Sustainable Agriculture and the Rise of GMO Patents

May 24th, 2016 by Anna Lippert* No comments »

220px-Golden_Rice

At the Patents for Humanity Awards last year the U.S. Patent and Trademark Office (USPTO) gave awards to seven patents for innovations in different humanitarian fields including sanitation, energy, and medicine.

Among these seven, winning an award for its work in nutrition was U.S. Patent No. 7,838,749 for Golden Rice.  Invented by Ingo Potrykus of the Swiss Federal Institute of Technology and Peter Beyer at the University of Freiburg, the rice has a genetically engineered carotenoid pathway to biosynthesize beta-carotene, allowing for the rice to have a higher level of vitamin A than conventional farmed rice.

The purpose behind the development of Golden Rice is to provide the enhanced rice to developing countries with the goal of lowering the rate of vitamin A deficiencies and the deaths due to those deficiencies. The inventors teamed up with the seed manufacturing company Syngenta (pending an $43 billion offer for purchase by ChemChina) in order to provide the seeds free of cost to developing countries.

Golden Rice, however, has not been entirely accepted with open arms. Many people today disapprove of the use of genetically modified organisms (GMO) in agriculture for health reasons, and the increase of resistances to disease and pesticides etc. within the crops themselves, which then require more genetic engineering to fight off the higher resistances.

As we move further into the 21st century, biotechnology is becoming more advanced and innovations easier to achieve, raising the question about agricultural GMO patents.

On one hand, like Golden Rice, these inventions could potentially save thousands of lives. On the other hand, GMO’s are still new and scientists are not fully aware of any long term implications they may have.

As GMO patents become more abundant, the USPTO, other national intellectual property offices, and IP policymakers will face serious scientific and moral issues surrounding GMO work within agriculture and the policies connected to them creating the need for more collaboration between the scientific and legal communities.

*Anna Lippert is a 2015 graduate of Purdue University with a Bachelors of Science in Natural Resources and Environmental Sciences.  Ms. Lippert is a certified OSHA hazardous waste technician and currently a second year law student at Golden Gate University School of Law with a focus on agricultural and environmental toxicology patent law. 

Clean Tech in Court: Green Patent Complaint Update

May 17th, 2016 by Eric Lane No comments »

March and April saw a big uptick in green patent lawsuits filed, mostly driven by LED actions.  The suits were in the areas of energy storage, LEDs, and smart grid.

 

Energy Storage

Praxair, Inv. v. Air Liquide Large Industries U.S. LP

Connecticut based Praxair sued rival Air Liquide for infringement of a patent relating to underground hydrogen storage.

Filed in federal court in Beaumont, Texas, the complaint alleges that Air Liquide’s operation of its Spindletop hydrogen storage cavern infringes U.S. Patent No. 8,690,476 (‘476 Patent).

The ‘476 Patent is entitled “Method and system for storing hydrogen in a salt cavern with a permeation barrier” and directed to a method and system for storing high purity hydrogen in a salt cavern without seepage or leakage by creating a permeation barrier along the salt cavern walls.

LEDs

Lighting Science Group Corporation v. Nicor, Inc.

Lighting Science Group Corporation v. Globalux Lighting LLC

Lighting Science Group Corporation v. EEL Company 

Lighting Science Group Corporation v. Panor Corporation

Lighting Science Group Corporation v. S E L S, Inc.

Lighting Science Group Corporation v. Sunco Lighting, Inc.

Lighting Science Group (LSG) continued its patent enforcement activity, filing six new infringement lawsuits, all in the U.S. District Court for the Middle District of Florida.

The complaint against Nicor was filed March 10, 2016.  The rest were filed on April 21, 2016 against Globalux Lighting (Lighting Science Group Corporation v. Globalux Lighting LLC), EEL Company (Lighting Science Group Corporation v. EEL Company, Ltd.), Panor Corporation (Lighting Science Group Corporation v. Panor Corporation), S E L S (Lighting Science Group Corporation v. S E L S, Inc.), and Sunco Lighting (Lighting Science Group Corporation v. Sunco Lighting, Inc.).

Each complaint asserts at least two of the following patents:  U.S. Patent No. 8,201,968 (‘968 Patent), U.S. Patent No. 8,967,844 (‘844 Patent), and U.S. Patent No. 8,672,518 (‘518 Patent).

