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Ingevity Corp. v. Basf Corp.

United States District Court, D. Delaware

June 4, 2019

INGEVITY CORPORATION and INGEVITY SOUTH CAROLINA, LLC, Plaintiffs,
v.
BASF CORPORATION, Defendant.

          Karen E. Keller, John W. Shaw, Nathan R. Hoeschen, SHAW KELLER LLP, Wilmington, DE; Jeffrey T. Thomas, GIBSON, DUNN & CRUTCHER LLP, Irvine, CA; Frederick S. Chung, GIBSON, DUNN & CRUTCHER LLP, Palo Alto, CA; Brian M. Buroker, GIBSON, DUNN & CRUTCHER LLP, Washington, DC. Attorneys for Plaintiffs.

          Rodger D. Smith II, Anthony D. Raucci, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; James P. Brogan, Thomas J. Friel, Jr., KING & SPALDING LLP, Palo Alto, CA; Brian Eutermoser, Kevin Lake, Angela Tarasi, KING & SPALDING LLP, Denver, CO. Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently before the Court are Plaintiffs' motion for a preliminary injunction (D.I. 13) and Defendant's related motions for leave to file a sur-reply (D.I. 50) and leave to file a supplemental brief (D.I. 92). I have reviewed the parties' briefing and related filings (D.I. 14, 21, 36, 50, 52, 91, 92). For the following reasons, Plaintiffs' motion is DENIED. Therefore, Defendant's motions to file additional briefing are DISMISSED AS MOOT.

         I. BACKGROUND

         On September 6, 2018, Plaintiffs brought this action against Defendant alleging infringement of U.S. Patent No. RE38, 844 ("the '844 patent"). (D.I. 1). The '844 patent is a reissue of U.S. Patent No. 6, 540, 815. (Id. ¶ 14).

         The '844 patent relates to "a method for reducing emissions from evaporative control systems," specifically, by using "vapor-adsorbing materials in hydrocarbon fuel consuming engines." '844 patent at 1:14-23. Evaporation of gasoline from motor vehicles is a major source of hydrocarbon air pollution. Id. at 1:27-28. The claimed invention is aimed at targeting a subset of evaporative emissions known as "diurnal breathing loss" emissions. Id. at 3:43-45. Such emissions typically occur when a vehicle is parked and subject to ambient temperature changes. '844 patent at 2:44-47.

         Evaporative emissions are commonly controlled by canister systems that use activated carbon to adsorb and hold the vapor that evaporates. Id. at 1:32-42. The adsorbed vapor is periodically removed from the carbon, which then allows the regenerated carbon to adsorb additional vapor. Id. Not all vapor is removed in the regeneration step, however, and the residual vapor may be emitted through diurnal breathing losses. Id. at 2:37-47. The claimed invention aims to address that issue "by the use of multiple layers, or stages, of adsorbents." Id. at 3:43-45.

         Key to the claimed invention is the use of multiple adsorbents having different adsorption characteristics. See Id. at 3:46-53. Each claim of the '844 patent requires the use of materials with certain "incremental adsorption capacity." For example, claim 1 provides:

A method for reducing fuel vapor emissions in automotive evaporative emissions control systems comprising the steps of contacting the fuel vapor with an initial adsorbent volume having incremental adsorption capacity at 25° C. of greater than 35 g n-butane/L between vapor concentrations of 5 vol % and 50 vol % n-butane and at least one subsequent adsorbent volume having an incremental adsorption capacity of less than 35 g n-butane/L between vapor concentrations of 5 vol % and 50 vol % n-butane.

Id. at 10:36-44 (emphasis added). The '844 patent does not define "incremental adsorption capacity."

         II. LEGAL STANDARD

         "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "A preliminary injunction is an extraordinary remedy never awarded as of right." Id. at 24.

         To establish a likelihood of success on the merits in a patent infringement suit, the patentee "must show that it will likely prove infringement, and that it will likely withstand challenges, if any, to the validity of the patent." Tinnus Enterprises, LLC v. Telebrands Corp., 846 F.3d 1190, 1202 (Fed. Cir. 2017) (quoting Titan Tire Corp. v. Case New Holland, Inc.,566 F.3d 1372, 1376 (Fed. Cir. 2009)). "An accused infringer 'can defeat a showing of likelihood of success on the merits by demonstrating a substantial question of ...


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