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Nalco Co. v. Chem-Mod, LLC

United States District Court, N.D. Illinois, Eastern Division

February 4, 2015

NALCO COMPANY, Plaintiff,
v.
CHEM-MOD, LLC; ARTHUR J. GALLAGHER & CO.; and GALLAGHER CLEAN ENERGY, LLC, Defendants

For Nalco Company, Plaintiff: Ari Bernard Lukoff, LEAD ATTORNEY, PRO HAC VICE, Robins, Kaplan, Miller & Ciresi Llp, Minneapolis, MN; Christopher K. Larus, LEAD ATTORNEY, PRO HAC VICE, Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN; James Terrence Hultquist, LEAD ATTORNEY, Reed Smith LLP, Chicago, IL; Bryan J Vogel, PRO HAC VICE, Robins, Kaplan, Miller & Ciresi L.L.P., New York, NY; Keyonn L Pope, Reed Smith, Llp, Chicago, IL; Michael M. Geoffrey, Clark Hill PLC, Chicago, IL.

For Chem-Mod, LLC, Defendant: Paul J Kremer, LEAD ATTORNEY, Joseph Evall, Richard W Mark, Gibson, Dunn & Crutcher LLP, New York, NY; Sherry Lee Rollo, Husch Blackwell LLP, Chicago, IL; Steven Eric Feldman, Husch Blackwell, Chicago, IL.

For Arthur J. Gallagher & Co., Gallagher Clean Energy, LLC., Defendants: Paul J Kremer, LEAD ATTORNEY, PRO HAC VICE, Gibson Dunn and Crutcher LLP, New York, NY.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, United States Magistrate Judge.

Plaintiff Nalco Company (" Nalco") has brought this action alleging patent infringement against Defendants Chem-Mod, LLC (" Chem-Mod"); Arthur J. Gallagher & Co. (" AJG"); and Gallagher Clean Energy, LLC (" GCE"). Defendants have moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. For the reasons discussed below, Defendants' Motion [25] is granted. The First Amended Complaint is dismissed without prejudice.

BACKGROUND

The following is taken from the First Amended Complaint (" FAC"), which is assumed to be true for purposes of a motion to dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Nalco is a provider of air protection technologies. (FAC ¶ 11.) Nalco is the exclusive licensee of U.S. Patent 6, 808, 692 (the " 692 Patent"), which teaches a method for that reducing mercury emissions from flue gases evolved during the combustion of coal. (Id. ¶ ¶ 12-13.) The 692 Patent was issued by the United States Patent & Trademark Office (" USPTO") on October 26, 2004, and reexamined by the USPTO in April 2014. (FAC ¶ 14.) Specifically, Claim 1 of the 692 Patent teaches:

A method of treating coal combustion flue gas containing mercury, comprising: injecting a bromide compound that is a thermolabile molecular bromine precursor into said flue gas to effect oxidation of elemental mercury to a mercuric bromide and providing alkaline solid particles in said flue gas ahead of a particulate collection device, in order to absorb at least a portion of said mercuric bromide.

( See, e.g., FAC, Ex. A at 10, cl.1.)

According to Nalco, Defendants have infringed the 692 Patent through their use, licensing, sale, and offer of a coal additive system known as " Chem-Mod[TM] Solution." (FAC ¶ ¶ 17, 26, 31.) Chem-Mod[TM] Solution is a method of treating coal combustion flue gas that comprises dual injection of two additives, " MerSorb" and " S-Sorb, " which contain calcium bromide and lime. (Id. ¶ 17.) The additives are mixed with the coal when the coal is on the feed belts and before the coal is fed into the furnace of power plants for burning. (Id.) The additives " react with the contaminant gases" and " are used to absorb toxic gases such as mercury . . . that are emitted during the combustion of coal." (FAC ¶ 17; Ex. B at 2.)

Nalco alleges that Chem-Mod[TM] Solution practices each and every step of Claim 1 of the 692 Patent. (Id. ¶ ¶ 17-18.) In its three-count Amended Complaint, Nalco asserts claims for direct infringement, inducement of infringement, and contributory infringement. (Id. ¶ ¶ 20-21, 25-26, 31-32.)

LEGAL STANDARD

Rule 12(b)(6) permits a defendant to move to dismiss a complaint for " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must allege " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555). Rather, the complaint must provide a defendant " with 'fair notice' of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2) and Twombly, 550 U.S. at 555). When ruling on a motion to ...


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