CERT Operations II LLC et al. v. Birchtech Corp.

This appeal stems from a patent infringement dispute between CERT Operations II LLC and its affiliated entities (collectively, the "CERT Defendants") and Birchtech Corp. The CERT Defendants are operating companies involved in the refined coal industry, specializing in operations related to coal-fired utilities. Birchtech Corp., formerly known as Midwest Energy Emissions Corp. (ME2C Environmental), is an operating company that is a leader in specialty activated carbon technologies for sustainable air and water treatment. The litigation centers on the alleged infringement of Birchtech's proprietary technologies for mercury emissions capture in the coal-fired utility sector, commercially known as "SEA® (Sorbent Enhancement Additive) Technologies." The primary patent at issue is U.S. Patent No. 10,596,517, which broadly covers sorbents and methods for the oxidation and removal of mercury and other pollutants from flue gas generated during the burning or gasification of fossil fuels, particularly using halogen/halide promoted activated carbon sorbents.

The case is currently on appeal at the Court of Appeals for the Federal Circuit (Case No. 26-1403), filed on January 28, 2026. This appeal challenges a final judgment of approximately $78 million issued by the U.S. District Court for the District of Delaware (Case No. 1:19-cv-01334-CFC). The district court litigation, which commenced in July 2019, resulted in a $57 million jury verdict in March 2024 against the CERT Defendants, finding willful, induced, and contributory infringement. U.S. District Court Judge Christopher J. Burke presided over the district court proceedings, and the final judgment amount was subsequently increased to include pre-judgment and post-judgment interest. The District of Delaware is a significant venue for patent litigation, largely due to its high concentration of incorporated businesses and an experienced judiciary well-versed in patent law.

This litigation is notable for its substantial financial judgment and its impact within the environmental technology sector, particularly concerning mercury emissions control. Birchtech views the verdict as a vindication of its intellectual property and critical to protecting its market position for mercury reduction technologies in coal-fired power plants, which are recognized as "Best Available Control Technology" (BACT). The proceeds from this judgment are also earmarked to fund Birchtech's expansion into novel water purification technologies. Furthermore, Birchtech's patents have been the subject of multiple Inter Partes Review (IPR) petitions at the Patent Trial and Appeal Board (PTAB), including a precedential decision by the USPTO Director in PacifiCorp v. Birchtech Corp., IPR2025-00687, concerning parallel IPR challenges to patents related to mercury removal at coal-combustion facilities, indicating ongoing challenges to the validity of Birchtech's patent portfolio.

This case involves a patent infringement dispute initiated by Birchtech Corp. (formerly Midwest Energy Emissions Corp. (ME2C®)) concerning mercury-capture technology, specifically U.S. Patent No. 10,596,517. The litigation began in the District of Delaware and has proceeded to the Federal Circuit.

Key Legal Developments and Outcome

1. Filing & Initial Pleadings (District Court - D. Del. Case No. 1:19-cv-01334)

• Complaint Filed: Birchtech Corp. (then Midwest Energy Emissions Corp.) filed the initial lawsuit for patent infringement in the U.S. District Court for the District of Delaware on July 17, 2019, against 43 defendants, including major power utilities and refined coal companies. The lawsuit asserted infringement of U.S. Patent Nos. 10,343,114 and 10,596,517.
• Answer and Counterclaims: Defendants, including those identified as "CERT" Defendants, filed their answers and counterclaims. An example of a "Defendant's Answer and Counterclaim" from a related party in the 1:19-cv-01334-RGA case is dated October 9, 2019.

2. Pre-trial Motions of Substance

• Settlements: Prior to trial, Birchtech obtained pre-trial settlements with some defendants, including AJ Gallagher, DTE, and one CERT Defendant, in late 2023.
• Motions affecting judgment calculation: Post-verdict, motions were filed concerning the final calculation of the judgment amount. The Court declined to increase the verdict based on willful infringement but did award pre-judgment interest compounded quarterly at the prime rate, and post-judgment interest.

