated carbon—to fit inside a
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`legally wrong framework for analyzing “substantial non-infringing uses” under 35 U.S.C. §
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`271(c). The parties submitted their competing proposals on this issue. See D.I. 674. (“The
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`different proposals reflect one substantive dispute between the parties: what is the scope of the
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 2 of 8 PageID #: 17842
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`refined coal the jury must evaluate for contributory infringement? ME2C’s position is that it is the
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`specific accused refined coal at issue in this case [i.e., “the refined coal supplied to that power
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`plant”]. In contrast, Defendants that it is all refined coal—even coal prepared for non-accused
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`power plants that burn different ranks and categories of coal and refined coal sold before the
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`patents issued.”). ME2C asked that this issue be resolved pre-trial to ensure no juror confusion
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`and prejudice. Id. The Court agreed, and did in fact resolve the issue—in favor of ME2C. See
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`D.I. 679 (“[T]he Court agrees with Plaintiffs that in assessing contributory infringement in this
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`case, the proper focus is on ‘whether the accused refined coal, as it was sold and delivered by
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`Defendants to their power plant customers, could practically be used for purposes other than
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`infringement.”) (emphasis added).
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`Counsel for CERT ignored the Court’s order in its opening statement. This was not an
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`inadvertent argument or an isolated issue. This entailed repeated presentation of both visual and
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`verbal argument that lasted nearly ninety minutes. For example, Defendants presented the
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`following slide and data that calculated the refined coal that this Court already rejected as
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`inapplicable to the proper legal inquiry under 35 U.S.C. 271(c):
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 3 of 8 PageID #: 17843
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`Counsel for Defendants then presented numerous, repeated arguments with reference to this
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`material—calling upon the jury to use this evidence in applying the already-rejected legally
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`erroneous contributory infringement framework. For example:
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`Argument that refined coal sold prior to the patent issuance
`was a substantial non-infringing use:
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`See 2/26/2024 Trial Tr. (Rough) at 182:1-6.
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`See 2/26/2024 Trial Tr. (Rough) at 199:10-24.
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 4 of 8 PageID #: 17844
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`See 2/26/2024 Trial Tr. (Rough) at 175:10-15.
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`Argument that refined coal sold to plants who don’t use activated
`carbon was a substantial non-infringing use:
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`See 2/26/2024 Trial Tr. (Rough) at 200:8-12.
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`See 2/26/2024 Trial Tr. (Rough) at 200:12-17.
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 5 of 8 PageID #: 17845
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`See 2/26/2024 Trial Tr. (Rough) at 219:12-17.
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`See 2/26/2024 Trial Tr. (Rough) at 206:20-207:2.
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`The Court had already clarified what is the “material part of the invention” referenced in
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`Section 271(c) that is at issue in this case. See D.I. 679. That clarification excluded from
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`consideration the very materials that Defendants presented to the jury in its opening statements.
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`By presenting this improper evidence and inviting the jury to apply the wrong legal test for
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`contributory infringement, Defendants have now created a substantial risk of juror confusion as
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`well as imposed severe prejudice on ME2C. The appropriate response is for the Court to issue a
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`curative instruction to the jury to ensure Defendants do not take this infringement case further off
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`the rails.
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 6 of 8 PageID #: 17846
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`Therefore, ME2C respectfully requests that the Court issue the following curative
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`instruction:
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`Yesterday, you heard arguments and evidence from counsel for the CERT
`Defendants concerning the amounts of refined coal that they sold during the years
`preceding the existence of Plaintiffs’ patents, prior to this litigation, outside the
`scope of the damages period, and by entities that are not defendants in this case.
`Those arguments took the form of oral argument and visual demonstratives,
`including timelines and an exhibit with calculations of the amount of this refined
`coal that it sold before the Plaintiffs’ patents issued as well as refined coal sold to
`power plants that are not defendants in this case. At times, counsel for the CERT
`Defendants discussed this refined coal in connection with Plaintiffs’ claim of
`contributory infringement.
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`However, the only refined coal to be considered for purposes of analyzing
`substantial non-infringing use is the refined coal supplied to power plants that
`directly infringed the patents-in-suit in this case, as sold and delivered during the
`damages period. In other words, you may not consider refined coal that Defendants
`may have sold prior to the issuance of the patents-in-suit, prior to this litigation,
`outside the scope of the damages period, and by entities that are not defendants in
`this case.
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`The Court should provide the jury with this corrective instructive now because these
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`opening statement arguments portend an entire trial based on this plainly improper argument and
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`evidence—which has already been rejected by this Court—and that will lead to certain jury
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`confusion and prejudice about the legal standard for liability. Further, the Court cannot allow this
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`trial to become an attorney-debate over the proper legal test for contributory infringement, which
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`has already been resolved in the Court’s ruling on Friday. This instruction makes clear that this
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`Court, not any attorney, is the sole voice concerning the law.
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`After the Court’s Friday ruling, these improper arguments should not have happened. But
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`CERT’s decision to push its own view of the law, despite the Court resolving the proper legal
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`standard, threatens to derail and prejudice these proceedings. An instruction deferred until the
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`time of final instructions would allow the harm to continue to mount, leaving the jury with a
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`mistaken understanding of the law as it takes in the evidence in this case. A final instruction would
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 7 of 8 PageID #: 17847
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`be insufficient to cure the prejudice caused by CERT’s opening arguments (and future similar
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`ones).
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`ME2C respectfully requests that the Court provide the jury with a corrective instruction on
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`the contributory infringement standard.
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`Case 1:19-cv-01334-CJB Document 686 Filed 02/27/24 Page 8 of 8 PageID #: 17848
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`Dated: February 27, 2024
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`OF COUNSEL:
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`Bradley W. Caldwell
`Jason D. Cassady
`John Austin Curry
`Justin T. Nemunaitis
`Warren J. McCarty, III
`Daniel R. Pearson
`Adrienne R. Dellinger
`Aisha Mahmood Haley
`Richard A. Cochrane
`CALDWELL CASSADY CURRY PC
`2121 N. Pearl Street, Suite 1200
`Dallas, Texas 75201
`Phone: (214) 888-4848
`Fax: (214) 888-4849
`bcaldwell@caldwellcc.com
`jcassady@caldwellcc.com
`acurry@caldwellcc.com
`jnemunaitis@caldwellcc.com
`wmccarty@caldwellcc.com
`dpearson@caldwellcc.com
`adellinger@caldwellcc.com
`ahaley@caldwellcc.com
`rcochrane@caldwellcc.com
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`DEVLIN LAW FIRM LLC
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`/s/ James M. Lennon
`James M. Lennon (No. 4570)
`Peter Akawie Mazur (No. 6732)
`1526 Gilpin Avenue
`Wilmington, DE 19806
`(302) 449-9010
`jlennon@devlinlawfirm.com
`pmazur@devlinlawfirm.com
`Attorneys for Plaintiffs Midwest Energy
`Emissions Corp. and MES Inc.
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