Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 1 of 47 PageID #: 17857
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Civil Action No. 19-1334-CJB
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`v.
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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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`Plaintiffs,
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`Defendants.
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`FINAL JURY INSTRUCTIONS
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 2 of 47 PageID #: 17858
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`1. GENERAL INSTRUCTIONS
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`1.1. INTRODUCTION
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`Members of the jury, now it is time for me to instruct you about the law that you must
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`follow in deciding this case. Each of you has been provided a copy of these instructions. You may
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`read along as I deliver them if you prefer.
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`I will start by explaining your duties and the general rules that apply in every civil case.
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`Then I will explain some rules that you must use in evaluating particular testimony and evidence.
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`Then I will explain the positions of the parties and the law you will apply in this case. And
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`last, I will explain the rules that you must follow during your deliberations in the jury room, and
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`the possible verdicts that you may return.
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`Please listen very carefully to everything I say.
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`You will have a written copy of these instructions with you in the jury room for your
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`reference during your deliberations. You will also have a verdict form, which will list the questions
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`that you must answer to decide this case.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 3 of 47 PageID #: 17859
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`1.2. JURORS’ DUTIES
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`You have two main duties as jurors. The first is to decide what the facts are from the
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`evidence that you saw and heard in court. Deciding what the facts are is your job, not mine, and
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`nothing that I have said or done during this trial was meant to influence your decision about the
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`facts in any way. You are the sole judges of the facts.
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`Your second duty is to take the law that I give you, apply it to the facts, and decide under
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`the appropriate burden of proof which party should prevail on any given issue. It is my job to
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`instruct you about the law, and you are bound by the oath you took at the beginning of the trial to
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`follow the instructions that I give you, even if you personally disagree with them. This includes
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`the instructions that I gave you before and during the trial, and these instructions. All of the
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`instructions are important, and you should consider them together as a whole.
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`Perform these duties fairly. Do not guess or speculate, and do not let any bias, sympathy,
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`or prejudice you may feel toward one side or the other influence your decision in any way.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 4 of 47 PageID #: 17860
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`1.3. EVIDENCE DEFINED
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`You must make your decision based only on the evidence that you saw and heard here in
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`court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of
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`court influence your decision in any way.
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`The evidence in this case includes only what the witnesses said while they were testifying
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`under oath (including deposition transcript testimony that has been played by video), the exhibits
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`that I allowed into evidence, and the stipulations to which the parties agreed.
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`Certain charts and graphics have been used to illustrate testimony from witnesses. Unless
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`I have specifically admitted them into evidence, these charts and graphics are not themselves
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`evidence, even if they refer to, identify, or summarize evidence, and you will not have these
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`demonstratives in the jury room.
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`Nothing else is evidence. The lawyers’ statements and arguments are not evidence. The
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`arguments of the lawyers are offered solely as an aid to help you in your determination of the facts.
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`Their questions and objections are not evidence. My legal rulings are not evidence. You should
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`not be influenced by a lawyer’s objection or by my ruling on that objection. Any of my comments
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`and questions are not evidence.
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`During the trial I may have not let you hear the answers to some of the questions that the
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`lawyers asked. I also may have ruled that you could not see some of the exhibits that the lawyers
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`wanted you to see. And, sometimes I may have ordered you to disregard things that you saw or
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`heard, or that I struck from the record. You must completely ignore all of these things. Do not
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`speculate about what a witness might have said or what an exhibit might have shown. These things
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`are not evidence, and you are bound by your oath not to let them influence your decision in any
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`way. Make your decision based only on the evidence, as I have defined it here, and nothing else.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 5 of 47 PageID #: 17861
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`1.4. DIRECT AND CIRCUMSTANTIAL EVIDENCE
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`You may have heard the terms “direct evidence” and “circumstantial evidence.”
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`Direct evidence is simply evidence like the testimony of an eyewitness which, if you
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`believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believe
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`him, that would be direct evidence that it was raining.
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`Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If
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`someone walked into the courtroom wearing a raincoat covered with drops of water and carrying
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`a wet umbrella, that would be circumstantial evidence from which you could conclude that it was
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`raining.
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`It is your job to decide how much weight to give the direct and circumstantial evidence.