3. Claim Construction (Markman) Outcomes

• Specific details regarding a Markman order or claim construction hearing for patent 10,596,517 in the District of Delaware case 1:19-cv-01334 were not found in the provided search results.

4. Discovery Milestones with Strategic Significance

• The search results indicate that deposition transcripts, such as that of Michael Holmes, were generated in the Delaware case (e.g., August 24, 2022). This suggests standard discovery proceedings took place.

5. Trial Events, Verdict, and Post-trial Motions

• Jury Trial and Verdict: A five-day jury trial took place in the U.S. District Court for the District of Delaware. On March 1, 2024, the jury delivered a $57 million patent infringement verdict in favor of Birchtech Corp. (then Midwest Energy Emissions Corp.) against a group of defendants including CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC, and CERT Operations RCB LLC. The jury unanimously found willful infringement, along with inducing and contributory infringement. The verdict specifically covered past infringement of U.S. Patent Nos. 10,343,114 and 10,596,517.
• Post-Trial Motions & Final Judgment: Following the verdict, U.S. District Court Judge Christopher J. Burke issued a final memorandum opinion addressing outstanding issues. The Court increased the judgment amount by awarding pre-judgment and post-judgment interest.
• Final Judgment Entered: On December 18, 2025, Birchtech Corp. announced that the U.S. District Court of Delaware had issued a decision increasing its judgment amount to approximately $78 million. The Court ordered a proposed final judgment to be submitted by December 23, 2025.

6. Settlement, Dismissal, Judgment, or Appeal

• Appeal Filed: The CERT Defendants appealed the District Court's $78 million final judgment to the Court of Appeals for the Federal Circuit. The appeal, Case number 26-1403, was filed on January 28, 2026. This case is currently "On Appeal."

7. Parallel PTAB IPR/PGR Proceedings

Several Inter Partes Review (IPR) proceedings have been filed against Patent 10,596,517:

• IPR2025-00280: Filed by Wisconsin Power & Light Co., MidAmerican Energy Co., Interstate Power & Light Co., WEC Energy Group Inc., Berkshire Hathaway Energy Co., and PacifiCorp. on January 24, 2025. This IPR ended in a settlement on January 9, 2026. This petition raised arguments for discretionary denial under 35 U.S.C. § 315(b) and § 312(a)(2) due to the ongoing Delaware action and privity with Chem-Mod LLC and its sublicensees, who were named defendants in the Delaware action.
• IPR2025-00281: Also filed by Wisconsin Power & Light Co., et al. on January 24, 2025. This IPR also ended in a settlement on January 9, 2026. Similar to IPR2025-00280, it involved discussions about discretionary denial based on the Delaware litigation.
• IPR2025-01117: Filed by Union Electric Co. against Birchtech Corp. on June 6, 2025. This IPR was "Not Instituted - Procedural" on November 20, 2025. The petition in IPR2025-01117 also referenced the ongoing Delaware Litigation (1:19-cv-01334-RGA).
• IPR2025-00424: This IPR, with Birchtech Corp. as Patent Owner, references the Delaware district court case 1:19-cv-01334-CJG in filings on September 25, 2025, and June 24, 2025.
• Previous IPRs: Birchtech Corp. (then ME2C) previously asserted the challenged patent in the District Court for the District of Delaware. The PTAB had granted institution of IPR on two earlier petitions against the challenged patent, IPR2020-00832 and IPR2020-00834, both instituted on October 26, 2020. These earlier IPRs and district court matters involved Midwest Energy Emissions Corp. as Patent Owner/Plaintiff.

The settlement of IPR2025-00280 and IPR2025-00281 and the non-institution of IPR2025-01117 indicate that these PTAB proceedings did not ultimately invalidate the patent or halt the ongoing district court litigation for the appealing parties. The Delaware litigation resulted in a substantial judgment despite these PTAB challenges. Birchtech Corp.'s name change from Midwest Energy Emissions Corp. was noted with the USPTO on November 7, 2024, though it indicated it would continue district court litigations under the ME2C name.

