DCT

6:25-cv-00259

Graphene Platform Corp v. Nanoxplore Inc

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Graphene Platform Corporation (Japan)
- Defendant: NanoXplore, Inc. (Canada); RMC Advanced Technologies, Inc. (United States)
- Plaintiff’s Counsel: Lee & Naughton, PLLC
Case Identification: 6:25-cv-00259, W.D. Tex., 09/07/2025
Venue Allegations: Plaintiff alleges venue is proper in the Western District of Texas because Defendants conduct substantial business in the district, including committing at least a portion of the alleged infringements, regularly soliciting business, and deriving substantial revenue from the region.
Core Dispute: Plaintiff alleges that Defendant’s industrial graphene powders infringe ten patents related to graphite-based carbon materials characterized by a specific crystalline structure.
Technical Context: The lawsuit concerns graphene, a one-atom-thick layer of carbon atoms with significant industrial applications in composites, batteries, and electronics, where material quality is a critical performance factor.
Key Procedural History: The complaint details pre-suit correspondence beginning January 1, 2024, in which Plaintiff allegedly notified Defendant of the patents-in-suit. This correspondence culminated in Plaintiff sending Defendant a claim chart for U.S. Patent No. 9,428,393 and a lab report on March 19, 2025, allegedly demonstrating infringement. This history may be central to Plaintiff's allegations of willful infringement.

Case Timeline

Date	Event
2014-09-09	Earliest Priority Date for all Patents-in-Suit
2016-08-30	U.S. Patent No. 9,428,393 Issues
2017-01-24	U.S. Patent No. 9,552,900 Issues
2017-03-07	U.S. Patent No. 9,587,134 Issues
2017-03-21	U.S. Patent No. 9,598,593 Issues
2017-09-05	U.S. Patent No. 9,752,035 Issues
2017-11-14	U.S. Patent No. 9,815,987 Issues
2018-01-09	U.S. Patent Nos. 9,862,833 and 9,862,834 Issue
2019-09-24	U.S. Patent No. 10,421,863 Issues
2024-01-01	Plaintiff first contacts Defendant regarding patents
2024-03-12	Defendant declines collaboration invitation
2025-01-14	Plaintiff's representative emails Defendant warning of infringement
2025-01-30	Defendant requests supporting documentation
2025-03-19	Plaintiff provides Defendant with '393 patent claim chart and lab report
2025-09-07	Complaint Filed

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

U.S. Patent No. 9,428,393 - “Graphite-Based Carbon Material Useful as Graphene Precursor, as Well as Method of Producing the Same”

The Invention Explained

Problem Addressed: The patent addresses the difficulty of producing high-quality, highly-concentrated graphene dispersions from natural graphite, noting that conventional methods yield small amounts of exfoliated material and are inefficient (’393 Patent, col. 2:15-38).
The Patented Solution: The invention is a "graphene precursor"—a specially treated graphite-based carbon material from which graphene can be easily exfoliated. The key innovation is a material composition having a high proportion of rhombohedral graphite layers (3R) relative to hexagonal graphite layers (2H). The patent teaches that when this proportion, defined as "Rate (3R)," is 31% or more, the material is more susceptible to exfoliation into high-quality graphene flakes (’393 Patent, col. 3:1-12, col. 4:39-50).
Technical Importance: This approach provides a quantifiable metric (Rate (3R)) for a starting material, suggesting a more reliable method for producing high-quality graphene dispersions at scale compared to conventional brute-force exfoliation techniques.

Key Claims at a Glance

The complaint asserts at least one claim without specifying which one (Compl. ¶18). Independent claim 1 is representative.
Independent Claim 1 of the '393 Patent requires:
- A graphite-based carbon material useful as a graphene precursor
- having a rhombohedral graphite layer (3R) and a hexagonal graphite layer (2H)
- wherein a Rate (3R) based on an X-ray diffraction method, defined by the equation Rate(3R)=P3/(P3+P4)×100, is 31% or more.
The complaint reserves the right to assert additional claims (Compl. ¶29).

