Green Patent Blog is on vacation.
With the close of another round of United Nations Framework Convention on Climate Change (UNFCCC) treaty talks, this one held in Cancun from November 29 – December 10, it is important to look at how green patents fared in the negotiations and the final agreement.
But first, some background.
Last year, when I became aware during the run up to the Copenhagen meeting that intellectual property rights were being debated, the first question that popped into my mind was: why are IP rights even on the agenda in the climate change treaty discussions?
To me, IP seemed tangential at best to the problems of shaping policies to mitigate climate change, taking a back seat to a maximum temperature rise target, greenhouse gas emissions targets, carbon taxes, cap and trade, etc.
Turns out neither the original UNFCCC treaty nor the current Kyoto Protocol expressly mentions intellectual property. However, the treaty text contains the following reference to technology transfer and access:
Parties “shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties . . .”
This passage, at Article 4, paragraph 5 of the UNFCCC treaty, establishes an obligation on the part of the signatories to ensure that developing countries have access to clean technologies. As part of the implementation of this provision, the UNFCCC has encouraged developing country parties to undertake technology needs assessments, and in particular, to “identify the barriers to technology transfer and measures to address these barriers . . .”
Over the years, various meetings of the parties to the treaty produced additional statements, goals, and actions, which consistently framed the debate about how best to mitigate climate change in terms of barriers and obstacles to technology transfer.
The Bali Action Plan of 2007 is a notable example. The Bali plan directed the parties to consider ways to accelerate transfer of clean technologies. One express element of such transfer was the “removal of obstacles to . . . scaling up the development and transfer of technology to developing country Parties in order to promote access to affordable environmentally sound technologies . . .”
This barrier argument gained momentum and clarity in the run up to the Copenhagen meeting in December 2009 as the UN and developing country parties focused on IP rights as the chief barrier to the clean tech transfer. As the preparations for Copenhagen heated up over the course of 2009, proposals were continually put forth to weaken or even eliminate patent rights in clean technologies.
In May 2009, the UNFCCC Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) published its proposed negotiating text that would serve as the foundation document for developing the next round of treaty discussions to replace the Kyoto Protocol after 2012. The AWG-LCA’s text included proposals to weaken or evade patent rights such as compulsory licensing of clean technologies, preferential pricing for such technologies, exempting certain countries from patent protection, and pooling or sharing of publicly funded clean technologies.
The developing country parties followed suit in their proposed negotiating texts, which contained more extreme measures, such as the following:
mandatorily exclude from patenting climate-friendly technologies held by developed country parties (proposed by the G77 + China)
revoke in developing countries all existing patents on “essential/urgent environmentally sound technologies” (proposed by Bolivia)
guarantee access to IP on royalty-free terms for developing countries (proposed by the Philippines)
Proposals such as these perpetuated the notion that IP serves as a barrier to transfer of clean technologies to developing countries (though there is evidence to the contrary, which I’ve discussed here and here).
Despite this push to weaken or eliminate IP rights, the deal signed at Copenhagen made no mention of IP. The only piece of the Copenhagen Accord relating to technology transfer was a vague commitment to establish a “Technology Mechanism” in order to “accelerate technology development and transfer in support of action on adaptation and mitigation.”
Now, back to Cancun. An Intellectual Property Watch article noted that IP rights were being discussed in the run up to Cancun, and that the references to IP rights in the official negotiating text for the meeting appeared mostly in brackets to reflect the disagreement by the parties over these provisions.
This bracketed material included Point 13 of Chapter IV, entitled “Intellectual Property Rights,” which proposed a list of measures “to remove barriers to the development and transfer of technologies arising from intellectual property rights protection.” These included creating a global IP rights pool for climate change, sharing publicly funded technologies, excluding clean technologies from IP protections, and revoking IP protections on clean technologies.
As in Copenhagen, the agreement that came out of Cancun contained no reference to IP. Section IV.B on technology development and transfer fleshed out the objectives, functions and structure of the Technology Mechanism.
Fortunately, the Cancun Accord did not mention any specific IP-related proposals.
In view of the continuing rhetoric about IP rights as a barrier to clean tech transfer and the repeated calls for weakening or eliminating clean tech IP rights, a climate change agreement that ignores IP is good news for green patents.
In a previous post, I wrote about the wind energy eco-mark suit between two competing Minnesota wind system companies, Jacobs Wind Electric Co. (Jacobs) and Wind Turbine Industries Corp. (WTIC), over rights to the JACOBS word mark and the JACOBS WIND ENERGY SYSTEMS “whale tail” design mark (shown above) (collectively “JACOBS marks”).
Last month, a federal court in Minneapolis granted WTIC’s motion for partial summary judgment (jacobs_order.pdf), holding that WTIC has priority over Jacobs and therefore has the right to use the JACOBS marks.
There were two reasons for the court’s decision. First, Jacobs had assigned the rights to the JACOBS marks to another entity in 1980.
