Sometimes you see a group of patents, and you just know there's a story there. The first patent will be something benign like an "apparatus for getting to stuff stuck in the back of the drawer." Then, a few years later, there's a new patent from the same inventors for "an apparatus for catching the very large spiders that are sometimes also in the back of the drawer." Some time later, their heirs will file a patent for "a system for automatically extinguishing the towering inferno resulting from the SRS (Spider Retention System)."
This brings us to last week's opinion in Evonik Ops. GmbH v. Air Prods. and Chem., Inc., C.A. No. 22-1543-JPM, D.I. 58 (D. Del. July 24, 2024). The first patent there was an elaborate system for separating gases in a mixture. One of those stages required a specific gas stream to account for less than 60% of the total stream by volume. Then, years later, they were granted a near-identical patent on a system for separating gases where that same stream had to account for more than 60% of the total volume.
The defendants moved to dismiss the direct infringement claims as to one of the patents, arguing that the system, by definition, could only infringe one or the other (i.e., the gas could either be more or less than 60%, not both).
The Court denied this ...
