Green Patent Blog is on vacation.
In a number of prior posts (e.g., here, here and here), I discussed the series of patent infringement suits brought by GreenShift and its New York subsidiary, GS Cleantech (GS), against a host of ethanol producers across the midwestern United States.
The lawsuits involve GS’s patented ethanol production processes, described and claimed in a host of patents, principally the ’858 Patent Family consisting of U.S. Patent Nos. 7,601,858, 8,008,516 and 8,283,484, each entitled “Method of processing ethanol byproducts and related subsystems,” and U.S. Patent No. 8,008,517, entitled “Method of recovering oil from thin stillage.”
The patents relate to methods of recovering oil from byproducts of ethanol production using the process of dry milling, which creates a waste stream comprised of byproducts called whole stillage.
GS has been on an aggressive patent enforcement campaign over the last several years, and multiple actions were consolidated in the Southern District of Indiana, where the ’858 Patent Family was construed and re-construed.
In a sweeping 233-page decision issued in October and made public last month, the court ruled on all of the pending motions for summary judgment brought by the original parties to the suit.
On plaintiff’s side, the motions brought by GS were for summary judgment of infringement of at least some claims of each patent in the ’858 Patent Family by each of fourteen different defendants.
On the other side, the defendants of course moved for summary judgment of non-infringement of the ’858 Patent Family. The defendants also filed motions for summary judgment of invalidity of the ’858 Patent Family (with GS cross-moving for summary judgment that the patents are valid).
Finally, GS alleged a subset of six defendants infringe U.S. Patent 8,168,037, entitled “Method and systems for enhancing oil recovery from ethanol production byproducts” (’037 Patent). The ’037 Patent was also the subject of competing motions by both sides for summary judgment of infringement and non-infringement and/or invalidity.
The court made several rulings on infringement, all for defendants. Here are a couple of highlights:
The court found the defendants entitled to summary judgment of non-infringement of a number of claims of the ’858 Patent Family because the claims require drying the concentrate, which the court construed to mean drying the reduced oil syrup leaving the oil recovery process without mixing it with anything else first. The defendants’s processes mix the reduced oil thin stillage concentrate before drying the mixture.
A number of defendants’ motions for summary judgment of non-infringement of several claims of the ’516 Patent and ’484 Patent were granted because the claims require that the reduced-oil syrup be “substantially free of oil” and defendants do not remove most of the oil from the incoming stream.
But the big news is the court held three of the four patents (’858, ’516 and ’517) in the ’858 Patent Family invalid because GS made a commercial offer to sell the technology more than a year before the August 17, 2004 filing date of the initial provisional patent application that led to the other applications in the family.
Under the patent law provisions in effect at that time, a sale of the invention or offer to sell the invention more than one year before filing a patent application directed to the invention invalidates a patent issuing on that application, so long as the invention was reduced to practice at the time of the offer.
The offer was in the form of a July 31, 2003 letter to a prospective customer which the court found was “the culmination of a commercial offer for sale”:
[T]he major elements of a contract for the sale of a system that could perform the the patented method are contained in the letter: all items necessary to recover oil and the price.
All four patents of the ’858 Patent Family were also held invalid as obvious over a prior Prevost patent in view of the common practice of the ethanol industry at the time:
Prevost discloses centrifugation of concentrated thin stillage to recover oil. The only elements of the ’858 patent family missing from Prevost’s explicit teachings are specific pH, moisture content and temperature range requirements that are indisputably encompassed by the standard operating conditions of a dry mill ethanol plant and the heating element recited in some of the claims.
If that weren’t enough, the court held the later-filed ’037 Patent invalid as obvious in view of the ’858 Patent and other prior art references.
At the end of the day, all of GS’s motions for summary judgment of infringement were denied, nearly all of its motions for summary judgment of validity of its patents were denied, none of the defendants was found to infringe GS’s patents, and the ’858 Patent Family was found to be invalid on multiple grounds.
The Clean Energy Patent Growth Index (CEPGI) recently released its Second Quarter 2014 Results. Researched and published by the Heslin Rothenberg law firm, CEPGI is a quarterly report on clean energy patents issued in the United States.
The big news is that the 940 green patents granted in the second quarter of 2014 is the highest total for any quarter since CEPGI began tracking green patent trends in 2002. This is a jump of 250 from the first quarter and 200 more than Q2 last year.