That year, the rights to the JACOBS marks were transferred to a separate corporation, Jacobs Delaware, which subsequently changed its name to Earth Energy Systems, Inc. (EESI). Jacobs also became subject to a non-compete agreement at that time and agreed not to use the JACOBS marks in connection with the manufacture or sale of wind energy equipment.
In 1986 Jacobs Delaware/EESI assigned all rights to the JACOBS marks to WTIC. Jacobs Delaware/EESI ceased operations in 1988.
Although Jacobs contended that it never sold its wind energy business to Jacobs Delaware and that the subsequent assignment to WTIC was invalid, the court disagreed on both counts.
Specifically, Jacobs argued that Jacobs Delaware was a joint venture with Jacobs that relied on Jacobs to maintain the quality of the wind energy systems. Because this right and duty was non-assignable and WTIC was not responsible for quality control, Jacobs asserted, Jacobs Delaware/EESI’s assignment to WTIC was null and void.
The court rejected these arguments and held that the assignment to WTIC was valid:
Because the assignment at issue provided that [WTIC] would exercise reasonable supervision of the quality of goods sold by EESI, and because EESI’s use of the JACOBS mark would be a continuance of its previous use, the Court finds that the assignment of the JACOBS mark to [WTIC] in 1986 is valid.
Second, the court held that Jacobs had abandoned its use of the JACOBS marks. The record showed that Jacobs ceased using the marks in 1980 when it sold the business to Jacobs Delaware and had not manufactured any new wind energy systems in the last thirty years.
The long time frame created a presumption of abandonment, and Jacob’s resale of a small number of wind energy systems was deemed insufficient to overcome the presumption.
The court ordered cancellation of Jacobs’ U.S. Trademark Registration 1,532,714 for the JACOBS WIND ENERGY SYSTEMS “whale tail” design mark (‘714 Registration) (714_reg.pdf) and further ordered the U.S. Patent and Trademark Office to refuse registration of Jacobs’ U.S. Trademark Application No. 76/677,473 for the JACOBS word mark (‘473 Application) (473_app.pdf).
Jacobs is appealing the decision (appeal_notice.pdf).
Neste Oil (Neste) is a Finnish oil refining company that focuses on advanced, low-emission transportation fuels.
Neste has the distinction of starting up the world’s largest biodiesel plant, which began production last month in Singapore. The plant has an annual capacity of 800,000 tons and will produce biodiesel fuel using Neste’s NExBTL renewable diesel production technology.
Neste owns more than 30 international patent applications, including at least two directed to biodiesel production technology.
International Publication No. WO 2007/068798 (‘798 Publication) is entitled “Process for the manufacture of hydrocarbons” and is directed to processes for manufacturing branched saturated hydrocarbons that include a skeletal isomerisation step followed by a deoxygenation step.
According to the ‘798 Publication, the process uses renewable sources, such as plant, vegetable, animal and fish fats and oils and fatty acids and first subjects them to skeletal isomerisation, which means forming branches in the fat molecule’s main carbon chain while maintaining the same number of carbon atoms.
Then the branched hydrocarbons are deoxygenated by either hydrodeoxygenation, which removes the oxygen in the form of water, or carboxylation/decarbonylation, which removes the oxygen in the form of CO or CO2.
According to Neste’s renewable diesel product information page, the NExBTL biodiesel provides better performance than conventional biodiesel due to a high cetane number that allows efficient combustion. Cetane number is a metric for describing the ignition quality of diesel fuel or its components.
The ‘798 Publication states:
A high quality hydrocarbon product with good low temperature properties and high cetane number is obtained, employing minimum amount of hydrogen in the process.
According to Neste’s press release, the NExBTL biodiesel enables reductions in greenhouse gas emissions of between 40-80% over the product’s entire life cycle compared to fossil diesel. The exact number depends on the type of feedstock used and the percentage blending with conventional diesel.
A second Neste patent application directed to biodiesel production technology is International Publication No. WO 2008/152199 (‘199 Publication). The ‘199 Publication, entitled “Process for producing branched hydrocarbons,” is directed to processes for producing saturated hydrocarbons for use as diesel fuels through a condensation step and a combined hydrodefunctionalization and isomerisation step.
The process starts with a biological feedstock and first condenses it, which the ‘199 Publication defines as combining two feedstock molecules to form a molecule long enough to serve as a diesel or other fuel.
Next, the condensed product is subjected to a combined hydrodefunctionalization and isomerisation step to remove oxygen, nitrogen and sulphur atoms and isomerize the molecules into branched hydrocarbons.
According to the ‘199 Publication:
The obtained diesel fuels, kerosenes and gasolines can be mixed in conventional fuels without any blending limitations and they fulfill the highest technical requirements without extensive use of additives.
