Nalco Co. v. Chem-Mod, LLC, No. 14 C 2510, Slip Op. (N.D. Ill. Oct. 15, 2015) (Darrah, J.).

Judge Darrah granted defendants’ motion to dismiss defendants’ motion to dismiss plaintiff Nalco’s Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) in this patent case involving a method for reducing mercury emission from flue gasses created during coal combustion.

As an initial matter, the Court held that Nalco’s arguments that defendants’ Section 45 tax credits – obtained for selling refined coal – did not sufficiently prove defendants’ direct infringement or control.

Defendants argued that their accused Chem-Mod Solution could not meet the patent’s “injection” requirement. Nalco countered that defendants’ argument required claim construction that was premature at the Rule 12 stage.  The Court held that Nalco had not sufficiently pled infringement because no construction could make the Chem-Mod Solution meet the patent’s “injection” requirement.  Furthermore, Nalco failed to allege that defendants were responsible for preparing the Chem-Mod Solution mixture and injected the coal.

The Court also dismissed Nalco’s indirect infringement claim because Nalco had not sufficiently pled direct infringement and because Nalco did not plead any facts supporting that the accused solutions lacked substantial non-infringing uses.