Archive for November, 2008

Is Nichia’s LED Litigation War Chest Merely Monopoly Money?

November 23rd, 2008

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I’ve written several posts about the LED litigation wars between Nichia Corporation (Nichia) and Seoul Semiconductor, Inc. (Seoul), and they just get curiouser and curiouser.  The arch rivals have been through patent suits aplenty throughout the world, a false advertising suit stemming from one of those patent suits and now an antitrust suit whose narrative may tie it all together. 

Last month Seoul sued Nichia in federal court in San Francisco, accusing its rival of, among other things, monopolization and attempted monopolization for pursuing expensive and allegedly baseless litigation to squeeze Seoul out of the LED market.  According to the complaint (seoul-_antitrust_complaint.pdf), Nichia has filed over half a dozen suits against Seoul in California, Asia and Europe.

Seoul’s complaint accuses Nichia of implementing a comprehensive strategy of repeatedly filing and prosecuting frivolous lawsuits to fight back competition from other LED makers and preserve its monopoly power in the market for white side-view LEDs (used primarily to backlight LCD displays).   The complaint alleges that in 2007 Nichia’s worldwide share of this market was between 50 and 60 percent.

The centerpiece of Seoul’s monopolization claim is a patent infringement action involving four design patents that Nichia brought against Seoul and litigated to the finish for a paltry $250 verdict.  According to the complaint Nichia’s lawyers contrived a fake purchase of LEDs from Seoul just to create a U.S. sale and establish jurisdiction for the lawsuit.  The complaint states:

 [Nichia] then invested over $10 million to prosecute its baseless lawsuit — worth only $62 in actual damages — not to collect the $62 but to deploy the heavy machinery of litigation to crush its smaller rival and thereby fence out competition in the fast growing world market for LEDs that Nichia had long dominated.

Indeed, in an order (order.pdf) denying Nichia attorney fees in that case Judge Maxine Chesney characterized Nichia’s actions in that lawsuit as “using a sledgehammer to kill a gnat” and suggested that Nichia’s persistence may have been an attempt to gain “some unstated ancillary advantage” over Seoul. 

Here Seoul claims that the ancillary advantage Nichia sought was to “frighten customers from buying from [Seoul] and to frighten rivals from competing with Nichia.”  To defend that patent infringement suit against Nichia, Seoul had to spend about $8 million.  Frightening indeed.

Green Patent Blog will be on vacation for two weeks.

Open Energy Shows Versatility with Energy Management and Solar Solutions

November 19th, 2008

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Open Energy Corp. (Open Energy) is a Solana Beach, California company that develops solar products and energy management solutions. 

Open Energy recently announced the launch of its EcoTouch Energy Management System (EcoTouch), which the company is developing and marketing in partnership with Advanced Telemetry.  The EcoTouch system is designed to provide homeowners with detailed information about their energy use and improved ability to conserve energy.

EcoTouch tracks and displays the total energy demand and net energy usage for a home in real time and allows homeowners to view and control different household devices to reduce their energy costs.  The system can be connected to a homeowner’s solar installation and provides detailed information including the number of kilowatt hours produced by the solar installation.

Open Energy recently filed a trademark and service mark application (ecotouch_app.pdf) for the ECOTOUCH mark for home automation systems that monitor energy consumption, in Class 9, and for computer network services for monitoring and controlling home automation systems, in Class 38.

Open Energy also owns at least two patent applications relating to photovoltaic systems for rooftops.  U.S. Application Pub. No. 2005/0178428 (’428 application) is directed to a layered system for roof mounting that is specifically designed for use with large photovoltaic cells. 

The system of the ’428 application includes a flexible base membrane layer on the bottom that attaches to the roof, a photovoltaic layer, a semi-rigid layer to provide rigidity to the PV layer, and a top, transparent layer to protect the other layers.  The four layers are attached to form a unitary structure.