The largest number of green patents was in solar technology, with 306 solar patents, up 55 from the first quarter. This is an all-time high for solar patent grants and is part of a recent and sustained dominance, according to the report:
Solar patents were at a new high and again led the other technology sectors in the second quarter for the fifth quarter in a row…
Fuel cell patents were in second place at 232, a jump of 70 patents over the first quarter. Wind patents were up 43 to 166, to take third place, while hybrid/electric vehicle patents were in fourth place with 142. Next was biofuel/biomass patents, which reached a new high of 71, tidal patents (16), and geothermal patents (5).
The top green patentee for the second quarter of 2014 was Toyota, which had 33 patents granted, divided between fuel cells and hybrid/electric vehicles. Toyota took the crown from the leader of the prior quarter, General Motors, which was in second place with 30 granted green patents, most of which were fuel cell patents.
Vestas and Samsung tied for third place, each with 26 patents. All 26 Vestas patents were, unsurprisingly, in wind technology, and Samsung had 14 fuel cell patents, 11 solar patents, and one biofuel/biomass patent. Honda, Hyundai, and Ford took the next three spots, followed by GE, Mitsubishi, and Panasonic.
CEPGI also breaks out its data by jurisdiction, looking at the countries and individual U.S. states of green patentees. Japan was the Q2 leader with 183 green patents granted. California took second place with 98 patents, followed by Germany with 92, and Korea with 90. Michigan (56), Taiwan (38), New York (31), Denmark (30), France (24), and Texas (24) rounded out the top ten.
A previous post discussed a host of class action lawsuits against Kia and/or Hyundai accusing the Korean automakers of making false or misleading fuel efficiency claims in their advertising and marketing materials.
Those suits allege that the automakers built advertising campaigns around representations that a number of their vehicles achieved gas mileage in the 40 mile per gallon range when the companies knew or should have known the actual mileage was significantly lower. One major problem, it seemed, was flawed fuel economy testing by the car makers.
A recent lawsuit brought by the Environment and Natural Resources Division of the U.S. Department of Justice (DOJ) and the California Air Resources Board (CARB) provides more revelations about the automakers’ faulty testing (and led to a prompt settlement by Hyundai and Kia including a substantial monetary penalty).
Filed November 3, 2014 in federal court in Washington, DC, the complaint alleges that Hyundai and Kia sold over a million vehicles that did not meet the requirements of the Clean Air Act because the automakers used improper testing procedures and analysis and submitted faulty fuel economy data to the U.S. Environmental Protection Agency (EPA).
The subject vehicles include the 2012 and 2013 Hyundai Accent, Elantra, Veloster and Santa Fe and 2012 and 2013 Kia Rio and Soul.
Under the Clean Air Act, any new motor vehicle sold in the United States must be covered by a Certificate of Conformity issued by the EPA. To obtain a Certificate of Conformity, a manufacturer must submit an application for motor vehicles it intends to sell in the United States.
One of the metrics a manufacturer must test and include in the application is a vehicle’s road load force, a measure of the internal and external forces that cause a vehicle to lose speed, such as driveline friction and wind resistance. The road load force can be calculated by performing a “coastdown” test on the vehicle.
A vehicle’s fuel economy depends, in part, on its road load force. The complaint explains the relationship between road load force and greenhouse gas emissions as follows:
A vehicle with a low road load force has relatively higher fuel economy and emits lower amounts of greenhouse gases because the vehicle efficiently maintains its momentum. Conversely, a vehicle with a higher road load force has lower fuel economy and emits more greenhouse gases because it needs to burn more fuel to counteract that road load force and maintain speed.
According to the complaint, Hyundai and Kia, which worked together on testing of the subject vehicles for the Certificate of Conformity applications, used improper testing procedures and analysis, including cherry-picking results, leading to inaccurately low reported road load forces:
Defendants improperly selected results from test runs that were aided by a tailwind rather than correctly using the results of test runs in both directions, Defendants selected favorable results from test runs rather than average the results from the larger set of tests, Defendants restricted their testing times to periods when the temperature allowed vehicles to coast farther and faster, and Defendants specially prepared vehicle tires for optimized test results.
As a result, the EPA’s investigation and audit testing determined that the actual road load forces for the tested vehicles were about 14-54% higher than the automakers provided in their applications for Certificates of Conformity.
Hyundai and Kia quickly settled with the DOJ and CARB. Under the settlement, the automakers did not have to admit the truth of the allegations but will have to pay about $100 million, about $93.6 million to the DOJ and about $6.4 million to the CARB. This is the largest penalty ever imposed under the Clean Air Act.
