Bromerc Ltd v. Cert Operations LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Bromerc Ltd. (Hong Kong) and Mercex Ltd. (UK)
  • Defendant: CERT Operations, LLC, et al. (Delaware); JPMorgan Chase & Co. (Delaware); JPM Capital Corp. (Delaware)
  • Plaintiff's Counsel: Farnan LLP; Desmarais LLP
• Case Identification: 1:26-cv-00218, D. Del., 03/02/2026
• Venue Allegations: Venue is asserted in the District of Delaware on the basis that all named defendants are entities organized under the laws of Delaware and therefore reside in the district.
• Core Dispute: Plaintiffs allege that Defendants' "Chem-Mod Solution," a process for reducing mercury emissions at coal-fired power plants, infringes a patent related to using bromine to remove mercury from flue gases.
• Technical Context: The technology addresses the removal of mercury, a potent neurotoxin, from the emissions of coal-fired power plants, a significant environmental and public health concern subject to federal regulation.
• Key Procedural History: The patent-in-suit, RE47,980, is a reissue of U.S. Patent 6,878,358. The complaint alleges that the original '358 patent was central to prior litigation involving many of the same defendants (Midwest Energy Emissions Corp. v. Arthur J. Gallagher & Co.), where defendants' own expert allegedly relied upon it as a primary prior art reference. This prior litigation and the patent's reissue status are cited as the basis for Defendants' alleged knowledge and willfulness.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Reissue Patent No. RE47,980 - "Process for Removing Mercury from Flue Gases"

The Invention Explained

• Problem Addressed: The patent addresses the challenge of removing toxic mercury from the flue gases of high-temperature plants like coal-fired power stations Compl. ¶78 Compl. ¶79 Prior methods were described as inefficient, expensive, and particularly ineffective in the presence of sulfur, a common component of coal combustion gas '980 Patent, col. 1:57-61
• The Patented Solution: The invention is a process that introduces bromine or a bromine compound into the furnace or flue gas stream. This occurs at high temperatures (at least 800°C) and in the presence of a sulfur compound, which causes a gas-phase reaction that oxidizes the elemental mercury '980 Patent, abstract '980 Patent, col. 2:15-25 This oxidized mercury is more easily captured and removed by downstream equipment like scrubbers or sorbents, a result the patent claims was contrary to the teachings of the prior art Compl. ¶60 Compl. ¶61
• Technical Importance: The technology offered a significantly more effective and economical method for mercury reduction than prior art chlorine-based or sorbent-based systems, enabling power plants to meet stringent environmental regulations Compl. ¶65 Compl. ¶66

Key Claims at a Glance

• The complaint asserts infringement of at least independent claim 19 and dependent claim 20 Compl. ¶130 Compl. ¶131
• The essential elements of independent claim 19 include:
  • A process for removing mercury from the flue gas of a furnace burning sulfur-containing coal.
  • Feeding bromine to the mercury-containing flue gas.
  • The temperature during the first contact between the bromine and flue gas must be at least 800°C.
  • The process is carried out in the presence of a sulfur compound.
  • A gas phase reaction occurs, producing a bromine-contacted flue gas where the mercury is "essentially completely oxidized."
  • The bromine can be fed to the furnace, to a downstream plant section, or both.
  • Subjecting the resulting flue gas to a cleanup (including a wet scrubbing stage and/or a dry cleanup stage with a sorbent) to substantially remove the oxidized mercury.

III. The Accused Instrumentality

Product Identification

The accused instrumentality is the "Chem-Mod Solution" or "Chem-Mod process," which uses branded reagents named "MerSorb" and "S-Sorb" to create what Defendants call "refined coal" Compl. ¶92 Compl. ¶94

Functionality and Market Context

The complaint alleges the Chem-Mod process involves mixing coal with MerSorb, a 52% calcium bromide (CaBr₂) solution, and S-Sorb, a dry powder sorbent, prior to combustion Compl. ¶94 Compl. ¶95 Compl. ¶99 This treated coal is then combusted in a power plant's furnace, where temperatures allegedly exceed 800°C Compl. ¶96 Upon combustion, the bromine is released and reacts with elemental mercury in the flue gas, oxidizing it Compl. ¶98 The oxidized mercury is then allegedly removed by reacting with S-Sorb particles or capture in other pollution control equipment Compl. ¶99 The complaint alleges Defendants used this process to generate significant revenue and claim federal tax credits intended to encourage mercury reduction Compl. ¶48 Compl. ¶102 A diagram provided in the complaint illustrates the corporate structure and relationships alleged to facilitate the infringing activities Compl. ¶115

