Innovative Environmental Responds To Peroxychem's Amended Claims With 12 Counterclaims - Focus On Anti Trust

By: PRLog
In response to PeroxyChem, LLC.'s amended claim against Innovative Environmental Technologies, Inc. (IET) and Provectus Environmental Products, Inc., (PEP) regarding infringement of the "038" patent, IET and PEP have filed 12 counterclaims, the most significant and damning being ANTI TRUST law violations. We have provided our counterclaims in an effort to keep the entire banking and environmental industries updated and informed with regard to the status of this case.
PRLog - April 8, 2015 - PHILADELPHIA -- Today Innovative Environmental Technologies, Inc. (IET) filed our answer to PeroxyChem, LLC’s patent infringement suit regarding patent 7,785,038 (“the ‘038 patent”)  with defenses ranging from patent invalidity to inequitable conduct, while countering with twelve claims against PeroxyChem, LLC.

One Equity Partners, the global private investment arm of J.P. Morgan Chase & Co., announced on March 3rd, 2014 the completion of the acquisition of PeroxyChem, formerly FMC Global Peroxygens, a business division of FMC Corporation specializing in peroxygen chemistries. The acquisition included all sales, manufacturing, and supply chain and R&D capabilities of FMC Global Peroxygens and was valued at approximately $200 million.

Innovative Environmental Technologies, Inc. (IET) was created in 1998 in response to a need for a technology based remedial contractor without ties to any specific product vendor or consulting engineering company. Since its inception, IET has developed and patented in-house technologies where appropriate, licensed outside technologies when needed and worked with a variety of product vendors in its effort to offer its clients the best and most efficient remedial options. IET has designed, fabricated and built equipment, tooling, and remedial systems that integrate these technologies such that the consulting engineering companies we contract to are assured that they are providing their customers with appropriate and proven integrated remedial solutions. In the past 17 years, IET has performed over 900 remedial projects in over 30 states across the United States. Working with consulting engineering companies across the country, IET evaluates individual site’s data and geochemistries to effectively design and implement the appropriate remedial solutions. IET has earned a reputation in the in situ remediation industry as an innovator. IET is the owner of U.S. Patents 7,129,388, 7,044,152, 7,531,709, 7,828,974 and 8,147,694, as well as pending U.S. Patent Applications 13/785,840, 13/866,158, 13/891,934, 14/268,637, 14/268,637, 14/268,629, 14/488,635 and 14/532,689.

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COUNTERCLAIM I

(Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,785,038)

COUNTERCLAIM II

(Declaratory Judgment Of Invalidity)

COUNTERCLAIM III

(Declaratory Judgment of Unenforceability)

COUNTERCLAIM IV

(Federal and State False Advertising - 15 U.S.C. §1125, 73 Pa §201)

COUNTERCLAIM V

(Tortious Interference with Contract, Business Relationship)

COUNTERCLAIM VI

(Tortious Interference with Economic Advantage)

COUNTERCLAIM VII

(Tortious Interference with Contract, Business Relationship)

COUNTERCLAIM VIII

(Tortious Interference with Economic Advantage)

COUNTERCLAIM IX

(Commercial Disparagement in Pennsylvania)

COUNTERCLAIM X

(State Antitrust – Illegal Restriction on Free Trade under 73 P.S. §201.1 et seq.)

109.          Counterclaim Plaintiffs hereby repeat and incorporate all other responses and allegations contained in this pleading as if set forth at length herein.

110.          PeroxyChem’s course of conduct, including its assertion of an invalid patent, attempt to enforce the patent beyond its proper scope, and attempt to enforce the ‘038 Patent against IET in mid-2014 after a decade of acquiescence, and only after Scalzi’s perceived connection with PeroxyChem’s new competitor, Provectus, is an attempt to illegally restrict freetrade in violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201.1 et seq.

111.        As a result of PeroxyChem’s actions, Counterclaim Plaintiffs IET and Provectus have suffered injury to their business of the type the Unfair Trade Practices Act was designed to prevent, in an amount to be proved at trial.

COUNTERCLAIM XI (Federal Antitrust - Illegal Restriction on Free Trade under 15 USC §1 et seq.)

112.        Counterclaim Plaintiffs hereby repeat and incorporate all other responses and allegations contained in this pleading as if set forth at length herein.