The car companies will also forfeit 4.75 million greenhouse emission credits – earned for building vehicle emissions under the legal limit – which they had previously claimed and are estimated to be worth over $200 million.
Sometimes it’s better – for the environment and for the bottom line – to conform.
Several new green patent lawsuits were filed in the last couple of months in the areas of LEDs, smart grid technologies, concentrated solar power, solar inverters, green dry cleaning solvents, and water treatment.
Cree, Inc. v. Harvatek Corporation et al.
North Carolina LED maker Cree filed a couple of patent infringement suits in September and October. In the first, Cree sued Harvatek for alleged infringement of six patents relating to white light LED technology. The complaint was filed September 15, 2014 in the U.S. District Court for the Western District of Wisconsin.
Three of the asserted patents are of a first patent family and share the same title. Another two are part of a second family and share a title. The patents-in-suit are as follows:
U.S. Patent No. 6,600,175, entitled “Solid state white light emitter and display using same”
U.S. Patent No. 7,943,945, entitled “Solid state white light emitter and display using same”
U.S. Patent No. 8,659,034, entitled “Solid state white light emitter and display using same” (’034 Patent)
U.S. Patent No. 7,910,938, entitled “Encapsulant profile for light emitting diodes” (’938 Patent)
U.S. Patent No. 8,766,298, entitled “Encapsulant profile for light emitting diodes” (’298 Patent)
U.S. Patent No. 8,362,605, entitled “Apparatus and method for use in mounting electronic elements”
The complaint alleges that a number of Harvatek’s white LED products infringe the patents.
Cree, Inc. v. Honeywell International Inc.
The second suit accuses Honeywell of infringing the ’034, ’938, and ’298 Patents as well as U.S. Patent No. 8,860,058, entitled “Solid state white light emitter and display using same.”
Filed in the Western District of Wisconsin on October 28, 2014, the complaint alleges that Honeywell’s Automation and Control Systems and Aerospace business units are selling infringing products using Cree’s patent white LED technology for backlighting.
The accused products include liquid crystal display devices in Honeywell’s Aviation Lighting and Cockpit Displays, Environment & Combustion Controls, Scanning and Mobility devices, and Measurement and Control Systems as well as certain programmable thermostat products.
Endeavor MeshTech, Inc. v. EnergyHub, Inc.
On October 14, 2014, Endeavor MeshTech (a wholly-owned subsidiary of patent monetization firm Endeavor IP) filed a patent infringement complaint against Brooklyn-based EnergyHub in the U.S. District Court for the Southern District of New York.
The complaint (Endeavor complaint part_1; Endeavor complaint part_2) accuses EnergyHub of infringing three patents in a family – U.S. Patent Nos. 7,379,981, 8,700,749, and 8,855,019, each entitled “Wireless communication enabled meter and network.” The patents-in-suit relate to a self-configuring wireless network including a number vnodes and VGATES.
According to the complaint, EnergyHub’s self-configuring wireless network marketed and sold under the name of its Mercury platform infringe the patents.
Concentrated Solar Power
Schott Solar CSP GmbH v. SkyFuel, Inc. et al.
Schott filed suit against SkyFuel and Weihai Golden Solar October 23, 2014 in the U.S. District Court for the District of Colorado. The complaint alleges infringement of U.S. Patent No. 7,013,887 (’887 Patent) relating to solar absorption receivers used in certain concentrated solar power (CSP) applications.
Entitled “Absorber pipe for solar heating applications,” the ’887 Patent is directed to an absorber pipe having a central metal pipe, a sleeve tube, folding bellows, and an expansion compensation device that connects the metal pipe and sleeve tube so that they can slide relative to each other.
According to the complaint, the defendants sell infringing receivers and/or build and install CSP plants incorporating infringing receivers.
Enphase Energy, Inc. v. SolarBridge Technologies, Inc.
Inverter maker Enphase Energy sued SolarBridge, alleging infringement of three patents relating to solar inverter technology. The complaint was filed October 10, 2014 in the U.S. District Court for the Northern District of California.
The asserted patents are U.S. Patent Nos. 7,768,155 and 8,035,257, both entitled “Method and apparatus for improved burst mode during power conversion” and U.S. Patent No. 7,986,122, entitled “Method and apparatus for power conversion with maximum power point tracking and burst mode capability.”
The patents relate to systems and methods for converting DC power generated by solar panels to AC power for the electric grid and includes methodology for storing energy and drawing energy during burst periods and controlling burst modes to improve efficiency in low sunlight conditions.