IV. Analysis of Infringement Allegations

RE'980 Patent Infringement Allegations

Identified Points of Contention

• Scope Questions: A central dispute may arise over the meaning of "feeding bromine to the mercury-containing flue gas." Defendants may argue that mixing a bromine salt with coal before it is burned is distinct from feeding bromine directly to the flue gas itself, potentially placing their process outside the claim's scope.
• Technical Questions: The complaint alleges that the accused process results in mercury being "essentially completely oxidized" Compl. ¶98 A key factual question for the court will be what degree of oxidation this phrase requires and whether the Chem-Mod process, as practiced, achieves that level. The evidence required to demonstrate the specific chemical reactions occurring inside an active coal furnace may be a point of contention.

V. Key Claim Terms for Construction

• The Term: "feeding bromine to the mercury-containing flue gas"

• Context and Importance: This term is critical because the accused process involves mixing a bromine compound with solid coal prior to combustion, rather than injecting a substance directly into the gaseous flue stream after combustion has begun Compl. ¶95 The viability of the infringement case may depend on whether this pre-mixing falls within the scope of "feeding...to the...flue gas." Practitioners may focus on this term because its construction could be dispositive.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent specification suggests flexibility in the addition point, stating the bromine compound can be added "upstream of the furnace, for example a...coal mill" ('980 Patent, col. 4:25-28). Furthermore, asserted dependent claim 20 explicitly recites "mixing the bromine with the coal to be combusted in the furnace, or upstream of the furnace," which may support an interpretation that the independent claim should be read broadly enough to cover this embodiment '980 Patent, col. 15:18-20
  • Evidence for a Narrower Interpretation: A defendant could argue that the plain language of claim 19, "feeding bromine to the...flue gas," requires introducing the agent into the gaseous stream that exists post-combustion. They might contend that adding it to the solid fuel source is a distinct, unclaimed action and that the broader scope is only covered by the separate dependent claim.

• The Term: "essentially completely oxidized"

• Context and Importance: This limitation defines the required outcome of the chemical reaction. As it lacks a precise numerical value, its meaning is open to interpretation. Plaintiffs must prove the accused process meets this standard, while Defendants may argue it does not.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent's specification describes the invention as achieving "substantial, essentially complete, oxidation of the mercury" which "allows substantial removal" '980 Patent, col. 2:42-45 This suggests the term should be understood functionally, as a degree of oxidation sufficient to enable high-efficiency removal, rather than a literal 100% chemical conversion. The examples show mercury removal rates greater than 99.98% '980 Patent, col. 10:9
  • Evidence for a Narrower Interpretation: A defendant might argue that "completely" implies a very high, near-total conversion of elemental mercury to its oxidized form. They could point to the complaint's own allegation of "up to 98 percent" mercury removal Compl. ¶100 and argue this does not necessarily equate to "essentially complete oxidation."

VI. Other Allegations

• Indirect Infringement: The complaint alleges that CERT Operations LLCs induced infringement by licensing the Chem-Mod Solution, supplying the MerSorb and S-Sorb reagents, and providing operational support to coal plants with the knowledge and intent that they infringe Compl. ¶146 Compl. ¶147 It also pleads contributory infringement, alleging the reagents are a material part of the invention and not a staple article of commerce Compl. ¶148
• Willful Infringement: The complaint alleges willfulness based on Defendants' alleged knowledge of the original '358 patent from prior litigation where it was a key prior art reference Compl. ¶118 Compl. ¶141 It further alleges that Defendants were aware of the reissue proceedings and the issuance of the asserted '980 Patent but continued their allegedly infringing activities Compl. ¶121 Compl. ¶142 Compl. ¶152

VII. Analyst's Conclusion: Key Questions for the Case

• A core issue will be one of claim scope and infringement: does the practice of pre-mixing a bromine salt with solid coal before it enters the furnace fall within the scope of the claim limitation "feeding bromine to the mercury-containing flue gas"? The answer will likely depend on how the court construes this phrase in light of the patent's specification and claim differentiation principles.
• A second key question will be one of willfulness and knowledge: given the allegation that Defendants and their experts extensively relied on the original patent as foundational prior art in separate litigation, can Plaintiffs prove that Defendants' continued use of the Chem-Mod process after the patent reissued constitutes objective recklessness rising to the level of willful infringement?
• Finally, a central question will be one of distributed liability: the complaint describes a complex network of operating companies, parent entities, and financial investors Compl. ¶115 A significant challenge for the court will be to determine which of these many entities can be held liable for infringement, potentially requiring an analysis of agency, alter ego, and joint enterprise theories.