Mallard Creek Polymers Inc v. Dow Chemical Co

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Mallard Creek Polymers, Inc. (North Carolina)
  • Defendant: The Dow Chemical Company (Delaware)
  • Plaintiff's Counsel: Womble Bond Dickinson & US LLP
• Case Identification: 3:13-cv-00665, W.D.N.C., 12/06/2013
• Venue Allegations: Venue is asserted on the grounds that Defendant provides goods in the judicial district, maintains minimum contacts, and that Plaintiff's principal place of business is in the district where it has suffered harm.
• Core Dispute: Plaintiff alleges that Defendant's OPULYN PQG polymer product infringes two patents related to antimicrobial and antistatic polymer compositions.
• Technical Context: The technology involves polymer compositions used as additives or coatings for substrates, such as personal care products, to impart resistance to microbial growth and static electricity.
• Key Procedural History: The complaint alleges that Plaintiff provided Defendant with written notice of infringement of the patents-in-suit "at least as early as September 2012," which may be relevant to the allegation of willful infringement.

Case Timeline

Date	Event
2003-07-03	Priority Date for '753 and '946 Patents
2009-02-17	'753 Patent Issued
2011-07-19	'946 Patent Issued
2012-09-01	Alleged Pre-Suit Notice of Infringement to Dow (approximate date)
2013-12-06	Complaint Filed

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

U.S. Patent No. 7,981,946 - "Antimicrobial and Antistatic Polymers and Methods of Using Such Polymers on Various Substrates"

Issued July 19, 2011

The Invention Explained

• Problem Addressed: The background of the patent describes the tendency of various substrates, particularly plastics, to accumulate undesirable static electrical charge and to host microorganisms that can cause illness, odors, and material damage U.S. Patent No. 7,981,946, col. 1:44-51
• The Patented Solution: The invention is a cationically-charged polymer composition that can be applied as a coating or blended with other materials to provide antimicrobial and/or antistatic properties '946 Patent, abstract The composition is formed from two key components: a noncationic ethylenically unsaturated monomer and an ethylenically unsaturated monomer capable of imparting a positive (cationic) charge to the final polymer '946 Patent, col. 2:1-9
• Technical Importance: The technology provides a method for rendering a wide variety of materials, from industrial plastics to consumer personal care products, resistant to both static buildup and microbial contamination '946 Patent, col. 1:15-24

Key Claims at a Glance

• The complaint alleges infringement of "one or more claims" without specifying which ones Compl. ¶14 Independent claim 74 is representative of the patent's application to personal care products.
• Independent Claim 74: A personal care product comprising:
  • a cationically-charged polymer composition comprising a noncationic ethylenically unsaturated monomer; and
  • an ethylenically unsaturated monomer capable of providing a cationic charge to the polymer composition.

U.S. Patent No. 7,491,753 - "Antimicrobial and Antistatic Polymers and Methods of Using Such Polymers on Various Substrates"

Issued February 17, 2009

The Invention Explained

• Problem Addressed: The patent addresses the technical challenges of static electrical charge accumulation on substrates and the adverse effects of microorganisms on materials and people U.S. Patent No. 7,491,753, col. 1:21-34 '753 Patent, col. 1:46-54
• The Patented Solution: The invention discloses a cationically-charged polymer composition that includes three components: a noncationic monomer, a cationic monomer, and a "steric stabilization component" '753 Patent, abstract This composition, when applied to or blended with a substrate, imparts antimicrobial and/or antistatic properties '753 Patent, col. 2:1-11
• Technical Importance: This approach offers a versatile polymer system for adding antimicrobial and antistatic functionality to a broad array of substrates and materials '753 Patent, col. 1:14-20

Key Claims at a Glance

• The complaint asserts infringement of "one or more claims" without further specification Compl. ¶21 Independent claim 43 is representative of the invention's use in personal care formulations.
• Independent Claim 43: A shampoo, lotion, cream, body wash, or cosmetic, comprising a cationically-charged polymer composition comprising:
  • a noncationic ethylenically unsaturated monomer,
  • an ethylenically unsaturated monomer capable of providing a cationic charge to the polymer composition, and
  • a steric stabilization component incorporated into the cationically-charged polymer composition, wherein the steric stabilization component is a polymerizable surfactant, a monomer having alkoxylated functionality, or is a protective colloid.