Based on available information regarding the underlying District Court case (1:19-cv-01334) from which this appeal originates, the following attorneys represented the plaintiffs, CERT Operations II LLC et al. in the District of Delaware. It is highly probable that these attorneys, or a subset of them, are also representing the plaintiffs in the Federal Circuit appeal (26-1403), given their expertise in patent litigation and appellate practice. However, without direct access to the Federal Circuit's docket for case 26-1403 to confirm their specific Entries of Appearance, their roles in the appeal are inferred from their prior representation.

Here is a breakdown of the likely counsel:

From Morris James LLP (Wilmington, DE):

• Kenneth L. Dorsney
  • Role: Likely lead counsel or co-counsel.
  • Firm: Morris James LLP, Wilmington, DE.
  • Experience: Mr. Dorsney is the Chair of Morris James' intellectual property practice and a registered patent attorney with over 20 years of experience resolving patent, trademark, trade secret, and copyright disputes, primarily in the District of Delaware. He is recognized for his commanding grasp of legal and technical issues and is particularly well-regarded for his work in generic pharmaceuticals litigation. He has served as Editor-in-Chief and Co-Author for the American Bar Association's "ANDA Litigation: Strategies and Tactics for Pharmaceutical Patent Litigators".
• Cortlan S. Hitch
  • Role: Likely counsel or co-counsel.
  • Firm: Morris James LLP, Wilmington, DE.
  • Experience: Mr. Hitch is an attorney in the firm's Intellectual Property Litigation Group, focusing on patent litigation, trademark litigation, and intellectual property counseling. He frequently represents companies in Hatch-Waxman litigations and other high-profile patent disputes in the District of Delaware. He is a contributor to several ABA and AIPLA/Bloomberg Law publications on patent litigation.

From Bradley Arant Boult Cummings LLP (Birmingham, AL, and Washington, D.C.):

• Jeffrey D. Dyess
  • Role: Likely lead counsel or co-counsel.
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL.
  • Experience: Mr. Dyess is a litigation partner with over two decades of experience in intellectual property, competitive practice, trade secret, and complex commercial disputes, representing both plaintiffs and defendants. He is a registered patent attorney and has litigated patent disputes in numerous federal district courts, including Delaware, and has experience before the International Trade Commission and the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office, including appeals to the Federal Circuit.
• Paul M. Sykes
  • Role: Likely lead counsel or co-counsel.
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL.
  • Experience: Mr. Sykes represents businesses and individuals in a wide variety of intellectual property and technology-related legal matters, focusing on patent, copyright, trademark, unfair competition, and trade secret litigation. As a former computer engineer and registered patent attorney, he has handled patent infringement matters involving diverse technologies and litigates these rights in state and federal courts, including appeals. He has been recognized in The Best Lawyers in America® for Litigation - Patent.
• Benn C. Wilson
  • Role: Likely counsel or co-counsel.
  • Firm: Bradley Arant Boult Cummings LLP, Birmingham, AL.
  • Experience: Mr. Wilson is a partner in the firm's Intellectual Property Practice Group, focusing on complex civil litigation, particularly in patent, copyright, trademark, trade secret, and unfair competition. He has represented clients in active patent litigation forums, including the District of Delaware and has substantial experience in Section 337 investigations before the International Trade Commission and appeals before the Federal Circuit. He holds an M.S. and B.S. in chemical engineering.
• Jessica L. Zurlo
  • Role: Likely counsel or co-counsel.
  • Firm: Bradley Arant Boult Cummings LLP, Washington, D.C.
  • Experience: Ms. Zurlo is a partner in the Intellectual Property Practice Group, focusing on patent law and competitive practices litigation. She is registered to practice before the U.S. Patent and Trademark Office and has experience in patent preparation, prosecution, opinion work, and enforcement. She has also helped defend companies accused of patent infringement in district court and before the International Trade Commission, and assisted with appellate work before the Federal Circuit and the U.S. Supreme Court.

Please note that this information is based on their appearances in the preceding District Court case and their professional profiles indicating relevant appellate experience. A direct confirmation from the Federal Circuit docket for case 26-1403 was not obtainable through the search queries.