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`The law makes no distinction between the weight that you should give to either one, nor does it
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`say that one is any better evidence than the other. You should consider all the evidence, both direct
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`and circumstantial, and give it whatever weight you believe it deserves.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 6 of 47 PageID #: 17862
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`1.5. CONSIDERATION OF EVIDENCE
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`You should use your common sense in weighing the evidence. Consider it in light of your
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`everyday experience with people and events, and give it whatever weight you believe it deserves.
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`If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to
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`reach that conclusion.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 7 of 47 PageID #: 17863
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`1.6. STATEMENTS OF COUNSEL
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`A further word about statements of counsel and arguments of counsel. The attorneys’
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`statements and arguments are not evidence. Instead, their statements and arguments are intended
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`to help you review the evidence presented.
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`If you remember the evidence differently from the way it was described by the attorneys,
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`you should rely on your own recollection.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 8 of 47 PageID #: 17864
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`1.7. CREDIBILITY OF WITNESSES
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`You are the sole judges of each witness’s credibility. You may believe everything a witness
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`says, or part of it, or none of it. You should consider each witness’s means of knowledge; strength
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`of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it
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`is consistent or inconsistent; whether it has been contradicted; the witness’s biases, prejudices, or
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`interests; the witnesses’ manner or demeanor on the witness stand; and all circumstances that,
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`according to the evidence, could affect the credibility of the testimony.
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`In determining the weight to give to the testimony of a witness, you should ask yourself
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`whether there was evidence tending to prove that the witness testified falsely about some important
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`fact, or, whether there was evidence that at some other time the witness said or did something, or
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`failed to say or do something, that was different from the testimony he gave at the trial. You have
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`the right to distrust such a witness’s testimony in other particulars and you may reject all or some
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`of the testimony of that witness or give it such credibility as you may think it deserves.
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`You should remember that a simple mistake by a witness does not necessarily mean that
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`the witness was not telling the truth. People may tend to forget some things or remember other
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`things inaccurately. If a witness has made a misstatement, you must consider whether it was simply
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`an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it
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`concerns an important fact or an unimportant detail.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 9 of 47 PageID #: 17865
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`1.8. NUMBER OF WITNESSES
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`One more point about the witnesses. Sometimes jurors wonder if the number of witnesses
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`who testified makes any difference.
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`Do not make any decisions based only on the number of witnesses who testified. What is
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`more important is how believable the witnesses were, and how much weight you think their
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`testimony deserves. Concentrate on that, not the numbers.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 10 of 47 PageID #: 17866
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`1.9. EXPERT WITNESSES
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`Expert testimony is testimony from a person who has a special skill or knowledge in some
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`science, profession or business. This skill or knowledge is not common to the average person but
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`has been acquired by the expert through special study or experience.
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`In weighing expert testimony, you may consider the expert’s qualifications, the reasons for
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`the expert’s opinions, and the reliability of the information supporting the expert’s opinions, as
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`well as the factors I have previously mentioned for weighing testimony of any other witness.
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`Expert testimony should receive whatever weight and credit you think appropriate, given all the
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`other evidence in the case. You are free to accept or reject the testimony of experts, just as with
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`any other witness.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 11 of 47 PageID #: 17867
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`1.10.
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`DEPOSITION TESTIMONY
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`Deposition testimony is out of court testimony given under oath and is entitled to the same
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`consideration you would give it had the witnesses personally appeared in court.
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`During the trial, certain testimony was presented to you by the reading of a deposition
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`transcript or the playing of video excerpts from a deposition. If played by video, the deposition
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`testimony may have been edited or cut to exclude irrelevant testimony. You should not attribute
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`any significance to the fact that the deposition videos may appear to have been edited.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 12 of 47 PageID #: 17868
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`1.11.
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`USE OF INTERROGATORIES
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`You may have heard answers that the parties gave in response to written questions
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`submitted by the other side. The written questions are called “interrogatories.” The written answers
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`were given in writing and under oath, before the trial.
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`You must consider the parties’ answers to interrogatories in the same manner as if the
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`answers were made from the witness stand.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 13 of 47 PageID #: 17869
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`1.12.
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`REQUESTS FOR ADMISSION AND UNCONTESTED FACTS
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`The parties have stipulated that certain facts are not disputed, or have agreed to or stipulated
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`that they are true, and some of those stipulations have been read to you during this trial, sometimes
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`referred to as “Uncontested Facts” or “Requests for Admission.” You must treat these facts as
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`having been proved for the purposes of this case.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 14 of 47 PageID #: 17870
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`1.13.