Entitled “Low profile light,” the ’968 Patent is directed to a luminaire including a heat spreader and a heat sink disposed outboard of the heat spreader, an outer optic securely retained relative to the heat spreader and/or the heat sink, and an LED light source.

The ‘518 Patent and the’ 844 Patent are entitled “Low profile light and accessory kit for the same” and relate to LSG’s disc light LED devices.

 

Fiber Optic Designs, Inc. v. Holidynamics, Inc. et al.

Fiber Optic Designs (FOD) sued Holidynamics and Anewalt’s Lawn & Landscape March 10, 2016 in U.S. District Court for the Eastern District of Pennsylvania.

The complaint alleges that Holidynamics’ M8, C6, T5, and 5MM (WA) LED Light Sets infringe three FOD patents relating to LED light strings.

The patents-in-suit are U.S. Patent Nos. 7,220,022 (‘022 Patent) and 7,934,852 (‘852 Patent) both entitled “Jacketed LED assemblies and light strings containing the same,” as well as U.S. Patent No. 7,377,802, entitled “Plug and cord connector set with integrated circuitry” (‘802 Patent).

The ‘022 and ‘852 Patents are directed to jacketed light emitting diode assemblies and a waterproof light string including an electrical wire set connected to positive and negative contacts.  A light transmissive cover receives the lens body, and an integrally molded plastic jacket at the opening of the light transmissive cover provides a seal against moisture and airborne contaminants.

The ‘802 Patent is directed to a combination connector assembly and LED lighting chain that includes integrated circuitry for use with decorative lighting products. The integrated circuitry serves to reduce or limit current, provide full-wave AC to DC rectification, provide overload protection, reduce voltage, protect against voltage spikes, and add blinking or flashing functions.

 

Seoul Viosys Co. v. Salon Supply Store LLC

On March 18, 2016, Seoul Viosys filed a patent infringement lawsuit against Salon Supply Store in the U.S. District Court for the Southern District of Florida.

The complaint asserted five LED patents:

U.S. Patent No. 8,168,988, entitled “Light emitting element with a plurality of cells bonded, method of manufacturing the same, and light emitting device using the same”

U.S. Patent No. 7,982,207, entitled “Light emitting diode”

U.S. Patent No. 9,041,032, entitled “Light emitting diode having strain-enhanced well layer”

U.S. Patent No. 9,224,935, entitled “Light emitting diode package”

U.S. Patent No. 8,680,559, entitled “Light emitting diode having electrode extensions for current spreading”

The accused products include Salon’s Edge Medium Round LED Curing Lamp MAN-LED-TP27 and the 18W Salon Edge Curing Lamp Dryer Timer MAN-LED-TP35B.

 

Nichia Corporation v. Vizio, Inc. (E.D. Tex.)

Nichia Corporation v. Vizio, Inc. (C.D. Cal.)

Nichia filed two infringement suits against Vizio in March, one in the Eastern District of Texas, the other in the Central District of California.  In both cases, the technology at issue is LED-backlit televisions.

The Texas complaint, filed March 21, 2016, asserted U.S. Patent No. 8,530,250, entitled “Light emitting device, resin package, resin-molded body, and methods for manufacturing light emitting device, resin package and resin-molded body.”

The accused product is Vizio’s D-Series 28″ Class Full-Array LED TV D28h-C1.

The California complaint was filed on March 23rd and asserted four patents:

U.S. Patent No. 7,901,959, entitled “Liquid crystal display and back light having a light emitting diode”

U.S. Patent No. 7,915,631, entitled “Light emitting device and display”

U.S. Patent No. 8,309,375, entitled “Light emitting device and display”

U.S. Patent No. 7,855,092, entitled “Device for emitting white-color light”

The accused products are Vizio’s D-Series 28″ Class Full-Array LED TV D28h-C1 and E-Series 60″ Class Full Array LED Smart Television E60-C3.

 

LEDsON et al. v. Vision Light Worx, Inc.

In an action for design patent infringement, LEDsON sued Vision Light Worx on March 23, 2016 in the U.S. District Court for the Central District of California.

The patents-in-suit are:

U.S. Design Patent No. D651,739, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,683, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,684, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,680, entitled “Extrusion for light emitting diode based lighting apparatus”

U.S. Design Patent No. D649,681, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,682, entitled “Extrusion for LED-based lighting apparatus”

 

Ultravision Technologies, LLC v. Lamar Advertising Company et al.