U.S. Patent No. 9,587,134 - “Graphene Composite and Method of Producing the Same”

The Invention Explained

Problem Addressed: The patent identifies a need to improve the physical properties (e.g., strength, elastic modulus) of base materials such as resins, and notes the challenge of uniformly dispersing reinforcing materials like graphene to achieve this improvement (’134 Patent, col. 1:21-44).
The Patented Solution: The invention is a composite material created by dispersing the specific graphite-based carbon material with a Rate (3R) of 31% or more (as described in the '393 Patent) into a base material. The patent asserts that this specific precursor material, when exfoliated within a composite, leads to a superior graphene composite with improved physical properties (’134 Patent, col. 4:3-16).
Technical Importance: The invention provides a method for creating enhanced materials (e.g., stronger plastics) by incorporating a specific, high-quality graphene precursor as a reinforcing agent.

Key Claims at a Glance

The complaint asserts at least one claim of each patent-in-suit (Compl. ¶ b, Prayer for Relief). Independent claim 1 is representative.
Independent Claim 1 of the '134 Patent requires:
- A graphene composite comprising at least a graphene that is partially exfoliated from a graphite-based carbon material and dispersed in a base material
- wherein the graphite-based carbon material has a rhombohedral graphite layer (3R) and a hexagonal graphite layer (2H)
- wherein a Rate (3R) of the rhombohedral graphite layer is 31% or more.
The complaint reserves the right to assert additional claims (Compl. ¶29).

U.S. Patent No. 9,598,593 - “Graphene Composite and Method of Producing the Same”

Technology Synopsis: This patent, related to the ’134 Patent, claims a graphene composite comprising graphene exfoliated from a precursor material with a Rate (3R) of 31% or more, dispersed in a base material. It also claims methods of producing such a composite by kneading the precursor into the base material to cause exfoliation (’593 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; independent claims are 1 and 7.
Accused Features: The complaint alleges that Defendants' GrapheneBlack0X and GrapheneBlack 3X powders, which allegedly have a Rate (3R) over 31%, are used to create infringing composites (Compl. ¶20, ¶25).

U.S. Patent No. 9,552,900 - “Composite Conductive Material, Power Storage Device...”

Technology Synopsis: This patent claims a composite conductive material made by dispersing the high Rate (3R) graphene precursor with another conductive material (e.g., carbon black) into a base material. The invention aims to improve electrical conductivity for applications like power storage devices (’900 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; the independent claim is 1.
Accused Features: The complaint alleges Defendants' powders are used to create infringing conductive materials (Compl. ¶20, ¶25).

U.S. Patent No. 9,815,987 - “Composite Conductive Material, Power Storage Device...”

Technology Synopsis: Related to the '900 Patent, this patent claims composite conductive materials, power storage devices, and conductive dispersions that incorporate the graphene precursor with a Rate (3R) of 31% or more. The invention is directed at creating materials with improved electrical and thermal conductivity (’987 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; independent claims are 1, 10, 11, 12, 13, and 14.
Accused Features: The complaint alleges Defendants' powders are used to create infringing conductive materials (Compl. ¶20, ¶25).

U.S. Patent No. 9,862,833 - “Composite Reinforcing Material and Molding Material”

Technology Synopsis: This patent claims a method of producing a composite reinforcing material by kneading the high Rate (3R) graphene precursor and a reinforcing material (e.g., glass fibers) into a polymer base. The invention aims to improve mechanical strength properties like tensile strength (’833 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; independent claims are 1 and 7.
Accused Features: The complaint alleges Defendants' powders are used in methods to create infringing reinforced materials (Compl. ¶20, ¶25).

U.S. Patent No. 9,862,834 - “Composite Reinforcing Material and Molding Material”

Technology Synopsis: Related to the '833 Patent, this patent also claims methods of producing composite reinforcing materials by kneading the precursor material (with a Rate (3R) of 31% or more) into a base material. It further claims the resulting molding material (’834 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; the independent claim is 1.
Accused Features: The complaint alleges Defendants' powders are used in methods to create infringing materials (Compl. ¶20, ¶25).