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`EXHIBITS
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`During the course of the trial, you have seen many exhibits. Many of these exhibits were
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`admitted as evidence. You will have these admitted exhibits in the jury room to consider as
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`evidence for your deliberations.
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`The remainder of the exhibits (including charts, PowerPoint presentations and animations)
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`were offered to help illustrate the testimony of the various witnesses. These illustrative exhibits,
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`called “demonstrative exhibits,” will not be in the jury room and have not been admitted, are not
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`evidence, and should not be considered as evidence. Rather, it is the underlying testimony of the
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`witness that you heard when you saw the demonstrative exhibits that is the evidence in this case.
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`In some instances, certain charts and summaries may have been received into evidence to
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`illustrate information brought out in the trial. You may use these charts and summaries as evidence,
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`even though the underlying documents and records may not be here. You should give them only
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`such weight as you think they deserve.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 15 of 47 PageID #: 17871
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`1.14.
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`BURDENS OF PROOF
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`In any legal action, facts must be proven by a required standard of evidence, known as the
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`“burden of proof.” In a case such as this, the burden of proof is called “preponderance of the
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`evidence.”
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`ME2C is accusing each Defendant of patent infringement. ME2C has the burden of
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`proving for each Defendant its claims and the amount of its money damages, if any, by a
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`preponderance of evidence. That means that ME2C has to produce evidence which, when
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`considered in light of all of the facts, leads you to believe that what ME2C claims is more likely
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`true than not. To put it differently, if you were to put the evidence of ME2C and a Defendant
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`concerning infringement on opposite sides of a scale, the evidence supporting ME2C’s claims
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`would have to make the scales tip somewhat on its side in each instance. If the scale should remain
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`equal or tip in favor of that Defendant, you must find for that Defendant.
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`If you find that a Defendant infringed one or more of ME2C’s patents, then as a separate
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`question, ME2C has also asserted that the infringement of the patents was willful. ME2C has the
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`burden of proving for each Defendant this additional contention by a preponderance of the
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`evidence.
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`Some of you may have heard the phrase “proof beyond a reasonable doubt.” That burden
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`of proof applies only in criminal cases and has nothing to do with a civil case like this one. You
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`should therefore not consider it in this case.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 16 of 47 PageID #: 17872
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`1.15.
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`USE OF NOTES
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`You may use notes taken during trial to assist your memory. However, as I instructed you
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`at the beginning of the case, you should use caution in consulting your notes. There is generally a
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`tendency I think to attach undue importance to matters which one has written down. Some
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`testimony which is considered unimportant at the time presented, and thus not written down, takes
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`on greater importance later in the trial in light of all the evidence presented. Therefore, your notes
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`are only a tool to aid your own individual memory, and you should not compare notes with other
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`jurors in determining the content of any testimony or in evaluating the importance of any evidence.
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`Your notes are not evidence, and are by no means a complete outline of the proceedings or a list
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`of the highlights of the trial.
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`Above all, your memory should be your greatest asset when it comes time to deliberate and
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`render a decision in this case.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 17 of 47 PageID #: 17873
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`2. THE PARTIES AND THEIR CONTENTIONS
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`2.1. THE PARTIES
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`I will now review for you the parties in this action, and the positions of the parties that you
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`will have to consider in reaching your verdict.
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`The plaintiffs in this case are Midwest Energy Emissions Corp. and MES Inc., which I may
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`refer to as “ME2C” or “Plaintiff.”
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`The defendants in this case are:
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`• CERT Operations RCB LLC
`• CERT Operations II LLC
`• CERT Operations IV LLC
`• CERT Operations V LLC
`• Senescence Energy Products LLC
`• Bascobert (A) Holdings LLC
`• Buffington Partners LLC
`• Larkwood Energy LLC
`• Rutledge Products LLC
`• Cottbus Associates LLC
`• Springhill Resources LLC
`• Marquis Industrial Company LLC
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` I may refer to this group of entities as the Defendants.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 18 of 47 PageID #: 17874
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`2.2. THE PARTIES’ CONTENTIONS
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`There are two patents at issue in this case: United States Patent Nos. 10,343,114; and
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`10,596,517. You heard the lawyers and witnesses in the case refer to ME2C’s patents as the ’114,
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`and ’517 patents or the “ME2C patents.” Copies of the ME2C patents have been given to you.
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`ME2C contends that each Defendant induced and contributed to infringement of the ME2C
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`patents, that the infringement was willful, and that ME2C is entitled to damages.