The accused products are SolarBridge’s Pantheon microinverter and TrueAC module.
Green Dry Cleaning Solvents
GreenEarth Cleaning, L.L.C. v. Glyndon Laundry, Inc. d/b/a Glyndon Lord Baltimore Cleaners
Filed September 22, 2014 in U.S. District Court for the Western District of Missouri, GreenEarth’s complaint accuses Glyndon of, among other things, patent and trademark infringement.
GreenEarth alleges that Glyndon is infringing its “base” patent – U.S. Patent No. 5,942,007 (’007 Patent) – as well as nine other patents which are “variations” of the ’007 Patent. The ’007 Patent is entitled “Dry cleaning method and solvent” and directed to methods of dry cleaning clothes using a cleaning fluid including a cyclic siloxane composition.
GreenEarth also accuses Glyndon of infringing its trademarks including its leaf and water droplet logo:
According to the complaint, GreenEarth licensed its trademarks and patented processes to Glyndon, but Glyndon stopped paying the requisite fees after August 2013 and continued to use the licensed intellectual property.
Deerpoint Group, Inc. v. Acqua Concepts, Inc. (DBA Ag Water Chemical of California)
Deerpoint, a provider of water treatment solutions for the agriculture industry, sued Acqua and two former Deerpoint employees in federal court in Fresno, California.
Filed September 25, 2014, the complaint accuses Acqua of infringing U.S. Patent Nos. 6,238,573 (’573 Patent) and 7,638,064 (’064 Patent) and alleges that its former employees misappropriated trade secrets including confidential products and services, client lists, and pricing information.
The ’573 Patent is entitled “Water treatment” and directed to a process for producing chlorine for water treatment including blending calcium hypochlorite and water to form a saturated solution of calcium hypochlorite and a sink of calcium hypochlorite and feeding chlorinated water to a water supply.
The ’064 Patent is verbosely titled “Continuously feeding chlorine to the irrigation system, monitoring an outer field point to determine whether at least a detectable level of residual chlorine is seen at that point, whereby chlorination disinfection system-wide is achieved.”
One of the major green patent lawsuits I’ve been following in this space – GE Lighting v. Agilight – has settled. GE announced the settlement in a recent press release.
The suit involved four GE LED patents, some relating to use of LED modules for signage applications: U.S. Patent Nos. 7,160,140 (’140 Patent) and 7,832,896 (’896 Patent), entitled “LED String Light Engine,” U.S. Patent No. 7,520,771 entitled “LED String Light Engine and Devices that are Illuminated by the String Light Engine” (’771 Patent), and U.S. Patent No. 7,633,055 entitled “Sealed Light Emitting Diode Assemblies Including Annular Gaskets and Method of Making Same” (’055 Patent).
GE filed the suit against AgiLight back in February 2012 in the U.S. District Court for the Northern District of Ohio. After the district court issued a claim construction ruling favorable to AgiLight, GE joined in a stipulation that two of the ’140 and ’771 Patents were not infringed to expedite appeal of the claim construction decision.
Shortly thereafter, the district court granted AgiLight’s motion for summary judgment on the remaining claims of the ’055 Patent) and the ’896 Patent.
The terms of the settlement are confidential, but according to the press release the litigation was resolved “to the parties’ mutual satisfaction.”
If the terms included AgiLight taking a license to the patents, it was non-exclusive: GE Lighting’s General Manager – Global Product Management Jerry Duffy said the company is “offering non-exclusive licenses under these patents to interested parties.”
A recent article in the the New York Law Journal caught my attention for an interesting development in examination of eco-mark applications in the U.S. Patent and Trademark Office (USPTO). We’ve known for some time that marks containing terms such as “green,” “clean,” “eco-” or “enviro-” are very likely to be rejected as merely descriptive of environmentally friendly products or services.
In “Changing Climate for ‘Green’ Trademarks,” Robert Scheinfeld of the Baker Botts firm notes that the USPTO has very recently begun to reject eco-marks on the basis of deceptiveness.
This is almost the opposite of a descriptiveness rejection: where a descriptive eco-mark immediately communicates to consumers the environmentally friendly nature of the goods or services, a deceptive eco-mark is one that signals environmentally friendly characteristics while the goods or services do not actually confer an environmental benefit.
The piece cites a 2013 decision by the USPTO Trademark Trial and Appeal Board (Board) as a case in point. In re Kitaru Innovations Inc. involved an application to register the mark GREEN SEAL (shown above) for adhesive tape and tape dispensers.
