On the Present and Future of Green Patent Litigation

On the Present and Future of Green Patent Litigation

 Law360 recently published an article assessing the state of renewable energy patent litigation.  Entitled “Clean Energy Patent Boom Sets Stage For IP Wars,” [subscription required] the gist of the piece is that there has been little patent litigation in the renewable energy industry so far, but the substantial growth in patents on renewable technologies in the last decade will soon change that.

Some patent litigators attribute the dearth of renewables litigation to the supposedly early stage of the industry where players are “staking out their territory” in an as-yet uncrowded market.  At this point, they say, patent litigation is premature as the early entrants don’t know how valuable their technologies will be.

The article notes the exceptions of the wind and solar markets, which are more mature, citing one lawsuit in the major patent battle between Mitsubishi and GE (see, e.g., here) and and the Zep – Westinghouse Solar litigation over solar mounting systems patents.

However, the attorneys interviewed for the piece said biofuels and energy storage patent litigation would be “further off,” overlooking two significant and sprawling patent battles in biofuels (Gevo-Butamax, and GS Cleantech) and at least one major advanced battery suit (A123-HydroQuebec).

Since the lawsuit started in January 2011 the ongoing patent litigation between advanced biofuels company Gevo and BP-DuPont joint venture Butamax has grown to encompass at least 17 suits and 14 patents relating to methods of producing biobutanol.

In another major case involving corn ethanol production technology, GreenShift and its New York subsidiary, GS Cleantech, brought a series of patent infringement suits against a host of ethanol producers across the midwestern United States.  The cases were consolidated in federal court in the Southern District of Indiana.

There has been significant advanced battery patent litigation over the last several years, most notably the cases involving A123 Systems Inc. (A123), a Boston area lithium ion battery maker, Canadian utility Hydro-Quebec (H-Q), the exclusive licensee of several patents relating to cathode materials, and the Board of Regents of the University of Texas (UT), the owner of the patents.  There was also a recent lawsuit brought by Celgard against Sumitomo involving separators for advanced batteries.

I think the article’s exclusive focus on renewable energy technologies misses the bigger picture that the broader clean tech industry has seen a number of large and important green patent battles, including Paice v. Toyota over hybrid-electric vehicle patents and Nichia v. Seoul involving LED design patents.

Generally, though, the article is right that given the sustained surge in patenting green technologies over the past decade or so, in green patent litigation the best is yet to come.

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