U.S. Application Pub. No. 2008/0149163 (’163 application) is directed to a system for mounting photovoltaic cells.  The system comprises a tile frame (6) which houses the solar cells and expansion arms (90) with wells (96) that contain an adhesive.  The adhesive is used to bond protective covers to the tiles.

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The tile frames also have openings shaped to accommodate the expansion arms and vents (110) to keep the PV cells cool.  Multiple tiles are connected by advancing the expansion arms of one tile through the openings of an adjacent tile. 

With both energy management and solar solutions, Open Energy is a diverse company targeting the clean energy market from multiple angles.

Solyndra’s Solar Cylinders are on a Roll

November 16th, 2008

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Fremont, California solar startup Solyndra has been getting a lot of attention lately for its cylindrical solar panels (see the Ecogeek story here).  Instead of traditional solar panels, which are flat, Solyndra’s thin-films are rolled into tubes.

According to the company, its panels are more productive than flat cells because they can capture direct, indirect and reflected light across their 360-degree photovoltaic surface (see Solyndra’s drawing and explanation here). 

In addition, the cylinders are mounted horizontally and packed close together so they cover more surface area and collect more sunlight.  By contrast, conventional flat panels are angled and spaced apart so the sunlight striking the spaces between the panels is not collected.

The Solyndra panels also are easier and cheaper to install than conventional panels because of the simple horizontal mounting.  In addition, the fact that they are lightweight and allow wind to blow through them often obviates the need for additional anchoring structure.

Solyndra has at least two patents that cover its cylindrical solar panels.  U.S. Patent No. 7,196,262 (’262 patent) is entitled “Bifacial elongated solar cell devices” and is directed to a solar cell assembly (400) having elongated solar cells (402).   

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Each solar cell (402) has a conductive core (404) and a semiconductor junction (410) around the circumference of the core.  An outer transparent conductive oxide layer (412) is on top of the semiconductor junction layers (410) and completes the circuit. 

According to the ’262 patent, this assembly provides the advantages of 360-degree solar cell exposure and electrical connection in series to increase voltage and minimize resistive losses across the system.

U.S. Patent No. 7,394,016, entitled “Bifacial elongated solar cell devices with internal reflectors,” improves upon the ’262 patent by adding internal reflectors to the solar panel assembly.  The reflectors are placed in between two solar cells and reflect sunlight so that a portion of the light is reflected on each adjacent solar cell.

One indication that people are favorably impressed with Solyndra is that the company recently announced sales contracts worth about $1.2 billion.

Prosecuting Eco-Marks Part V: Acquired Distinctiveness Wins the Day for GREEN PATENT BLOG

November 13th, 2008

In a previous post, I discussed the new argument and accompanying evidence of acquired distinctiveness that I raised in prosecuting the GREEN PATENT BLOG eco-mark application.

Acquired distinctiveness is a trademark law concept which means that the mark, though it may not be inherently distinctive enough for trademark protection, has become sufficiently distinctive through use so that consumers have come to recognize it as a source identifier for the goods or services.

The argument was presented in a Request for Reconsideration after the U.S. Patent & Trademark Office (PTO) issued a final Office Action rejecting my application on descriptiveness grounds.

Last month the PTO issued a Notice of Publication (gpb_notice.pdf), which means the Examining Attorney was persuaded by the acquired distinctiveness argument and believes the GREEN PATENT BLOG trademark application is allowable.

The next step is that my trademark information is published for opposition, and if nobody opposes registration within 30 days, it will become a registered trademark.

Many thanks to those of you who provided evidence for me in the form of e-mails stating that GREEN PATENT BLOG has come to identify my blogging services.  I couldn’t have done it without you, my readers.

I can’t help but recall a comment on one of my earlier posts in this series from an anonymous reader who outlined his or her rather bleak view of my options at the time:

Let’s see. Your options are (1) give up; or (2) request reconsideration by the Examining Attorney, and lose; and/or (3) file an appeal and lose; and/or (4) change the name of your blog to something that might be registrable.