III. The Accused Instrumentality

Product Identification

The complaint identifies "certain polymers, including its OPULYN PQG product" as the accused instrumentality Compl. ¶10

Functionality and Market Context

The complaint alleges that the OPULYN PQG product is a polymer that Defendant sells to customers for incorporation into personal care products Compl. ¶15 Compl. ¶22 The plaintiff alleges that Defendant explicitly promotes and instructs customers to use the product in applications such as "body washes, shampoos, and conditioners" Compl. ¶15 Compl. ¶22 The complaint does not provide further technical details on the specific composition or mechanism of operation of the OPULYN PQG product.

IV. Analysis of Infringement Allegations

The complaint provides a high-level, narrative theory of infringement without a detailed, element-by-element mapping of the accused product to the patent claims. The core allegation is that Defendant's OPULYN PQG product is a polymer that "practice[s] at least one claim" of the '946 and '753 patents Compl. ¶10 and that it is sold for incorporation into personal care products Compl. ¶15 Compl. ¶22 Because the complaint does not contain specific factual allegations mapping product features to claim elements, a claim chart summary cannot be constructed.

No probative visual evidence provided in complaint.

• Identified Points of Contention:
  • Compositional Questions: The central dispute will likely involve a factual and chemical analysis to determine if the OPULYN PQG product's composition meets the limitations of any asserted claim. This would include identifying whether the product contains a "noncationic ethylenically unsaturated monomer" and an "ethylenically unsaturated monomer capable of providing a cationic charge," as required by claims in both patents.
  • Scope Questions: For claims of the '753 Patent that require a "steric stabilization component" (e.g., claim 43), a key question will be whether the OPULYN PQG product contains a component that falls within the legal definition of that term. The analysis would question if any part of the accused product's formulation performs this claimed function.

V. Key Claim Terms for Construction

While the complaint does not identify specific claim construction disputes, the nature of the technology suggests that the following terms may become central to the case.

• The Term: "cationically-charged polymer composition"

• Context and Importance: This term defines the fundamental nature of the invention. Its scope will determine which polymer formulations are covered by the patents. The dispute will center on whether the OPULYN PQG product constitutes such a composition.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patents describe the concept generally as a polymer with a "net positive charge" which could be imparted by various heteroatoms, suggesting a functional rather than strictly structural definition '753 Patent, col. 3:11-16
  • Evidence for a Narrower Interpretation: The specifications list specific examples of amine, amide, and quaternary amine monomers that can be used to create the charge '753 Patent, col. 3:17-40 A party may argue that the term should be limited to compositions formed from these or structurally similar monomers.

• The Term: "steric stabilization component"

• Context and Importance: This element is required by several independent claims, including claim 43 of the '753 Patent. Infringement of these claims will hinge on whether the accused OPULYN PQG product contains a component that meets this definition.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: Claim 43 itself defines the term with some breadth, listing three alternative categories: "a polymerizable surfactant, a monomer having alkoxylated functionality, or a protective colloid" '753 Patent, claim 43 This language may support a construction covering a range of chemical structures that perform the stabilization function.
  • Evidence for a Narrower Interpretation: The specification provides examples of stabilizers, such as specific polymerizable surfactants (TREM LF-40) and block copolymers (Pluronic or Tetronic series) '753 Patent, col. 4:45-57 A party could argue that these examples limit the scope of the term to the disclosed embodiments or those that are structurally very similar.

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement.
  • The inducement claim is based on allegations that Defendant sells the OPULYN PQG product while "explicitly promoting and instructing" customers to incorporate it into infringing end-products like shampoos and conditioners Compl. ¶15 Compl. ¶22
  • The contributory infringement claim alleges that the product is a "material part of the invention," is "especially made or especially adapted for use in infringement," and has "no substantial non-infringing uses" Compl. ¶16 Compl. ¶23
• Willful Infringement: The complaint alleges that Defendant's infringement has been and continues to be willful, based on alleged pre-suit knowledge of the patents Compl. ¶19 Compl. ¶26 The factual basis asserted for this knowledge is written notice provided by Plaintiff to Defendant "at least as early as September 2012" Compl. ¶11

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

• A central issue will be one of chemical composition: does the Defendant's OPULYN PQG product, as a matter of scientific fact, contain the specific combination of monomers required by the asserted claims, including a noncationic monomer, a cationic monomer, and, for certain claims, a steric stabilization component?
• The case may also depend on a question of claim construction: how will the court define "steric stabilization component"? The outcome could turn on whether the court adopts a broader, more functional definition based on the alternatives listed in the claim, or a narrower definition limited by the specific examples disclosed in the patent specifications.
• Finally, a key question for potential damages will be willfulness: did the Defendant act with the requisite state of mind after receiving alleged notice of infringement in September 2012, and what evidence will be presented to support or rebut this allegation?