113.        PeroxyChem’s course of conduct, including its assertion of an invalid patent, attempt to enforce the patent beyond its proper scope, and attempt to enforce the ‘038 Patent against IET in mid-2014 after a decade of acquiescence, and for an improper purpose, is an attempt to illegally restrict free trade in violation of the Sherman Act, 15 U.S.C. §1 et seq., and the Clayton Act/Robinson-Patman Act, 15 U.S.C.§12 et seq.

114.        As a result of PeroxyChem’s actions, Counterclaim Plaintiffs IET and Provectus have suffered injury to their business of the type the Sherman Act was designed to prevent.

COUNTERCLAIM XII (Price Discrimination under 15 U.S.C. § 13(a))

115.        Counterclaim Plaintiffs hereby repeat and incorporate all other responses and allegations contained in this pleading as if set forth at length herein.

116.        IET and Provectus bring this Count under the Robinson-Patman Price Discrimination Act, 15 U.S.C. § 13(a).

117.          On January 16, 2014, in testimony before the U.S. International TradeCommission in support of continuing economic sanctions against China for dumping Persulfate chemical products in the United States market, PeroxyChem’s present Chief Executive Officer confirmed that PeroxyChem’s Tonawanda, New York facility is the sole producer of Persulfate products, including Sodium Persulfate, in the United States. [January 16, 2014 Transcript of Bruce Lerner’s Testimony before the U.S. International Trade Commission, at p. 3 (Exhibit “X”)].

118.          At the same hearing before the U.S. International Trade Commission, PeroxyChem’s Chief Marketing Officer testified that “Persulfates are a commodity product. As such, price is a critical component in purchasing decisions.” [January 16, 2014 Transcript of Bruce Lerner’s Testimony before the U.S. International Trade Commission, at p. 3 (Exhibit “X”)].

119.          Upon information and belief, during the relevant period, PeroxyChem and its corporate predecessor, FMC Corporation and its Peroxygens Division, engaged in discriminatory activities with respect to IET and Provectus in the relevant market by giving preferential pricing to other of its customers compared to the prices its charged Provectus and IET for Sodium Persulfate. Upon information and belief, these customers compete with IET and Provectus in the environmental remediation industry.

120.          For example, under a July 1, 2014 Supply Agreement between PeroxyChem and Provectus, PeroxyChem charged Provectus $1.11 per pound for Sodium Persulfate.

121.          On information and belief, PeroxyChem has charged other customers – who compete with Provectus/IET - a substantially lower price for Sodium Persulfate. The price charged to Provectus and IET’s competitors is also upon information and belief substantially less than the average price testified to by Lerner before the commission.

122.          PeroxyChem sold Sodium Persulfate to Provectus, IET, and its other customers on multiple occasions for use in the United States. PeroxyChem shipped these orders in interstate commerce from its Tonawanda, New York production facility to locations throughout the United States.

123.          On multiple occasions, PeroxyChem violated the Robinson-Patman Act by charging Provectus and IET at least 40% more than the prices at which, upon information and belief, PeroxyChem sold to or offered to sell other customers for the identical chemical commodity. PeroxyChem’s discriminatory pricing resulted in Provectus and IET being unable to offer competitive pricing to their customers for certain environmental remediation projects, which decreased the amount of competition in the relevant market throughout the duration of PeroxyChem’s illegal price discrimination.

124.          PeroxyChem’s price discrimination and distribution in favor of, upon information and belief, its other customers and competitors of Provectus and IET lessened competition or tended to create a monopoly in the relevant market, which harmed competition in the relevant market.

125.          As a direct and proximate result of PeroxyChem’s illegal price discrimination, in violation of § 13(a) of the Robinson-Patman Act Price Discrimination Act, Provectus and IET suffered lost profits and other compensable damages.

126.          PeroxyChem’s illegal price discrimination substantially lessened and impaired competition in the relevant market.

127.          PeroxyChem charged favored purchasers significantly less than prices charged to disfavored purchasers, including Provectus and IET, for Sodium Persulfate of the identical grade and quality.

128.          Throughout the time the price differential, PeroxyChem’s other customers and competitors of Provectus/IET and Provectus/IET competed at the same functional level, i.e., both provided environmental remediation services within the same or overlapping geographic markets.

129.          PeroxyChem engaged in substantial price discrimination between competitors over time.

130.          As a proximate result of PeroxyChem’s illegal price discrimination, Provectus and IET suffered lost sales and profits caused by direct competitors in the environmental remediation industry receiving more favorable prices for Sodium Persulfate.

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