In this lawsuit, Ultravision asserted four LED patents against Lamar Advertising and related companies as well as Irvin International.

Filed in federal court in Marshall, Texas on April 7, 2016, the complaint alleges that Lamar’s billboards and other outdoor advertising structures infringe the following patents:

U.S. Patent No. 8,870,410, entitled “Optical panel for LED light source”

U.S. Patent No. 8,870,413, entitled “Optical panel for LED light source”

U.S. Patent No. 9,212,803, entitled “LED light assembly with three-part lens”

U.S. Patent No. 9,234,642, entitled “Billboard with light assembly for substantially uniform illumination”

In addition to patent infringement, Ultravision asserts claims for breach of contract and misappropriation of trade secrets.

 

Tseng v. Skechers U.S.A., Inc.

An individual, Shen Ko Tseng, sued Skechers for alleged infringement of a patent relating to circuits for electronically controlling multiple LEDs and causing the LEDs to flash in predetermined lighting patterns.

The patent-in-suit is U.S. Patent No. 7,500,761, entitled “Circuit device for controlling a plurality of light-emitting devices in a sequence” (‘761 Patent).

The complaint alleges that certain Skechers LED illuminated shoes, including the Magic Lites line of footwear, infringe the ‘761 Patent.

 

RAB Lighting Inc. v. ABB Lighting, Inc. et al.

In another (mostly) design patent infringement suit, RAB has accused ABB, GenerPower, and GP Energy of infringing eight LED lighting design patents and one utility patent.

The asserted patents are:

U.S. Patent No. D547,484, entitled “Light fixture”

U.S. Patent No. D569,029, entitled “Light fixture”

U.S. Patent No. D691,320, entitled “Slim wallpack light fixture”

U.S. Patent No. D690,453, entitled “High bay LED light fixture”

U.S. Patent No. D579,141, entitled “Area light”

U.S. Patent No. D612,975, entitled “Square step light”

U.S. Patent No. D643,147, entitled “LED flood light”

U.S. Patent No. D747,534, entitled “Canopy LED light fixture with fins”

U.S. Patent No. 9,273,863, entitled “Light fixture with airflow passage separating driver and emitter”

The accused products include, inter alia, the LED Parking Garage Light, LED Canopy Light, LED Security Light, LED Slim Wall Light, and LED Wall Pack.

 

Lynk Labs, Inc. v. Schneider Electric USA

Filed April 25, 2016 in the U.S. District Court for the Northern District of Illinois, Lynk Labs’ complaint alleges that Schneider Electric is infringing three patents relating to LED circuits and drivers.

Specifically, Lynk Labs asserts infringement of U.S. Patent Nos. 8,148,905 (‘905 Patent) and 8,531,118 (‘118 Patent), both entitled “AC light emitting diode and AC LED drive methods and apparatus,” and 8,841,855, entitled “LED circuits and assemblies” (‘855 Patent).

The accused products are the Low Voltage Trac Systems manufactured and sold by Schneider and a company called Juno Lighting, which Lynk Labs sued separately for infringement last year.

 

Smart Grid

Endeavor MeshTech, Inc. v. Ericsson, Inc. et al.

Endeavor MeshTech (a wholly-owned subsidiary of patent monetization firm Endeavor IP) sued Ericsson in the U.S. District Court for the Southern District of New York on March 24, 2016.

The complaint accuses Ericsson of infringing three patents in a family – U.S. Patent Nos. 7,379,981 (‘981 Patent),  8,700,749 (‘749 Patent), and 8,855,019 (‘019 Patent), each entitled “Wireless communication enabled meter and network.”

The patents-in-suit relate to a self-configuring wireless network including a number of vnodes and VGATES.

The accused products and services are Ericsson’s SGN 3200 family of communication products including the SGN 3200 Smart Grid Node, the SGN 3260 Smart Grid Indoor Mini Node, the SGN 3280, Smart Grid Micro Node, the Smart Grid Node Manager, and the Smart Grid Node Manager Single Server.

 

Smart Meter Technologies, Inc. v. Duke Energy Corporation

Filed March 31, 2016 in the U.S. District Court for the District of Delaware, in this lawsuit (Smart Meter Technologies, Inc. v. Duke Energy Corporation) Smart Meter Technologies accuses Duke Energy of infringing U.S. Patent No. 7,058,524 (‘524 Patent) by distributing and installing advanced power meters.