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`Each Defendant denies that it infringed the ME2C patents, or that it did so willfully. Each
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`Defendant also denies that ME2C is entitled to recover any damages related to the patents.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 19 of 47 PageID #: 17875
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`2.3. SUMMARY OF THE PATENT ISSUES
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`I will now summarize the patent issues that you must decide and for which I will provide
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`instructions to guide your deliberations. The specific questions you must answer are listed on the
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`verdict sheet you will be given. Here are the issues you must decide:
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`• Whether ME2C has proven by a preponderance of the evidence that each Defendant
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`induced infringement by a power plant of one or more of the asserted claims of the ’114
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`and ’517 patents.
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`• Whether ME2C has proven by a preponderance of the evidence that each of the CERT
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`RC Defendants contributed to the infringement by a power plant of one or more of the
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`asserted claims of the ’114 and ’517 patents.
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`•
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`If you decide that ME2C has proven that a Defendant infringed one or more of the
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`asserted claims of the patents, whether ME2C has proven by a preponderance of the
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`evidence that Defendant willfully infringed that claim.
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`•
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`If you decide that ME2C has proven that a Defendant infringed a claim, what monetary
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`damages ME2C has proven by a preponderance of the evidence that it is entitled to.
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`I will provide more detailed instructions on each of the issues you must decide elsewhere
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`in these jury instructions.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 20 of 47 PageID #: 17876
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`3. THE PATENT CLAIMS
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`3.1. PATENT LAWS
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`At the beginning of the trial, I gave you some general information about patents and the
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`patent system and a brief overview of the patent laws relevant to this case. I will now give you
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`more detailed instruction about the patent laws that specifically relate to this case.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 21 of 47 PageID #: 17877
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`3.2. PATENT “CLAIMS” GENERALLY
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`Before you can decide many of the issues in this case, you will need to understand the role
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`of patent “claims.”
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`The patent claims are the numbered paragraphs at the end of each patent. The claims are
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`important because it is the words of the claims that define what a patent covers. Only the claims
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`of a patent can be infringed.
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`The claims are intended to define, in words, the bounds of an invention. The figures and
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`text in the rest of the patent provide a description and/or examples of the invention and provide a
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`context for the claims, but it is the claims that define the breadth of the patent’s coverage. Each of
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`the asserted claims must be considered individually.
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`In patent law, the requirements of a claim are often referred to as “claim elements” or
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`“claim limitations.” For example, a claim that covers a process for making a round cake may recite
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`the steps of (1) making cake batter, (2) pouring the batter into a round cake pan, and (3) baking it
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`in an oven. Each of the three steps is a separate limitation of the claim. When a process meets each
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`and every limitation of a claim, the claim is said to “cover” that process, and that process is said
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`to “fall” within the scope of that claim.
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`Each claim may cover more or less than another claim. Therefore, what a patent covers
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`depends, in turn, on what each of its claims covers.
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`You will first need to understand what each claim covers in order to decide whether there
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`is infringement of the claim.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 22 of 47 PageID #: 17878
`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 22 of 47 PagelD #: 17878
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`3.3. CONSTRUCTION OF THE CLAIMS
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`It is the Court’s duty under the law to define what the patent claims mean. AsI instructed
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`you at the beginning of the case, I have made my determinations, and I will now instruct you on
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`the meaning,or “construction”, of the claim terms. You must apply the meaningthat I give in each
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`patent claim to decide if the claim is infringed. You must accept mydefinitions of these words in
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`the claims as being correct. You must ignore any different definitions used by the witnessesor the
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`attomeys.
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`You are advised that the following definition for the following term must be applied:
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`Claim Term
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`Claim Term
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`Construction
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`'114 Patent, Claim 25|injecting a sorbent material|injecting a sorbent material comprising
`comprising activated carbon|activated carbon into the mercury-
`into the mercury-containing|containing gas downstream of, and from
`gas downstream ofthe
`outside, the combustion chamber
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`combustion chamber
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`For any words in the claim for which I have not provided you with a definition, you should
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`apply the plain and ordinary meaningto a person of ordinary skill in theart.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 23 of 47 PageID #: 17879
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`3.4. INDEPENDENT AND DEPENDENT CLAIMS
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`This case involves two types of patent claims: independent claims and dependent claims.