If there’s one lesson to learn from this experience, it’s don’t get discouraged by ‘nonymous nabobs of negativism.

Bricor Sues Ecotech Over Seinfeldian Low Flow Showerhead Technology

November 10th, 2008

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Since low flow showerheads were installed in Jerry and Kramer’s apartment building in 1996, advances in the technology have eliminated the low impact problems that rendered the sitcom sidekicks unable to get the shampoo out of their hair (see The Showerhead).  

Bricor Analytical, Inc. (“Bricor”) is a Texas company that makes low flow water conservation products.  Bricor owns U.S. Patent Nos. 6,260,273 (’273 patent) and 7,416,171 (’171 patent), which relate to low flow showerhead technology.

Last month Bricor filed suit against Ecotech Water LLC (“Ecotech”), in federal court in Grand Rapids, Michigan, accusing its Florida-based competitor of infringing the ’273 and ’171 patents.  The complaint (bricor_complaint.pdf) did not identify which Ecotech products were alleged to infringe the patents.

Both patents are directed to “Venturi”-based vacuum valves for use with showerheads.  The Venturi effect refers to the increase in velocity that occurs when a fluid flows through a constricted section of pipe. 

According to the patents, prior low flow devices had drawbacks including incompatibility with pre-existing showerheads, a lot of moveable parts and attachments, and air entering from the outlet end, which increased clogging and fouling of the device.

Bricor’s patented valve (10) has a plug (12) with a first opening (14), a second opening (16) and a third opening (18), which forms an air suction hole.  The water flows in the direction of arrow 28. 

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Instead of air entering at the outlet end, as in prior art devices, the air enters the third opening (18).  The air mixes with incoming water and, due to the suction force, produces a hard, rushing stream of water at a reduced flow rate. 

Bricor’s patented technology conserves water while the improved shower performance presumably gets the shampoo out of your hair.

Note:  thanks to Stu Soffer for bringing this case to my attention.

Eco-Marks for Green Certified Meetings

November 7th, 2008

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Meeting Strategies Worldwide (MSW), a Portland, Oregon event management company, has launched a web site that helps meeting planners and conference organizers find green venues for their events (see the Matter Network story here).

The MeetGreen site provides two resources:  the MeetGreen Scorecard, which ranks cities based on green tourism and convention center programs, and the MeetGreen Calculator, which allows event planners to estimate the emissions footprints for potential destinations.

MSW’s backs up its tools with the MeetGreen Certification program, which evaluates the environmental meeting management practices of conference hosts to assure that they minimize the environmental impact of events in their venues.

MSW owns U.S. Service Mark Registration No. 3,387,871 for the MEETGREEN word mark and U.S. Certification Mark Registration No. 3,408,122 (’122 registration) for the CERTIFIED MEETGREEN design mark pictured above.

According to the ’122 registration (meetgreen_reg.pdf), MSW’s CERTIFIED MEETGREEN mark certifies that:

a conference, meeting, or exhibition complies with established environmental policies and practices in conference, meetings and exhibitions such as those regarding creation and communication of policies and measures designed to minimize waste and resource use, recycling, offset and donation programs, and the purchase and use of environmentally friendly materials and products

I, for one, will certainly check to see if the next conference I attend is MeetGreen Certified.

Business Method Patents Go Green as Bilski Raises the Bar for Patentability

November 4th, 2008

When most of us think of green patents, it is technology such as fuel cells, solar panels and wind turbines that first comes to mind.  But there was an interesting article in IP Review Online about a study which found that patents directed to methods of carbon trading are also driving the green patent surge.

The study (which I could not find online) is called “Carbon Trading:  Patently Set for Growth” and, according to the article, identifies a link between funding from the World Bank Carbon Finance Unit and increased patent filings for business method patents relating to carbon trading tools and forms of carbon administration.