The ‘524 Patent is entitled “Electrical power metering system” and directed to a wireless electrical power metering system including a processor having a multichannel power line transceiver, a wireless transceiver, and a power meter which measures power consumption information on a power line inductively coupled with the power meter.

The processor converts the power consumption information into IP-based data, and transmits same over the wireless transceiver to a remote monitoring station or across the internet for storage, analysis, and billing. The processor generates appliance control signals and generates same across the multichannel power line transceiver to remotely control appliances in response to power consumption trends.

 

Varentec, Inc. v. GridCo, Inc.

Varentec filed a patent infringement suit against GridCo on April 1, 2016 in the U.S. District Court for the District of Delaware.

The complaint alleges that GridCo’s SVC power management products infringe U.S. Patent Nos. 9,293,922 (‘922 Patent) and 9,014,867 (‘867 Patent).

The ‘922 and ‘867 Patents are entitled “Systems and methods for edge of network voltage control of a power grid” and directed to systems comprising a distribution power network, a plurality of loads, and a plurality of shunt-connected, switch-controlled VAR sources.  The shunt-connected, switch-controlled VAR sources may be located at the edge or near the edge of the distribution power network where they may each detect a proximate voltage.

The processor may be configured to enable the VAR source to determine whether to enable a VAR compensation component based on the proximate voltage and to adjust network volt-ampere reactive by controlling a switch to enable the VAR compensation component.

 

Various Bodies in Europe and the US Stay Active on Greenwashing

May 10th, 2016 by Eric Lane No comments »

Two recent greenwashing decisions in the United States and Europe highlight the various (sometimes overlapping) organizations involved in combating false or misleading green advertising claims.

BBB

In the U.S., the National Advertising Division (NAD) of the Better Business Bureau (BBB) recently examined environmental benefit and performance claims made in connection with “Eco Alkalines” batteries.

The manufacturer, LEI Electronics (LEI), agreed to most of the NAD’s recommendations including discontinuing certain advertising and modifying most of its environmental claims.

However, LEI pushed back against the NAD on LEI’s carbon neutrality claim, so the NAD referred that claim to the Federal Trade Commission (FTC) for review (see the BBB announcement here and the Lexology article here).

The statements that remain in dispute are:

[E]very purchase is carbon neutral….by purchasing Eco Alkalines batteries, you’re doing your part to reduce the CO2 and climate change impact brought about by the production, distribution, and disposal of alkaline batteries.

[The product is a] 100% carbon neutral alkaline battery.

erdgas

In Europe, the Lauterkeitskommission, the self-governing body of the Swiss commercial communications industry, found that certain claims made by the Swiss Gas Association (SGA, known as erdgas) regarding natural gas were insufficiently supported by evidence (see article here).

The disputed claims included the following statements:

Natural gas pollutes the environment less than oil, wood chips, pellets and coal power.

The most effective climate protection is to replace oil with natural gas.

Nature thanks you for purchasing a new natural gas heating.

The Lauterkeitskommission noted that the advertiser bears the burden of proving the truth of factual statements made in advertising.  It held that environmental superiority over competitors can be claimed only when the advertiser can demonstrate a significant advantage.

As to the SGA’s first claim, the Lauterkeitskommission held that the SGA’s evidence was insufficient to prove the superiority of gas over wood chips or pellets. The second claim was not sufficiently proven because, while natural gas may be superior to oil, there are other more environmentally beneficial heating systems.

The last claim was held to be permissible because it is “evident” that a new heating system would be superior to an old heating system.

While we’re used to the FTC and other national consumer watchdog agencies being involved in combating greenwashers, these investigations and decisions remind us that anti-greenwashing activity comes from many different types of organizations.

Paice Goes Straight to the Border with Patent Complaint Against VW

May 3rd, 2016 by Eric Lane No comments »

l_paice

Over the years this blog has covered important patent litigation and settlements involving hybrid vehicle technology company Paice and some major automakers, including Hyundai/Kia, Toyota, and Ford (see, e.g., the Ford post here).