Based on the available information, Birchtech Corp. (formerly Midwest Energy Emissions Corp.) is represented by Caldwell Cassady & Curry PC in this patent infringement matter. While a direct docket for Federal Circuit case 26-1403 was not publicly accessible through the search, attorneys from Caldwell Cassady & Curry have extensively represented Birchtech (or its predecessor) in the underlying District of Delaware case (1:19-cv-01334) that led to the appeal, as well as in related Patent Trial and Appeal Board (PTAB) proceedings. Their profiles and firm announcements confirm their involvement in all stages of high-stakes patent litigation, including trials and appeals.

The following attorneys from Caldwell Cassady & Curry PC are identified as key counsel for Birchtech Corp., based on their roles in the District Court litigation and related proceedings. It is highly probable they continue to represent Birchtech in the Federal Circuit appeal.

• Bradley W. "Brad" Caldwell

  • Role: Lead Counsel. He served as lead trial counsel in the District of Delaware case, securing the $57 million jury verdict for Midwest Energy Emissions Corp.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: A nationally recognized trial lawyer specializing in patent infringement and complex commercial litigation, with a track record of numerous multimillion-dollar verdicts, including over $3 billion in total. He has experience arguing before the U.S. Court of Appeals for the Federal Circuit.

• Justin T. Nemunaitis

  • Role: Principal Counsel. He was a principal on the trial team in the District of Delaware and is noted for his work before the PTAB for patent owners, including Birchtech Corp.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: Focuses on patent infringement disputes and complex commercial litigation, with experience in all aspects of litigation from pre-suit investigation to trial and appeal. He is admitted to practice before the U.S. Court of Appeals for the Federal Circuit.

• Daniel R. Pearson

  • Role: Principal Counsel. He was a principal on the trial team for the District of Delaware case.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: Focuses on complex commercial litigation and patent infringement disputes, with experience representing clients in federal courts and before the U.S. International Trade Commission. His experience covers the entire spectrum of litigation, including appeals.

• Adrienne Dellinger

  • Role: Counsel. She played a vital role for the trial team in the District of Delaware case.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: An accomplished patent litigator who guides clients through all stages of litigation, including trials and appeals.

• Aisha Mahmood Haley

  • Role: Principal Counsel. She played key roles in the District of Delaware patent infringement trial that resulted in the $57 million verdict.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: Focuses on complex business litigation and patent disputes, with extensive experience in all phases of high-value litigation, including before federal district and appellate courts. She previously clerked for the Hon. Alan D. Lourie at the U.S. Court of Appeals for the Federal Circuit.

• Hamad M. Hamad

  • Role: Principal Counsel. He was explicitly listed as counsel for Birchtech Corp. in PTAB IPR proceedings and was a key member of successful patent trial teams.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: Focuses primarily on intellectual property litigation, with broad experience in cases involving various technologies. He is licensed to practice before the U.S. Court of Appeals for the Federal Circuit.

• Richard Cochrane

  • Role: Associate Counsel. He made significant contributions to the District of Delaware trial team and is noted for his individual work before the PTAB for patent owners.
  • Firm & Office: Caldwell Cassady & Curry PC, Dallas, Texas.
  • Experience: Focuses on complex business litigation and patent disputes, representing clients in federal district courts, appellate courts, and bankruptcy courts.

While Warren McCarty was also associated with Caldwell Cassady & Curry and has significant patent litigation experience, including co-lead counsel role in a $78M patent infringement verdict, recent news indicates he has joined AZA Law and is managing their Dallas office. Therefore, his direct involvement in this specific appeal for Birchtech through Caldwell Cassady & Curry is less certain, although his general experience in patent appeals is notable.

It is important to note that the above information regarding specific roles in the Federal Circuit appeal is inferred from their extensive involvement in the preceding litigation. To confirm counsel of record in the Federal Circuit (26-1403), accessing the official docket for that case would be necessary. Richards, Layton & Finger P.A. is a prominent Delaware-based firm often serving as local counsel in intellectual property matters in the District of Delaware, but there is no explicit indication from the search results that they are representing Birchtech in the Federal Circuit appeal.