Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 1 of 8 PageID #: 17849
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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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`JURY TRIAL DEMANDED
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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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`CERT DEFENDANTS’ RESPONSE TO
`PLAINTIFFS’ MOTION FOR CURATIVE INSTRUCTION
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 2 of 8 PageID #: 17850
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`Defendants are trying this case cleanly. And Defendant would also prefer that both sides
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`play by the rules set forth in the Court’s orders. Defendants’ opening statement followed the
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`repeated instructions that the Court has given on the standard for contributory infringement and
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`the arguments that Defendants can make. Plaintiffs, on the other hand, ignored the Joint Pretrial
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`Order’s dispute resolution process and filed at the break of dawn, without notice, a motion to
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`relitigate arguments the Court just addressed (for the third time) about 22 hours earlier.
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`The Joint Pretrial Order sets out specific procedures with deadlines each evening for
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`identifying disputes with respect to witnesses, demonstratives, and deposition designations to
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`bring order to what otherwise would surely devolve into an unmanageable burden on the Court in
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`the hectic week of trial. E.g., D.I. 669 ¶¶ 32, 44, 47, 49, 79. If the parties fail to reach agreement
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`on an issue, the Order contemplates notifying the Court of that failure. Id. ¶ 79. At both pretrial
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`conferences, the Court noted these procedures, and the Court has made itself available to the parties
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`at 8:30 a.m. to attempt to resolve disputes before the trial day begins. D.I. 676 at 4:20-5:3; D.I.
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`610 at 18:8-23. Plaintiffs have availed themselves of this process, including to raise other separate
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`issues with argument presented during the preceding trial day, and subsequently brought those
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`issues to the Court’s attention with an email at 6:34 a.m. In this instance, however, Plaintiffs
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`ignored that procedure, and Defendants received their first notice of this motion standing on the
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`courthouse steps. Of course, setting aside the failure to follow the Pretrial Order’s procedure,
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`Plaintiffs’ actions also violated this Court’s requirement to meet and confer on non-dispositive
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`issues. D. Del. LR 7.1.1. Plaintiffs’ failure to respect the parties’ and the Court’s process for orderly
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`disposition of disputes in this hectic time should not be rewarded with the issuance of a prejudicial
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`curative instruction.
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`Furthermore, any complaint regarding the substance of Defendants’ opening statement is
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`1
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 3 of 8 PageID #: 17851
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`waived. Plaintiffs were acutely aware of and attuned to the issue about which they now complain.
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`They raised objections regarding the slides excerpted in their motion before the trial day began.
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`As detailed below, the Court explained the permissible use of that information and allowed the
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`slides. If Plaintiffs believed that Defendants strayed beyond permissible limits—at least seven
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`times according to their motion—they had ample opportunity to object. They did not.
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`Procedure aside, Plaintiffs’ complaints are without merit. This is not a new issue, nor is it
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`a stale one. Before the trial day began, the Court reiterated its position that evidence regarding
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`refined coal burned prior to the issuance of the patents in suit or at plants that do not use activated
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`carbon could be relevant to the Defendants’ state of mind:
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`2/26/2024 Trial Tr. (Rough) at 7:23-8:8. After hearing further argument on the issue, the Court
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`restated that arguments regarding Defendants’ state of mind and evidence relevant to those beliefs
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`were proper and would be allowed:
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 4 of 8 PageID #: 17852
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`2/26/2024 Trial Tr. (Rough) at 17:4-17. This was not the first time the Court made its position on
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`this issue clear. In resolving the parties’ remaining disputes regarding the jury instruction for
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`contributory infringement, while the Court adopted Plaintiffs’ construction with respect to the
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`scope of the material or material part of the invention referenced in § 271(c), the Court also stated
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`its intention to adopt Defendants’ language regarding a reasonable belief of non-infringement. D.I.
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`679. The Court specifically noted that it had “previously explained that a reasonable but mistaken
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`belief that one does not infringe is a viable defense to indirect infringement,” and that “Plaintiffs
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`have not explained why this is incorrect.” Id. And indeed, the Court had already laid out its
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`reasoning on that issue in response to Plaintiffs’ MIL No. 1 last November. D.I. 619. The Court’s
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`consistent, repeated rulings are wholly in accord with Supreme Court and Federal Circuit
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`precedent. See Commil USA, LLC v. Cisco Systems, Inc., 575 U.S. 632, 642 (2015); Kinetic
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`Concepts, Inc. v. Blue Sky Medical Group, Inc., 554 F.3d 1010, 1024-25 (2009); see also D.I. 674
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`at 5.
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`None of the statements identified by Plaintiffs run afoul of the Court’s instructions. To the
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 5 of 8 PageID #: 17853
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`extent Plaintiffs still contend Defendants’ slides are improper, D.I. 686 at 2-3, the Court has
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`already found otherwise, 2/26/2024 Trial Tr. (Rough) at 18:5-7 (“[M]y decision is I don’t have
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`any reason to strike or preclude any evidence with regard to this issue that I’ve seen so far.”).