Paice has notched up some big wins, including a $28.9 million jury award against Hyundai and Kia and a $4.3 million jury award against Toyota, and has and entered into at least three license agreements:  recently with Hyundai and Kia, with Ford, and back in 2010 with Toyota.

Although these cases have been litigated in various forums through the years, Paice was forced to make a tactical shift in venue selection after the U.S. Supreme Court’s eBay v. MercExchange decision in 2006.

In eBay the Supreme Court reversed the U.S. courts’ long-standing practice of automatically issuing an injunction upon a finding of patent infringement and instead held that the traditional four-factor equitable test for injunctive relief must be analyzed in each case brought under the patent statute.

The eBay decision came down just as the Paice-Toyota trial court was deliberating Paice’s motion for an injunction against Toyota.  With the trial court suddenly bound to analyze the four injunction factors, it refused to grant an injunction, instead awarding Paice an ongoing royalty of $25 per infringing vehicle (a figure that was later raised to $98 per vehicle).

So Paice turned to the U.S. International Trade Commission (ITC) to seek an exclusion order that would have banned importation of infringing vehicles.

The ITC is a federal agency that investigates trade and importation issues, including conducting quasi-judicial proceedings involving alleged infringement of intellectual property rights by importation of accused products pursuant to 19 U.S.C. § 1337 (Section 337).

It is a popular forum for patentees (though only injunctive relief is available, not monetary damages) because the proceedings progress much faster than those in the federal courts.

Also, critically for Paice and other non-practicing entities, the ITC is not bound by the eBay decision, which governs injunctive relief analysis under the patent statute, not Section 337 trade law (for a detailed review of the effect of eBay and the ITC on clean tech patent litigation see my article here).

Facing the very real prospect of an import ban, Toyota came to the negotiating table and, settled the suit, and entered into a licensing deal with Paice.

Which brings us to the latest news and the subject of this post.  Paice recently went back to the border and filed a complaint against Volkswagen (together with Porsche and Audi), asking the ITC to investigate alleged infringement of U.S. Patent Nos. 7,237,634, 7,104,347, and 8,214,097.

The three related patents are entitled “Hybrid vehicles” and cover hybrid electric vehicles utilizing an internal combustion engine with series parallel electric motors, regenerative braking, and control circuitry.

The Paice technology, developed back in the 1990s, is called the Hyperdrive System and provides seamless switching between power from an electric motor and an internal combustion engine.

The accused products listed in the complaint are the VW Jetta Hybrid, the Audi Q5 Hybrid, the Audi A3 e-tron Hybrid, the Porsche S E-Hybrid, and the Porsche Panamera S E-Hybrid.

The Paice complaint requests a permanent limited exclusion order that would stop the allegedly infringing hybrid vehicles and components from entering the United States.

It remains to be seen whether Volkswagen, like the other automakers, will determine that it is in its best interest to take a license to Paice’s hybrid vehicle patents.

EPA and Commodities Commission Cooperate to Fight Biofuels Greenwashing

April 26th, 2016 by Eric Lane No comments »

EPA and CFTC

Previous posts (e.g., here, here, here, and here) have covered a rash of fraudulent biofuels credits schemes in which companies falsely claim to produce biofuels and sell fake credits on the Renewable Identification Numbers (RINs) market.

A RIN is a numeric code generated by a renewable fuel producer or importer that represents a gallon of renewable fuel, and certain “obligated parties” in the fuel industry and related businesses can acquire RINs as a way to comply with the U.S. Environmental Protection Agency’s (EPA) Renewable Fuel Standard Program.

There have been a number of such schemes exposed over the last few years, and some of the individuals perpetrating them prosecuted and punished.

According to a spokesman for a biodiesel trade group quoted in this StarTribune article, the RIN scams have hurt the biofuels industry by making obligated parties more wary of purchasing the credits from biodiesel producers.

The EPA has been taking steps to mitigate this problem, including in 2014 promulgating additional regulations to ensure oversight of RIN generation and improve the RIN market (see the story here on Biofuels Digest).

Now the EPA is teaming with the Commodities Futures Trading Commission (CFTC) in an attempt to improve regulation and enforcement of RINs and renewable fuels markets.  The two agencies recently entered into a Memorandum of Understanding (MOU) to share information and provide inter-agency advice.