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`An independent claim does not refer to any other claim of the patent and sets forth all of
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`the requirements that must be met in order to be covered by that claim. Thus, it is not necessary to
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`look at any other claim to determine what an independent claim covers.
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`In this case, claim 25 of the ’114 patent and claim 1 of the ’517 patent are each independent
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`claims. An independent claim must be read separately from the other claims to determine the scope
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`of the claim.
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`The remaining two asserted claims are dependent claims. A dependent claim does not itself
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`recite all of the requirements of the claim but refers to another claim or claims for some of its
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`requirements. In this way, the claim “depends” on another claim or claims. A dependent claim
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`incorporates all of the requirements of the claims to which it refers. The dependent claim then adds
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`its own additional requirements. To determine what a dependent claim covers, it is necessary to
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`look at both the dependent claim and any other independent claims to which it refers.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 24 of 47 PageID #: 17880
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`3.5. OPEN ENDED OR “COMPRISING” CLAIMS
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`The beginning portion, or preamble, of the asserted claims has the word “comprising.” The
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`word “comprising” means “including the following but not excluding others.” A claim that uses
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`the word “comprising” or “including” is not limited to methods having only the elements that are
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`recited in the claim, but also covers methods that have additional elements.
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`If you find, for example, that the accused conduct includes all of the elements of a particular
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`claim, the fact that the accused conduct might include additional steps would not avoid
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`infringement of the claim.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 25 of 47 PageID #: 17881
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`4. INFRINGEMENT
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`4.1. INFRINGEMENT GENERALLY
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`I will now instruct you how to decide whether ME2C has proven by a preponderance of
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`the evidence (i.e., that it is more likely than not) that Defendants infringed the asserted claims of
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`the patents-in-suit.
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`As I stated earlier, ME2C has alleged infringement of the ’114 and ’517 patents in this
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`case.
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`A claim of a patent may be infringed directly or indirectly. As explained further in the
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`following Instructions, direct infringement results if the accused process is covered by at least one
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`claim of the patent. Indirect infringement results if a defendant induces another to infringe a claim
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`of a patent or contributes to the infringement of a claim of a patent by another.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 26 of 47 PageID #: 17882
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`4.2 DIRECT INFRINGEMENT
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`ME2C does not allege that Defendants directly infringe any asserted claim. Instead, ME2C
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`alleges that each Defendant induced one or more power plants to infringe one or more of the
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`asserted claims, and that the CERT RC Defendants contributed to infringement of those claims by
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`power plants. A finding of induced infringement or contributory infringement requires a showing
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`that someone has directly infringed. ME2C alleges power plants that are Defendants’ customers
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`have directly infringed one or more asserted claims.
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`To find that a power plant has directly infringed an asserted claim, you must compare the
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`accused conduct of that power plant with the asserted claim, using my Construction of the Claims
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`instruction concerning the meaning of the terms the patent claims use.
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`A patent claim is directly infringed only if the power plant’s conduct includes each and
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`every step recited in that patent claim. If a power plant does not perform one or more steps recited
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`in a claim, the power plant does not directly infringe that claim. You must determine direct
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`infringement with respect to each patent claim individually. The accused conduct should be
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`compared to the invention described in each patent claim it is alleged to infringe.
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`A power plant can directly infringe a patent without knowing of the patent or without
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`knowing that what the power plant is doing is patent infringement. Thus, while ME2C must prove
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`that a Defendant knew of or was willfully blind to a patent to prove induced or contributory
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`infringement, ME2C is not required to prove that any power plant was aware of any of the asserted
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`ME2C patents, or that the power plant knew its conduct directly infringed.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 27 of 47 PageID #: 17883
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`4.3. INDUCED INFRINGEMENT
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`ME2C alleges that Defendants are liable for infringement by actively inducing power
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`plants to engage in acts that directly infringe one or more claims of the asserted ME2C patents.
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`You must determine whether there has been active inducement on a Defendant-by-Defendant and
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`claim-by-claim basis. This may be shown by direct or circumstantial evidence. A given Defendant
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`is liable for active inducement of a claim only if ME2C proves by a preponderance of the evidence
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`each of the following:
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`1. that the Defendant took some affirmative action, intending to cause a power plant to
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`directly infringe one or more asserted claims of the asserted ME2C patents;
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`2. that the Defendant knew of the asserted ME2C patent, or showed willful blindness to
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`the existence of the asserted ME2C patent, at that time;
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`3. that the Defendant knew, or showed willful blindness, that the actions of the power plant
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`would infringe the asserted claim; and
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`4. that the Defendant’s actions actually caused the power plant to perform each and every
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`step of the asserted claim.
