Before we turn to new green IP issues as they unfold in 2014, here is a look back at some of the top stories from 2013.
No. 7: Green Patent PR
Clean tech is competitive, and PR is one of the tools used to stand out in a competitive industry. But who would have thought PR around green patents could be so prevalent and contentious? After DuPont sued Heraeus for alleged infringement of a patent directed to solar paste, the chemical giant put out a press release about filing the suit and the problem of IP theft in clean tech.
Heraeus counterclaimed for unfair competition and later threatened a separate lawsuit over the press release. DuPont then filed a declaratory judgment action asking an Oregon federal court to declare that the company’s press release and customer letters about its patent infringement suit against Heraeus do not violate unfair competition laws.
My research indicates that clean tech companies engage in a substantial amount of PR around patent matters, with the clean tech industry generating the fifth highest number of patent-focused press releases. DuPont’s disputed press release notwithstanding, the vast majority of clean tech industry press releases relate to patent prosecution.
No. 6: Boston University Leads LED Lit
LED patent litigation continued to grow in 2013. Leading the way this past year was the Trustees of Boston University, which sued dozens of defendants including AU Optronics, BlackBerry Corporation, Dell, Fujifilm, HTC, Eastman Kodak, Olympus, Sharp, and Sony.
The patent in these suits is U.S. Patent No. 5,686,738, entitled “Highly insulated monocrystalline gallium nitride thin films” and directed to gallium nitride semiconductor devices and methods of preparing highly insulating GaN single crystal films in a molecular beam epitaxial growth chamber.
No. 5: Criminalizing Greenwashing 2.0
As discussed in this space, a new greenwashing paradigm has emerged where cases are brought by or on behalf of commercial consumers and involve B-to-B communications and misrepresentations (as opposed to advertising of consumer products directed to individual consumers).
In 2013 we began to see a new species of greenwashing 2.0 case: criminal actions brought by governmental authorities for environmental crimes and fraud (see, e.g., here and here).
In one case a Colorado company called Executive Recycling and some of its officers were sentenced to imprisonment and fines for falsely representing that the company would dispose of all electronic waste (mostly cathode ray tubes) in an environmentally friendly manner in the United States when it instead sold the electronic waste it received to brokers for export overseas to China and other countries.
In another, the feds prosecuted companies for allegedly generating and selling fraudulent Renewable Energy Credits (RINs), and Cargill separately brought a civil action involving similar allegations.
No. 4: Sinovel Faces Criminal Indictment in US
The AMSC- Sinovel copyright and trade secret dispute involving wind turbine control systems was big news in 2012, but legally speaking, mostly civil.
That changed in 2013 when the U.S. Department of Justice filed an indictment in federal court in Wisconsin alleging that Sinovel, two of its employees, and a former AMSC employee conspired to commit trade secret theft and criminal copyright infringement.
The indictment said the purpose of the alleged conspiracy was to illegally obtain proprietary source code, software, equipment designs and technical drawings relating to AMSC’s wind turbine control systems., thereby cheating AMSC out of more than $800,000,000.
No. 3: Greenwashing Costs LED Maker $21 Million
In an indication of how seriously the American justice system may now be taking greenwashing, a Los Angeles federal court enjoined LED maker Lights of America (LOA) and ordered the company to pay $21,165,863.47.
This followed a decision holding that LOA violated Section 5 of the FTC Act by making false claims about LED lamps replacing certain wattage incandescent lamps and about the lifetime of the company’s LED lamps.
The case was brought by the FTC, America’s competition and consumer watchdog agency. The FTC was to receive the $21 million, and the court directed the FTC to deposit the money into a redress fund to be used for consumer redress.
No 2: Burgeoning Biofuels Battles
While The Gevo-Butamax litigation was a major story of 2012, notable both for its size and as the first foray of big oil into biofuels patent suits, biofuels patent litigation in general makes the 2013 list.
Not only did Gevo and Butamax continue their “patent war over who can make biobutanol,” with big decisions starting to come down, but Danish enzyme maker Novozymes also was active in the courts, Danisco scored a big summary judgment win against Novozymes, GreenShift expanded its ethanol production patent enforcement campaign, and Neste’s biodiesel patent suits changed direction with the court staying the suits pending reexamination of the asserted patents.
No. 1: Solar Patent Surge
Since the start of green patent history (admittedly a very brief era in the cosmic scheme of things), as recorded by the Clean Energy Patent Growth Index (CEPGI), fuel cells dominated other technologies and perennially led the green patent rankings.
That changed in 2013. In its first-quarter report the CEPGI noted that the 217 solar patents granted were just one behind fuel cells’ 218, “the smallest differential on record [suggesting] that Solar patents are poised to pass Fuel Cell patents.”
As predicted, the Q2 report showed solar patents beating out fuel cell patents for the first time, surging ahead with 246 solar patents granted in the second quarter, with fuel cell patents in second place at 209.
According to CEPGI, “Solar patents’ quarterly win makes clear that innovation in this sector continues at a rapid pace despite the failures and consolidations of solar firms across that board that dominate cleantech media reports.”
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