U.S. Patent No. 10,421,863 - “Composite Reinforcing Material and Molding Material”

Technology Synopsis: This patent claims a composite reinforcing material where graphene is exfoliated from the high Rate (3R) precursor and dispersed in an inorganic or metallic base material. The goal is to reinforce materials like cement or metal alloys (’863 Patent, Abstract, Claim 1).
Asserted Claims: The complaint does not specify claims; independent claims are 1 and 6.
Accused Features: The complaint alleges Defendants' powders are used to create infringing reinforced materials (Compl. ¶20, ¶25).

U.S. Patent No. 9,404,058 - “Method for Producing a Composite Lubricating Material”

Technology Synopsis: This patent claims a method for producing a composite lubricating material by kneading the graphite precursor with a Rate (3R) of 31% or more into a base material like oil or grease. The invention aims to improve lubricity and reduce friction (’058 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; the independent claim is 1.
Accused Features: The complaint alleges Defendants' powders are used in methods to create infringing lubricating materials (Compl. ¶20, ¶25).

U.S. Patent No. 9,752,035 - “Composite Lubricating Material, Engine Oil, Grease, and Lubricant...”

Technology Synopsis: Related to the '058 Patent, this patent claims the composite lubricating material itself, comprising the high Rate (3R) precursor dispersed in a base oil. It also claims the resulting engine oil and grease products (’035 Patent, Abstract).
Asserted Claims: The complaint does not specify claims; independent claims are 1, 6, and 7.
Accused Features: The complaint alleges Defendants' powders are used to create infringing lubricating materials (Compl. ¶20, ¶25).

III. The Accused Instrumentality

Product Identification

NanoXplore’s GrapheneBlack0X and GrapheneBlack 3X products (Compl. ¶20).

Functionality and Market Context

The complaint describes the accused products as "industrial graphene powders which are made from natural flake graphite" (Compl. ¶20). They are allegedly "designed specifically for advance industrial applications, including plastics, composites, and battery materials" (Compl. ¶20). The central technical feature alleged is that the powders contain both rhombohedral (3R) and hexagonal (2H) graphite layers, and that the rate of the 3R layers exceeds 31% when measured by X-ray diffraction (Compl. ¶25). No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references an "Exemplary Claim Chart for the ‘393 (Exhibit K)" that was not provided with the complaint document (Compl. ¶27). The following summary is based on the narrative allegations in the complaint body.

U.S. Patent No. 9,428,393 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A graphite-based carbon material useful as a graphene precursor	The accused products are alleged to be graphite-based carbon materials derived from natural flake graphite.	¶25	col. 4:39-41
having a rhombohedral graphite layer (3R) and a hexagonal graphite layer (2H),	The complaint alleges the accused products have both rhombohedral graphite layers (3R) and hexagonal graphite layers (2H).	¶25	col. 4:41-43
wherein a Rate (3R) of the rhombohedral graphite layer (3R) and the hexagonal graphite layer (2H), based on an X-ray diffraction method...is 31% or more	The complaint alleges the accused products have a rate of 3R, determined by X-ray diffraction, exceeding 31%.	¶25	col. 4:43-50

U.S. Patent No. 9,587,134 Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A graphene composite comprising at least a graphene is partially exfoliated from a graphite-based carbon material and dispersed in a base material,	The complaint does not allege that Defendants make, use, or sell a composite product that includes a base material.	¶20, ¶24	col. 4:3-6
the graphite-based carbon material having a rhombohedral graphite layer (3R) and a hexagonal graphite layer (2H), wherein a Rate (3R)...is 31% or more	The complaint alleges that Defendants' powders, which are the precursor material, meet this limitation.	¶25	col. 4:7-14

Identified Points of Contention

Factual/Evidentiary Question: A primary point of dispute for the ’393 Patent will be factual: do the accused GrapheneBlack0X and GrapheneBlack 3X powders actually have a "Rate (3R)" of 31% or more? The outcome will depend on expert testing and analysis of the measurement methodology. The complaint’s reference to a "Rigaku GG Index" (Compl. ¶25) raises the question of whether this test method is identical to the one required to assess the claim limitation.
Claim Scope Question: A significant legal question arises for the ’134 Patent and other composite-focused patents. The claims require a "composite" where the precursor is "dispersed in a base material," but the accused products are powders sold without a base material. This raises the question of whether the sale of a key component (the powder) can constitute direct infringement of a claim to a finished composite, or if infringement liability, if any, would arise only under theories of indirect infringement.

