A Defendant Cannot Withhold Evidence Or Contend Evidence Is Unnecessary During Discovery But Argue At Trial That Plaintiff Cannot Meet Its Burden Of Infringement For Lack Of Such Evidence

Plaintiff Magēmā Technology LLC (“Magēmā”) sued Phillips 66, Phillips 66 Co., and WRB Refining LP (together, “Phillips”) asserting two patents related to making residual heavy marine fuel oil (“HMFO”) with low sulfur content. HMFO is used to power large, ocean-going cargo ships and must meet an internationally recognized standard known as International Organization for Standardization 8217:2017 (“ISO 8217”). Two physical properties set by ISO 8217 are relevant: first, the flashpoint for HMFOs must be at least 140 degrees Fahrenheit; second, the sulfur content cannot exceed the maximum amount imposed by the International Maritime Organization.

In 2016, the sulfur content limit was set to 0.5% by weight. Magēmā patented a solution to desulfurize HMFO and thus bring it under the 0.5% limit.