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Nalco Co. v. Chem-Mod, LLC

United States Court of Appeals for the Federal Circuit

February 27, 2018, Decided

2017-1036

Opinion

 [*1342]  [***1834]   O'Malley, Circuit Judge.

Nalco Company ("Nalco") appeals from the district court's decision dismissing its Fourth Amended Complaint ("4AC") with prejudice for failure to state a claim upon which relief can be granted. The 4AC alleged infringement of U.S. Patent No. 6,808,692 ("the '692 patent") by Appellees Chem-Mod, LLC, Arthur J. Gallagher & Co., Gallagher Clean Energy, LLC, AJG Coal, Inc., and various Refined Coal LLCs (collectively, "Defendants"). Nalco Co. v. Chem-Mod, LLC (Nalco 4AC Order), No. 14-cv-2510, 2016 U.S. Dist. LEXIS 53624, 2016 WL 1594966 (N.D. Ill. Apr. 20, 2016), reconsideration denied, Nalco Co. v. Chem-Mod, LLC (Nalco 4AC Reconsideration Order), No. 14-cv-2510, 2016 U.S. Dist. LEXIS 124800, 2016 WL 4798950 (N.D. Ill. Sept. 14, 2016). We conclude that the district court erred in dismissing Nalco's [**2]  direct infringement claims and, thus, reverse the district court's order as to those claims. We also reverse the district court's dismissal of Nalco's doctrine of equivalents, indirect, and willful infringement claims. We remand for further proceedings in this matter.

I. Background

A. The Technology

Nalco is the exclusive licensee of the '692 patent, titled "Enhanced Mercury Control in  [***1835]  Coal-Fired Power Plants," which describes a method for the removal of elemental mercury, a toxic pollutant, from the flue gas created by combustion in coal-fired power plants. '692 patent, Abstract. Previous attempts to filter mercury from coal combustion flue gas failed due to lack of commercial viability or excessive expense. Id., col. 1, l. 29-col. 3, l. 51.

The methods claimed in the '692 patent solve this problem by reacting halogens, such as molecular chlorine (Cl2) or molecular bromine (Br2), with elemental mercury (Hg) in flue gas to form mercuric halides (HgCl2 or HgBr2), which precipitate into solid particles that can be filtered from the flue gas more easily. Molecular halides, however, cannot be injected into the flue gas on their own due to their corrosive properties. The '692 patent thus claims the injection of a halide precursor—a molecule [**3]  that reacts to create an elemental halide—into the flue gas. The halide precursor is thermolabile, meaning that it reacts in the heat of the flue gas to create a molecular halide. The '692 patent explains that the preferred location to inject the halide precursor is in the combustion zone of the furnace. Id., col. 4, l. 66-col. 5, l. 27.

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883 F.3d 1337 *; 2018 U.S. App. LEXIS 4862 **; 125 U.S.P.Q.2D (BNA) 1832 ***; 2018 WL 1055851

NALCO COMPANY, Plaintiff-Appellant v. CHEM-MOD, LLC, ARTHUR J. GALLAGHER & CO., GALLAGHER CLEAN ENERGY, LLC., AJG COAL, INC., AJG IOWA REFINED COAL, LLC, MANSFIELD REFINED COAL LLC, COPE REFINED COAL LLC, CROSS REFINED COAL LLC, JEFFERIES REFINED COAL, LLC, JOPPA REFINED COAL, LLC, THOMAS HILL REFINED COAL LLC, WAGNER COALTECH LLC, WALTER SCOTT REFINED COAL LLC, WINYAH REFINED COAL LLC, BEDFORD MIX LLC, BRANDON SHORES COALTECH LLC, CANADYS REFINED COAL, LLC, CORONADO REFINED COAL LLC, FRM TRONA FUELS LLC, FRM VIRGINIA FUELS LLC, GEORGE NEAL NORTH REFINED COAL LLC, GEORGE NEAL REFINED COAL LLC, LOUISA REFINED COAL, LLC, REFINED FUELS OF ILLINOIS, LLC, BELLE RIVER FUELS COMPANY, LLC, Defendants-Appellees

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Illinois in No. 1:14-cv-02510, Senior Judge John W. Darrah.

Nalco Co. v. Chem-Mod, LLC, 2016 U.S. Dist. LEXIS 53624 (N.D. Ill., Apr. 20, 2016)

Disposition: REVERSED AND REMANDED.

CORE TERMS

coal, infringement, injecting, flue, combustion, district court, allegations, power plant, precursor, testing, bromine, coal-fired, induced, Mixture, infringement claim, thermolabile, Defendants', Refined, mercury, molecular, bromide, steps, pled, patent, motion to dismiss, mixed, additives, compound, furnace, doctrine of equivalents

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Pleadings, Complaints, Requirements for Complaint, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, De Novo Review, Business & Corporate Compliance, Infringement Actions, Patent Law, Infringement Actions, Infringing Acts, Patent Law, Infringing Acts, Intent & Knowledge, Doctrine of Equivalents, Elements, Equivalence, Indirect Infringement, Reviewability of Lower Court Decisions, Preservation for Review