In particular, the EPA will share its information on RINs and renewable fuels markets while the CFTC will advise the EPA on oversight and enforcement to reduce fraud:

The Parties intend to coordinate, cooperate and share information . . . in the possession of the EPA with regard to the RIN and renewable fuels markets in connection with the respective regulatory and enforcement responsibilities of the Parties. . . .The CFTC . . . will use the information to advise EPA on techniques that could be employed to minimize fraud, market abuses or other violations, and to conduct appropriate oversight in RIN and renewable fuel markets to aid EPA in successfully fulfilling the EPA’s statutory functions under [the] Clean Air Act . . .”

Let’s hope this inter-agency cooperation will succeed in reducing biofuels credits greenwashing.

Federal Circuit Shows Deference to USPTO in Ruling Against Cree LED Patent

April 19th, 2016 by Eric Lane No comments »

A Green Patent Complaint Update from fall 2014 discussed one of the patent lawsuits between Cree and Harvatek in which Cree asserted several patents relating to white light LED technology.

One of those patents – U.S. Patent No. 6,600,175, entitled “Solid state white light emitter and display using same” (‘175 Patent) – was the subject of an ex parte reexamination proceeding in the U.S. Patent and Trademark Office (USPTO).

During the reexam, Cree added six claims to the patent.  The new claims  at issue are directed to the production of white light through “down-conversion” of blue light from LEDs.  Down conversion means absorbing high energy (shorter wavelength) light and re-emitting it as lower energy (longer wavelength) light to produce light of a desired wavelength, i.e., color.

The patent examiner rejected those claims as obvious over multiple combinations of prior art references including three particular patent references, and the USPTO’s Patent Trial and Appeal Board (PTAB) affirmed the examiner’s reasoning and conclusion.

In a recent decision, the U.S. Court of Appeals for the Federal Circuit, showing much deference to both the examiner and the PTAB, rejected all of Cree’s arguments on appeal and affirmed the PTAB’s obviousness holding.

The claims of the ‘175 Patent at issue recited an LED having a “down-converting luminophoric medium for down-converting the radiation emitted by the light-emitting diode to a polychromatic white light…”  In lighting applications, luminophoric materials are commonly called phosphors.

The primary prior art references were the Pinnow patent, which discloses a display system that creates black and white images using a blue laser and appropriate phosphors and explains how to make white light by down conversion; the Stevenson patent, which discloses LED light that may be converted to lower frequencies with good conversion efficiency using organic and inorganic phosphors; and the Nakamura patent, which discloses a gallium nitride (GaN) LED that emits a blue light that was brighter than similar, previously developed LEDs.

In the reexam, the examiner found it would have been obvious to substitute the LED of Stevenson with either the known UV light emitting or blue light emitting GaN-based LED in Nakamura, and this would be a simple substitution of one known element for another to gain the predictable result of brighter emission by the phosphors.

The PTAB agreed with the examiner’s reasoning and conclusion that the combination of Stevenson, Pinnow, and Nakamura rendered the ‘175 Patent claims obvious:

[T]he combined teachings of Stevenson, Pinnow, and Nakamura would have suggested to an artisan of ordinary skill to use a blue LED on a single die to create white light via “down-conversion” because Nakamura’s blue LED is more powerful than Stevenson’s older, less-efficient LED in terms of power and brightness and, as such, is more suitable with a “down-conversion” process to product white light…

According to the PTAB, the invention of the ‘175 Patent is “nothing more than a new application of a high-power, high-brightness blue LED developed by Dr. Nakamura in late 1993.”

The Federal Circuit opinion does not add much analysis to that of the patent examiner and the PTAB.  Rather, it is essentially a series of refutations of Cree’s arguments on appeal.  Throughout, the appeals court consistently defers to the PTAB’s conclusions.

In response to Cree’s contention that the Board erred by by assuming that it was disclosed in a single prior art reference (Pinnow) to make white light from a monochromatic LED through down conversion, the court said Pinnow provided, according to the Board, a general disclosure of down conversion for creating white light, which was “a perfectly reasonable conclusion.”

Cree also argued that the Board misread the declarations of Cree’s experts.  Again, the Federal Circuit found the conclusion the Board drew from the expert testimony that down conversion was a known solution for generating white light from a blue LED was “reasonable” and “supported by substantial evidence.”

Cree further argued that neither the examiner nor the Board articulated a rational motivation to combine the teachings of Pinnow, Stevenson, and Nakamura.  The court again disagreed, finding the Board “provided a sufficient, non-hindsight reason to combine the references.”