The report’s findings are particularly interesting coming now, when the patent law world is digesting a very significant decision regarding business method patents. 

In an en banc opinion decided on October 30, the U.S. Court of Appeals for the Federal Circuit (the court that hears all patent appeals from federal courts and the U.S. Patent & Trademark Office (PTO)) held that a process is patentable only if (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.  (see the Patently-O discussion of the decision here)

The In re Bilski decision affirmed a PTO ruling that a claimed method of hedging risks in commodities trading does not satisfy the patentable subject matter requirements of section 101 of U.S. patent law.  Bilski’s claims did not pass the “machine or transformation” test because:

[T]he process as claimed encompasses the exchange of only options, which are simply legal rights to purchase some commodity at a given price in a given time period. The claim only refers to “transactions” involving the exchange of these legal rights at a “fixed rate corresponding to a risk position.” Thus, claim 1 does not involve the transformation of any physical object or substance, or an electronic signal representative of any physical object or substance.

Though business method patents are not dead – patent practitioners will undoubtedly find new ways to draft and argue them – the effects of In re Bilski will certainly be felt in the growing field of carbon trading.

Court Bounces Idaho Energy DJ for Lack of PJ

November 2nd, 2008

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In a previous post I wrote about parties to a biodiesel processor dispute battling over home court advantage.  There, Agri-Process Innovations (API) succeeded in getting its case against Greenline Industries heard in API’s home state of Arkansas.

The most common litigation tool for getting a case heard on your home turf is the declaratory judgment action (DJ).  In the patent infringement context, this means the accused infringer (or DJ plaintiff) beats the patent holder (or DJ defendant) to the punch by filing suit first and asking the court for a judgment of no infringement or patent invalidity.

The DJ plaintiff in a patent case must show that an actual controversy exists between the parties having adverse legal interests and that the DJ plaintiff is engaging in infringement or concrete steps with the intent to engage in infringement.

As in all lawsuits, the DJ plaintiff also has to establish personal jurisdiction (PJ) over the DJ Defendants.  Personal jurisdiction can be either general (i.e., the defendant has sufficient contacts in the forum state generally to justify PJ regardless of whether there was a connection between the acts leading to the lawsuit and the state) or specific (there was a connection between the specific acts leading to the lawsuit and the forum state).

Idaho Energy LP, dba Energy Products of Idaho (EPI) is an Idaho company that designs, manufactures and sells fluidized bed energy systems.  Harris Contracting Company (Harris), Alliant Energy Corporate Services and Von Roll, Inc. (collectively DJ Defendants) are co-holders of U.S. Patent No. 7,263,934 (’934 patent), entitled “Methods for generating energy using agricultural biofuel.” 

The ’934 patent is directed to a process for producing steam from ethanol byproducts such as grain stillage syrup by combusting the byproducts in a fluidized bed reactor.

After several communications and license offers between Harris and EPI and one alleged instance of Harris threatening one of EPI’s potential customers about the ’934 patent, EPI filed a DJ action in federal court in Boise, Idaho seeking a declaratory judgment of patent invalidity and making other claims including business defamation, unfair competition, trade libel and interference with prospective economic advantage.

The DJ Defendants moved to dismiss the case for lack of DJ jurisdiction and lack of PJ.  Recently, Judge Edward J. Lodge issued an order (epi_order.pdf) in which he found that there was DJ jurisdiction, but EPI had failed to establish PJ over the DJ defendants.  

The court found that none of the DJ Defendants did business in Idaho or had any other continuous presence in the state, so there was no general jurisidiction over them. 

As to specific jurisdiction, the court held that none of the alleged actions leading to the lawsuit had a connection to Idaho.  The alleged improper statement made to EPI’s potential customer did not involve Idaho customers and was not directed to the state.

The court also noted that letters threatening infringement litigation or the need for a license are insufficient to confer personal jurisdiction without other actions directed to the forum state.  So EPI’s DJ was dismissed for lack of PJ.