The court granted defendant's motion for summary judgment of no indirect infringement of plaintiffs' seed germination patent because plaintiffs failed to establish underlying direct infringement. "Plaintiffs have not pointed to any instance of a specific customer using [the accused] products to perform all of the steps of the claimed methods. In fact, plaintiffs did not take discovery from any actual [accused] seed distributors or customers to determine whether they perform the claimed methods. . . . Defendant’s advertising materials do not teach all of the claimed steps in combination and they do not claim that the specific limitations of the claims are met by [the accused product]. . . . "[P]laintiffs must show that customers using [the accused product] according to defendant’s instructions will necessarily perform the claimed methods. [Plaintiffs' expert's] tests do not satisfy this standard; rather, they show only 'hypothetical' instances of infringement. . . . Although this may seem like a high burden to meet at the summary judgment stage, this standard applies only because plaintiffs failed to adduce evidence of at least one example of a specific customer who had performed all of the claimed methods."
EMD Crop Bioscience Inc., et. al. v. Becker Underwood, Inc., 3-10-cv-00283 (WIWD November 3, 2011, Order) (Crabb, J.)