Perhaps one lesson here, though not really news, is to make sure to present all of your best arguments and evidence in the lower tribunals and not count on the appellate process to bail you out.

With New Lawsuits Against VW Greenwashing Focus Shifts to Consumers

April 12th, 2016 by Eric Lane No comments »

ftc_logo_430

Previous posts (here and here) discussed the Volkswagen emissions scandal in which the German automaker intentionally programmed a number of its diesel vehicles to activate emissions controls only during testing.

The vehicles’ software allowed the nitrogen oxide (NOx) output to satisfy U.S. emissions standards during testing while producing much higher emissions during actual driving conditions.

A few months ago, the U.S. Department of Justice (DOJ) filed a civil complaint against Volkswagen seeking injunctive relief and monetary penalties for the German automaker’s actions.  That lawsuit was filed at the request of the U.S. Environmental Protection Agency (EPA) and focused on the deception around the government testing.

Recently, the Federal Trade Commission (FTC), the U.S. government’s consumer protection and competition watchdog, sued Volkswagen on behalf of American consumers for false advertising in connection with the emissions scandal.  According to the complaint, the FTC brought this action:

…in connection with Defendant’s false advertising that its “Clean Diesel” vehicles had low emissions, complied with state and federal emissions standards, were environmentally friendly, and retained a high resale value.

The complaint details VW’s extensive advertising campaign directed at “progressive and “environmentally-conscious” consumers touting “diesel’s environmental and economic advantages.”  This advertising including a Super Bowl ad and other nationally-televised spots, a social media campaign, print advertising,and other marketing statements such as:

  • print advertising including the slogan “Diesel – It’s No Longer A Dirty Word”
  • a 2009 promotional mailer claiming the Jetta TDI Clean Diesel engine is “designed to reduce emissions”
  • a press release for the 2014 Touareg stating that the “deNOx diesel converter . . . helps reduce NOx emissions by up to 90 per cent”

The FTC alleges that VW’s marketing strategy materials indicated that one of the “key messages” it intended to convey through the word “clean” was that its “Clean Diesel” vehicles produce “NOx emissions [that are] reduced by 95 percent[.]”

Furthermore, according to the complaint, VW’s advertisements and marketing materials also falsely claimed that its vehicles complied with state and federal emissions standards.  Some of those materials included statements such as “Clean Diesel” vehicles “meet the strictest EPA standards in the U.S.”

Additional advertising claims at issue included statements that the vehicles are “environmentally-conscious,” “eco-conscious,” or “green” and that the “Clean Diesel” vehicles would have a higher resale value than comparable gasoline vehicles.

Among other causes of action, the FTC alleges that these and other advertising and marketing statements constitute unfair or deceptive practices in violation of Section 5(a) of the FTC Act that have caused substantial injury to consumers, who have “spent billions purchasing or leasing” VW vehicles.

The FTC is requesting that the court enter a permanent injunction to prevent future violations and other equitable relief to refund the monies paid by consumers for the vehicles at issue.

In addition to the feds, the states are starting to get involved as well.  The attorney general of Kentucky filed a similar false advertising lawsuit against VW, alleging violations of the state’s Consumer Protection Act (see story here).

 

EV Startup: You Can’t Have Our Patents!

April 1st, 2016 by Eric Lane No comments »

Bucking the recent trend of donating patents relating to electric vehicle technology, EV startup Whisker Electric announced that it would maintain its patents as private intellectual property.

In a statement made today, the company’s CEO, Waylon Tusk, had this to say:

Whisker is totally committed to protecting, defending, and enforcing its intellectual property.  Accordingly, we will not donate any of our patents.  We are very paranoid about big car companies copying our technology.  So we’re going to sue anyone who tries to use our technology in good faith, bad faith, or any other faith.  We don’t care what this may mean for the development of the electric vehicle industry.

“You can’t have our patents!  You can’t even license them!  I don’t care how much you want them or how much you’re willing to pay!” added CTO and Co-founder Norm Bradelson in a surprisingly testy conference call with reporters today.

The news from Whisker is in sharp contrast to a recent string of announcements by EV maker Tesla and two major automobile manufacturers either completely opening their EV and related patent portfolios or opening them for no fee licensing or paid licensing.