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`To find willful blindness of infringement, the Defendant must have believed that there was
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`a high probability that the actions of its power plant customer infringed an asserted ME2C patent
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`and taken deliberate steps to avoid learning of that customer’s infringement. A belief that a patent
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`is invalid is not a defense to induced infringement.
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`The mere fact, if true, that a Defendant knew or should have known that there was a
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`substantial risk that a power plant would infringe a claim would not be sufficient for active
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`inducement of infringement.
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`Inducing infringement cannot occur unintentionally. It is not enough for a Defendant to
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`cause a power plant to engage in conduct that happens to amount to direct infringement. Rather,
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 28 of 47 PageID #: 17884
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`to have induced infringement, the Defendant must have taken an affirmative act that caused a
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`power plant to engage in conduct that the Defendant knew—or believed with high probability, but
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`deliberately avoided confirming—was direct infringement.
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`To find that a power plant has directly infringed you must compare the accused conduct
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`with each patent claim ME2C asserts is infringed, using my instruction as to the meaning of the
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`terms the patent claims use.
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`In order to establish inducement of infringement, it is not sufficient that the Defendant’s
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`power plant customer directly infringed the claim. Nor is it sufficient that the Defendant was
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`aware of the actions of the power plant that allegedly constitute the direct infringement. Rather,
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`you must find that the Defendant specifically intended that the power plant would infringe the
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`patent claim at issue, or that the Defendant believed there was a high probability that the power
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`plant would infringe ME2C’s patents but remained willfully blind to the infringing nature of the
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`power plant’s acts, in order to find inducement of infringement.
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 29 of 47 PageID #: 17885
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`4.4. CONTRIBUTORY INFRINGEMENT
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`ME2C also asserts that each CERT RC Defendant has contributed to infringement by
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`power plants. As with induced infringement, you must determine whether there has been
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`contributory infringement by each of the CERT RC Defendants on a Defendant-by-Defendant and
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`claim-by-claim basis. The CERT RC Defendants are Senescence Energy Products LLC, Bascobert
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`(A) Holdings LLC, Buffington Partners LLC, Larkwood Energy LLC, Rutledge Products LLC,
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`Cottbus Associates LLC, Springhill Resources LLC, and Marquis Industrial Company LLC. There
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`is not a contributory infringement claim against the CERT Operations Defendants. A given CERT
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`RC Defendant is liable for contributory infringement of a given claim only if ME2C proves by a
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`preponderance of the evidence each of the following:
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`1. that a power plant has directly infringed one or more claims of an asserted ME2C patent;
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`2. that the Defendant sold that power plant refined coal made with calcium bromide;
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`3. that the Defendant knew that the refined coal supplied to that power plant, as sold and
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`delivered during the damages period, is not a staple article or commodity of commerce capable of
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`substantial non-infringing use;
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`4. that the refined coal constituted a material part of the claimed invention; and
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`5. that the Defendant knew that the refined coal was especially made or adapted for use in
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`an infringing method.
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`A “staple article or commodity of commerce capable of substantial non-infringing use” is
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`something that had uses other than as a part or component of the asserted claim, and those other
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`uses were not occasional, farfetched, impractical, experimental, or hypothetical.
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`The Defendant’s knowledge that the component was especially made or adapted for use in
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`an infringing method may be shown with evidence of willful blindness, as I previously explained
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`when discussing induced infringement. To find willful blindness, the Defendant must have
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`Case 1:19-cv-01334-CJB Document 689 Filed 03/01/24 Page 30 of 47 PageID #: 17886
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`believed that there was a high probability that a patent existed covering the accused method and
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`must have taken deliberate actions to avoid learning of the patent.
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`Contributory infringement requires only proof of a Defendant’s knowledge, not intent, that
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`the activity causes infringement.
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`Proof that the Defendant knew its activity might infringe is not sufficient to show
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`contributory infringement. Similarly, if a Defendant reasonably believed it did not infringe, even
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`if that belief was incorrect, the Defendant does not have knowledge of infringement. Instead,
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`contributory infringement requires proof the Defendant actually knew the acts were infringing.
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`However, a belief that a patent is invalid is not a defense to contributory infringement.
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`Let me say a few final words about the “refined coal” that may be considered when you
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`assess the