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`Plaintiffs’ challenges to specific statements made in Defendants’ opening statement either elide
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`the context in which the statement was made or outright ignore the context present in the
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`challenged statements.
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`In each of the following three instances, D.I. 686 at 3-4, the surrounding context links the
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`statement to Defendants’ knowledge and beliefs.
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`For 182:1-6:
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`2/26/2024 Trial Tr. (Rough) at 182:7-14.
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`For 199:10-24:
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`2/26/2024 Trial Tr. (Rough) at 199:5-8.
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`For 175:10-15:
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 6 of 8 PageID #: 17854
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`2/26/2024 Trial Tr. (Rough) at 175:24-176:2.
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`For the other four excerpts, D.I. 686 at 4-5, Plaintiffs ignore clarifying context within the
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`quoted statement. In the excerpt at 200:8-171, counsel stated: “Remember, one of the issues is did
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`we, you know believe there was substantial amount of non-infringing uses and did we know and
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`believe our coal was specially made and adapted to be used with refined carbon or activated
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`carbon.” (emphases added). In the excerpt at 219:12-17, counsel stated: “I think, as you’ve seen,
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`our people reasonably believed, having sold tens of millions of tons of, refined coal, that was never
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`combusted with activated carbon while the suit was going on by the defendant companies had
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`reason to believe that they did not infringe . . . .”) (emphasis added). And in the excerpt at 206:20-
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`207:2, counsel stated: “And that’s what we believe there was substantial non-infringing uses of
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`refined coal and we didn’t infringe.” (emphasis added). None of counsel’s statements deviated
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`from the line the Court has set.
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`Although none of these statements warrants any cure, Plaintiffs also have not demonstrated
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`that the strong remedy of a mid-trial curative instruction is necessary or appropriate. Plaintiffs will
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`be able to cross examine the Defendants’ relevant witnesses in the context of the Court’s
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`instructions and orders. The Court has adopted Plaintiffs’ position regarding the relevant
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`“material” or “material part of the invention” for purposes of § 271(c) and intends to instruct the
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`jury accordingly. Plaintiffs will be able to rely on and refer to that instruction in closing. Nothing
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`further is warranted.
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`1 Plaintiffs present two overlapping excerpts at 200:8-12 and 200:12-17. Defendants have
`addressed them into one continuous excerpt.
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 7 of 8 PageID #: 17855
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` On the other hand, Defendants would be severely prejudiced by the mid-trial curative
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`instruction Plaintiffs request. To begin, by singling out certain of counsel’s statements in the
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`middle of trial, the instruction suggests that Defendants have done something wrong when, as
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`demonstrated above, they have not. The focus of a curative instruction would only serve to
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`improperly undermine the legitimate arguments that the Court has repeatedly ruled Defendants are
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`permitted to make. In addition, the second paragraph of the proposed instruction is redundant in
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`its first half and incorrect in its second. The first sentence of the second paragraph preemptively
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`states a portion of the Court’s instruction on contributory infringement. That instruction will be
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`given at the close of trial and need not be given now. The second sentence is incorrect because it
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`violates the Court’s repeated instruction that Defendants’ state of mind and knowledge are relevant
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`and that evidence regarding refined coal sold prior to the issuance of the patents-in-suit, prior to
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`this litigation, outside the scope of the damages period, and by entities that are not defendants in
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`this case may be probative of the Defendants’ knowledge and state of mind, under Supreme Court
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`precedent directly on point. Plaintiffs’ motion should be denied.
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`6
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`Case 1:19-cv-01334-CJB Document 688 Filed 02/27/24 Page 8 of 8 PageID #: 17856
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`Dated: February 27, 2024
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` /s/ Cortlan S. Hitch
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`Kenneth L. Dorsney (#3726)
`Cortlan S. Hitch (#6720)
`MORRIS JAMES LLP
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801
`Telephone: (302) 888-6800
`kdorsney@morrisjames.com
`chitch@morrisjames.com
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`Jeff Dyess
`Paul Sykes
`Benn Wilson
`BRADLEY ARANT BOULT CUMMINGS LLP
`1819 Fifth Avenue North
`Birmingham, AL 35203
`Telephone: (205) 521-8000
`Facsimile: (205) 521-8800
`Email: jdyess@bradley.com
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`psykes@bradley.com
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`bcwilson@bradley.com
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`Jessica Zurlo
`BRADLEY ARANT BOULT CUMMINGS LLP
`1615 L Street NW Ste 1350
`Washington, D.C. 20036
`Telephone: (202) 393-7150
`Facsimile: (202) 347-1684
`Email: jzurlo@bradley.com
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`Attorneys for Defendants
`CERT Operations IV LLC,
`CERT Operations V LLC,
`CERT Operations RCB LLC,
`CERT Operations II LLC,
`Senescence Energy Products, LLC,
`Springhill Resources LLC,
`Buffington Partners LLC,
`Bascobert (A) Holdings LLC,
`Larkwood Energy LLC,
`Cottbus Associates LLC,
`Marquis Industrial Company, LLC,
`Rutledge Products, LLC
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