The USPTO examining attorney refused registration on the ground that the mark was deceptively misdescriptive under Section 2(e)(1) of the Lanham Act and comprises deceptive matter under Section 2(a) in that it falsely and materially indicates that the applicant’s goods are environmentally friendly when, in fact, they are not. The Board affirmed the refusal.
For deceptive misdescriptiveness under Section 2(e)(1), the Board’s starting point, by now a very familiar one, was that the word “‘green’ directly conveys information to potential consumers that the tape products are environmentally friendly.”
To be misdescriptive, a mark must be merely descriptive of a significant aspect of the goods which they could plausibly possess but in fact do not. The Board concluded that the GREEN SEAL mark could be merely descriptive if the products were, indeed, green:
The two word composite term, “Green Seal,” would be merely descriptive if applicant’s goods were made of eco-friendly materials. Green would convey information about the environmental claims that the tape possessed, and a most important feature of adhesive tape or adhesive packaging tape is that it “seals,” or “tightly or completely closes or secures a thing.”
Interestingly, but immaterial to the Board’s decision, the applicant made no claim that its products are eco-friendly. Rather, the “Green Seal” mark is just one in a line of color-coded adhesive tape products that also includes “Black Seal,” “Blue Seal” and “Double Blue Seal.”
Nevertheless, the Board concluded that many of the affected consumers would be likely to believe that the term “Green” in the GREEN SEAL mark describes the adhesive tapes as being environmentally friendly. The Board noted evidence of record showing that adhesive tape products in particular are increasingly the subject of environmentally friendly claims, and consumers would expect the applicant’s tape to be eco-friendly:
As seen above in the pages of blogs and advertisements from the Internet, an increasingly common feature of adhesive and packaging tape is that it is ecologically sound. Sometimes the focus is on how the tape deteriorates over time, and others times it has to do with the use of recycled materials. The term “Green” is frequently used to capture this idea. Accordingly, consumers encountering applicant’s mark with the term “Green” will likely understand the term in context to refer to the fact that this tape is an environmentally-friendly product.
To be deceptive matter under Section 2(a), the misdescription must be likely to affect the relevant consumers’ decision to purchase the products. Here, the Board noted the “urgency” for consumers to recycle and purchase products made of recycled or biodegradable materials. The evidence of record showed that there is a segment of purchasers that would be more inclined to buy eco-friendly adhesive tape products.
Accordingly, the Board concluded that the perceived green quality of the tape products would be likely to affect the purchasing decisions of relevant consumers:
The level of excitement on the part of consumers reflected above over the availability of environmentally friendly / green tape products demonstrates that this characteristic would be material to the decision of consumers to purchase applicant’s goods. Accordingly, we find on this record that such a misdescription is likely to affect the decision to purchase the goods, and the third and final prong of the Section 2(a) deceptiveness test has also been satisfied.
This is the first decision I’ve seen where an eco-mark was refused registration by the USPTO for being deceptively misdescriptive and/or deceptive matter. It’s unclear whether or not this is actually a trend. I plan to conduct some research on this topic and discuss my findings in this space.
What is clear, though, is that the USPTO has made an initial foray into the subject of greenwashing and has at least begun to use deceptive misdescriptiveness and deceptive matter as tools for combating the problem.
Indow Windows (Indow) is a Portland, Oregon, company that has developed energy efficient window inserts.
Indow owns at least one U.S. Patent and a pending patent application covering its storm window technology. U.S. Patent No. 8,272,178 (’178 Patent) is entitled “Press-fit storm window” and directed to a storm window assembly comprising a transparent panel and tubes or gaskets for insertion into a window frame.
The tube (102) has a hollow interior and a channel groove that connects it to the panel (130). The tube allows a pressure fit (350, 352, 354) into a window frame.
FIGS. 6(A)-6(C) show a molded tube corner piece which includes parallel plates (605, 615) with a gap (617). Notch (643) facilitates better coverage and flexibility while find (641) provides improved adhesion and insulation.
FIG. 5 shows the corner piece being inserted into a window frame.
U.S. Patent Application Publication No. 2014/0174006 is a related application (continuation-in-part of a continuation-in-part) owned by Indow, which adds some new material to the original disclosure of the ’178 Patent.
According to the ’178 Patent, the invention is intended to supplement, rather than replace, existing windows:
The windows are not designed to replace existing windows, but rather to supplement them by creating a tight seal between the interior space or exterior space and the existing window.