However, the reaction has been swift and positive, with the company receiving multiple unsolicited offers of major funding rounds from respected VC firms within minutes of Whisker’s announcement.

In addition, Whisker’s VP of Business Development, Austin Milbarge, told Green Patent Blog that over 10,000 new pre-orders have been made today for the company’s latest model EV.

The company has also received a flood of job applications from young engineers, including some current and former Tesla employees, particular those that were named inventors on Tesla’s patents.

The news even made it into the American presidential campaign when a reporter asked Donald Trump, the front runner for the Republican nomination, his view of Whisker’s announcement.  Trump responded, “I like these guys.  This is my kind of selfish, short-sighted capitalism.  Though personally I prefer to drive a Hummer.”

Thomas Jefferson School of Law IP Symposium to Examine AIA Aftershocks

March 25th, 2016 by Eric Lane No comments »

tjsl

For IP mavens who live in Southern California and those of you who may be in town next week, Thomas Jefferson School of Law in downtown San Diego is hosting a symposium on post-grant proceedings under the America Invents Act.

Entitled “Aftershocks of the AIA’s Post Grant Proceedings:  Its Advocates & Critics,” the symposium will be held on Friday, April 1, 2016.

In what has become a much anticipated annual event, Professor Randy Berholtz and his students have again put together a fabulous program on a hot button IP issue.

The symposium will focus on whether the new post-grant review process and other provisions of the AIA are actually solving the problems they were intended to solve and discuss other issues relating to the AIA:

[The AIA’s] intention to invalidate bad patents and encourage innovation for the benefit of the general public has solved some problems its predecessor has left in its wake.  However, the AIA is not without its own problems.  This project aims to present recommendations to close the gap in pursuing a fairer and expedited patent review systems.

There are too many speakers to list here, but notable ones include:

Gregg Anderson, Administrative Patent Judge for the USPTO

Hon. Cathy Ann Bencivengo, Judge of the U.S. District Court for the Southern District of California

Hon. Paul R. Michel (Ret.), U.S. Court of Appeals for the Federal Circuit

Gene Quinn, Patent Attorney and President of IPWatchdog.com

The event is approved for 6 hours of MCLE credit.  Full information on the symposium can be found here and registration info is here.

Texas Biofuel Tax Credit Fraudster Gets Jail Time

March 22nd, 2016 by Eric Lane No comments »

In one of the “Greenwashing 2.0” stories we’ve been following (see here and here), an individual recently was sentenced to over 10 years in jail for his role in running a fraudulent biofuel tax credits scheme.

A Texas federal judge sentenced Philip Joseph Rivkin to 121 months in prison and ordered him to pay more than $87 million in restitution and forfeit $51 million.

Last year, Rivkin, which is not the individual’s real name, pleaded guilty to making a false statement under the Clean Air Act and to mail fraud for his role in the scheme, which included attempts to defraud the U.S. Environmental Protection Agency (EPA).

In the plea agreement, he admitted that he falsely generated renewable fuel credits between July 2010 and July 2011 and sold them to oil companies and brokers, generating over $29 million.

Rivkin was indicted in 2014 for allegedly selling fraudulent renewable identification numbers (RINs).  The indictment alleged that an individual using the name Philip Joseph Rivkin controlled and operated Green Diesel LLC and claimed that the company produced millions of gallons of biodiesel at its Houston facility then generated and sold about 45 million RINs based on the claim.

However, according to the indictment, Green Diesel did not actually produce any biodiesel at its facility, and the defendant allegedly made millions of dollars selling the fraudulent RINs.

Because the fraudulent activity in this case did not involve individual green consumers and consumer products such as water bottles, cleaning supplies, or hybrid vehicles, this would not typically be thought of as a greenwashing case.  But the fraudulent activity does represent a serious instance of greenwashing.

The fraud and resulting damage are recognizable when we view the putative RIN purchasers as green consumers, albeit commercial consumers instead of individuals, falling victim to false representations about the validity of renewable energy-based financial products.

A number of fraudulent biodiesel schemes have been perpetrated in the last few years.  But the authorities have been successful in exposing them and prosecuting the individuals involved.  Some individuals were sentenced to jail time last year in a similar case in Florida.

In view of the proliferation of fraudulent RIN schemes, the EPA has promulgated additional regulations to ensure oversight of RIN generation and improve the RIN market.