V. Key Claim Terms for Construction

The Term: "Rate (3R) ... is 31% or more"

Context and Importance: This quantitative limitation is the technical core of all asserted patents. The entire infringement case appears to turn on whether the accused products meet this specific numerical threshold, making its definition and method of measurement paramount.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The term is explicitly defined by an equation: Rate(3R)=P3/(P3+P4)×100, where P3 and P4 are peak intensities from an X-ray diffraction method (’393 Patent, col. 4:43-50). Parties favoring a broader interpretation may argue that any standard X-ray diffraction method that determines these peak intensities is sufficient.
- Evidence for a Narrower Interpretation: The specification of related patents in the family provides specific measurement conditions for the X-ray diffraction apparatus, including the source, scanning speed, tube voltage, and current (e.g., ’863 Patent, col. 10:1-11). A party could argue these specific conditions are necessary to properly measure the "Rate (3R)" and that any deviation (such as Plaintiff's alleged "Rigaku GG Index" test) is improper for claim construction and infringement analysis.

The Term: "graphene composite" / "dispersed in a base material"

Context and Importance: This term is central to the scope of the ’134 patent and others claiming a final mixture. Its construction will determine whether selling the precursor powder alone can directly infringe claims directed to a composite. Practitioners may focus on this term because there is an apparent mismatch between the accused product (a powder) and the claimed invention (a mixture).
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The complaint does not provide a basis for a broad interpretation. A party might argue that selling a "kit" containing the powder with instructions for use could be considered a composite, but the complaint does not make this allegation.
- Evidence for a Narrower Interpretation: The specification of the ’134 patent describes the composite as being produced by "kneading at least a graphite-based carbon material...into a base material" (’134 Patent, col. 3:41-44). This language suggests that the claimed "composite" is the resulting mixture, not just one of its constituent components, supporting a narrower interpretation that would not read on the powder alone.

VI. Other Allegations

Indirect Infringement

The complaint alleges both induced and contributory infringement (Compl. ¶¶30-38). Inducement is based on allegations that Defendants continued to offer the accused products for sale after receiving notice of infringement via Plaintiff's emails of January 1, 2024, and March 19, 2025, the latter of which included a claim chart (Compl. ¶31). Contributory infringement is based on the allegation that the accused powders are a material part of the claimed inventions and have no substantial non-infringing uses (Compl. ¶34, ¶35).

Willful Infringement

The complaint alleges willful infringement based on Defendants' alleged actual knowledge of the patents-in-suit as of at least January 1, 2024 (Compl. ¶39). The claim is supported by the allegation that Defendants continued to infringe notwithstanding this knowledge (Compl. ¶40).

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

A core issue will be one of measurement and evidence: Can Plaintiff prove, through expert testing consistent with the patent's teachings, that Defendants' GrapheneBlack0X and 3X powders possess a "Rate (3R)" of 31% or more? The case may devolve into a technical dispute over the correct methodology for X-ray diffraction analysis.
A second key issue will be one of claim scope: For the numerous patents claiming a "composite" material, can selling a precursor powder constitute direct infringement? The court's construction of terms like "graphene composite" and "dispersed in a base material" will be dispositive for the direct infringement claims on these patents, potentially shifting the focus to Plaintiff's secondary theories of indirect infringement.
A final question will be one of intent: Given the complaint's detailed account of pre-suit communications, including the provision of a claim chart, a central issue will be whether Defendants' alleged continued sales after notice rise to the level of willfulness, which could expose them to enhanced damages if found liable for infringement.