The invention accomplishes this by creating outward pressure around the edge of the panel:
In one embodiment of the inventive press-fit storm window, a transparent panel of acrylic glass, such as PLEXIGLAS, glass, or other clear rigid material is held in place by the spring action created by a continuous (or partial, conceivably) round gasket (or other spring-like gasket), that creates outward pressure around the entire exterior edge of the clear panel (or the top, left, and right sides). The panel is held securely in place through a combination of this outward pressure and friction.
A press release emailed to me by the company notes that its compression tube requires no mounting hardware or track system. Significantly, the press release cites a U.S. Department of Energy study which found that installation of Indow Windows in a home in Seattle “led to a more than 20 percent reduction in heating, ventilating and air-conditioning use.”
The windows have gotten some recognition – according to the press release it has won a number of awards including the 2014 Top Product of the Year Award in the Environmental Leader Product & Project Awards.
Just a quick report on a recent addition to the clean tech start-up community and blogosphere. It’s called ECO founder, and the company hasn’t developed any exciting technology or new business model. It provides something much more fundamental.
ECO founder helps engineers with green tech innovations and other budding clean tech entrepreneurs learn the ropes of managing a start-up. Run by George Gray and based in Los Angeles, ECO founder teaches business and start-up skills via such programs as the 30-Day Challenge and Mr. Gray’s book, Engineer to Founder.
Of course, there is an ECO founder blog, with a variety of posts such as “Learn Key Business Skills Before You Leave Your Engineering Career,” “How to Build a Killer Elevator Pitch,” and “Go-to Market: Six Steps Cleantech Marketing.”
Why is Mr. Gray providing this services for green technicians? He hopes that ECO founder can help people who don’t have the start-up skills obtain some fundamental skills and be successful:
Most engineers and scientists don’t have the startup skills to launch a clean-tech startup. ECO founder is here to change that.
In February, three individuals filed a proposed class action lawsuit against BP Solar and Home Depot accusing the solar panel maker and retailer of greenwashing in connection with certain solar panels (see the complaint here).
Plaintiffs Michael Allagas, Arthur Ray, and Brett Mohrman alleged that there is a latent defect in the junction box of the BP solar panels that causes the box to fail and results in a total loss of functionality of the solar panels.
Specifically, the plaintiffs allege that the defect in the junction box and solder joints between connecting cables makes the solder joint overheat, which causes electrical arcing that generates temperatures of 2000-3000 degrees. According to the plaintiffs, the heat melts the junction box, burns the cables and solar panels, and shatters the glass cover of the panels.
The plaintiffs also alleged that BP’s advertising and marketing materials about the solar panels are false or misleading.
While the northern California federal court hearing the case previously dismissed some of the plaintiffs’ claims, a recent decision denied BP and Home Depot’s motion to dismiss the remaining claims.
The court found the pleadings sufficient to support plaintiffs’ express warranty claims for breach of the express defect and power warranties because they stated that a latent defect existed at the time the product was sold and that they relied upon BP Solar’s power warranty in purchasing the solar panels.
Similarly, the implied warranty claims were held to be sufficient because plaintiffs clearly alleged a latent defect in the solar panels that renders them unmerchantable and unfit for their intended use.
With respect to the advertising and marketing materials, the plaintiffs cited various sweeping representations made by BP Solar, including:
Promises that the solar panels will “drastically reduce or eliminate your electric bills . . . forever,” and will “increase the value of your home.”
A statement that “No other system can operate at a higher level of safety than those offered by BP Solar.”
BP Solar also made some specific representations about the output and life of the solar panels, including product data sheets warranting 80% power output for a 25-year period and a 90% power output for a 12-year period with a 5-year warranty of materials and workmanship.
The court held that plaintiffs’ claims under the Consumer Legal Remedies Act could go forward because the statements include “factual representations” that could be “likely to deceive a reasonable consumer.” The court concluded:
A reasonable consumer could have relied on these statements as descriptions of the quality and power capabilities of the solar panels.
The court maintained the plaintiffs’ fraud claims because they allege that BP knew of and concealed the defect:
The amended complaint also alleges BP’s knowledge of the latent defect in the solar panels, BP’s concealment of the defect, particular instances when information regarding the defect and risk of fire could have been revealed, and the warranties all three plaintiffs relied upon that failed to include the concealed information.
The court also denied the defendants’ motion to strike the class allegations, but left the door open for BP and Home Depot to contest those upon a subsequent motion by the plaintiffs for class certification.