Like the hydrocarbons they produce, Neste’s biodiesel plants are branching out across the globe. Before the Singapore plant came on stream, the company was operating two renewable diesel plants in Porvoo, Finland. Neste is also building another facility comparable in scale to the Singapore plant in Rotterdam, which is scheduled to start production in the first half of 2011.
Today is the third anniversary of Green Patent Blog (GPB), and I’m using this milestone as a convenient excuse to switch from the staid, default WordPress template to a new, more modern format. Still green though.
[By the way, sorry for the “posts” earlier today regarding the disclaimer and the e-alerts. Those were hiccups in the transition to the new format. If you are already a subscriber, you do not need to sign up again.]
I’ve tremendously enjoyed blogging in this space over the last three years, and I look forward to many more years of it. Many thanks to all of the people who read, subscribe and otherwise support the blog.
In reflecting on the last three years, I believe I’ve remained true to the mission statement that I expressed in my introductory post on December 3, 2007:
Welcome to Green Patent Blog, a site dedicated to discussion and analysis of intellectual property issues in clean technology. Although there a lot of blogs about intellectual property law and several about clean technology, I haven’t seen a site that places the ideas of this important industry into the context of the law that protects them. This blog seeks to do that by reporting on significant court decisions, highlighting interesting newly-issued patents and discussing other legal and technological developments in clean technology. I hope this site will provide some insight to those who develop and market clean tech and seek to protect the intellectual property rights in their technology. In Green Patent Blog I hope to contribute a little bit to protecting the ideas that are preserving the planet.
My first substantive post, Infringing Icon, was about the appeals court decision affirming that the Toyota Prius infringed a patent held by hybrid technology startup Paice.
What I didn’t know at the time was that this story would go on for years and take many twists and turns, generating posts about Toyota’s appeal to the U.S. Supreme Court, a U.S. International Trade Commission investigation that would threaten to block importation of Toyota vehicles into the U.S., and finally, a settlement with Toyota taking a license to Paice’s patents.
That was just one of the many stories I’ve followed in this space, and I expect GPB will continue to bring you green patent news and information for many years to come.
Of the 12 smart grid projects to win an award as part of the GE Ecomagination Challenge, one in particular caught my attention.
That is GE’s collaboration with Columbia University’s School for Engineering and Applied Science, FedEx Express and Con Edison to take Columbia’s patented Adaptive Stochastic Controller technology for a test run in Manhattan.
Perhaps it’s that Columbia is the only university of the 12 grant winners or a recent conversation I had with a friend about the massive scale of electric vehicle charging infrastructure that is likely to be necessary in the near future, but the blurb about the collaboration in this Sustainable Business article piqued my interest.
The technology, developed by Columbia Engineering’s Roger Anderson and his Smart Grid team, will manage load and power delivery and provide a real time data link between electric vehicle charging stations and Con Edison’s electric distribution management system.
GE will provide $1.1 million in funding as well as expertise and support for the project, which will focus on recharging a fleet of electric delivery vehicles (EDVs) that FedEx will deploy next year.
The stochastic controller technology is described and claimed in Columbia’s U.S. Patent No. 7,395,252 (‘252 Patent), which issued in July 2008. The ‘252 Patent’s decidedly non-energy related title is “Innervated stochastic controller for real time business decision-making support”.
The ‘252 Patent is directed to a controller that optimizes decision-making by training itself using power grid simulations then analyzing grid events and generating planned responses to the events.
The ‘252 Patent describes a Learning System (1400) that includes a reinforcement-learning controller (1002), optional learning matrices (1004) used within a “critic” function (1003) and a model (1006) of a power grid (1600).
The Learning System uses simulation models of the subject power grids to link and analyze specific threat events on the power grid (1600) and generate planned and prioritized responses, while automatically and continuously “learning” during simulation runs.
The Learning System may be configured as a computer-based simulation and training tool that learns “best response scenarios” to these specific events on the grid and can train power control system operators to respond to such events or can act on its own and take automatic control actions.
The Columbia press release explains the technology as follows:
[The] patented Adaptive Stochastic Controller [will] “learn” the energy demands of each truck and coordinate its recharging with Con Edison to make sure the EDVs deliver “on time, every time” at the lowest possible cost while fitting smoothly into Manhattan’s electric-distribution grid. The controller will send commands, such as when to optimally start and stop the charging of both the EDVs and the recharge stations at the delivery depot. The stations will also record and transmit updated information to our complementary Columbia Engineering controller at Con Edison’s Manhattan Electric Control Center to ensure proper grid integration. The Columbia Engineering controller will be able to respond to electric-load-management directives from Con Edison to decrease or increase the current draw from the on-board vehicle inverters and batteries to assure both the stability of the electric grid in the area and the recharge capability of the FedEx Express EDVs.
Some of the other smart grid award winners are OPOWER (energy management systems and software), ClimateWell (efficient appliances), FMC-Tech (intelligent sensor technologies), Soladigm (building efficiency), SustainX (compressed air energy storage), and SynapSense (data center services).