Archive for June, 2011

Rotary Clubbed: Siemens Hit with Water Filter Patent Suit

June 28th, 2011


Veolia Water Solutions & Technologies Support (VWS), a subsidiary of Veolia Water, is a French water and wastewater treatment company.   VWS owns U.S. Patent No. 7,507,805 (‘805 Patent), which relates to rotary disk filter technology.

VWS recently sued Siemens Industry (Siemens) for patent infringement in the Eastern District of North Carolina, accusing its German competitor of infringing the ‘805 Patent.

According to the complaint (Veolia-Complaint), Siemens’ Forty-X disk filter product infringes claims 1 and 16 of the ‘805 Patent.

The ‘805 Patent is directed to a rotary disk filter having a modular construction.  The rotary disk filter (1) has a rotating drum (2) that includes a plurality of disk-shaped filter members (3). 

The lateral faces of the filter members support a filter cloth (4), which traps particles in the liquid being filtered.

A filter support (11) extends radially outwards from the center of the drum and forms filter segments or modules (13).  The modules, as shown in Figure 4 below, have an intermediate support portion (15) and two outer support portions (16) extending from the intermediate support portion.

Two inner support portions (17) extend from the other end of the intermediate support portion (15), which has a framework construction (18) with hollow spaces (19).  Openings (20) in the inner support portions (17) allow the liquid to be filtered to pass from the interior of the drum (2).

According to the ‘805 Patent, the modular filter design and support structure provide a lighter filter with higher filtering capacity at a lower manufacturing cost.

The rotary disk filters at issue in this case are used for a variety of applications including tertiary filtration, water reuse, and process water filtration.

Nautricity’s CoRMaT Spins This Way and That

June 26th, 2011

Nautricity is a UK company that develops tidal energy technology.  Its CoRMaT tidal turbine, a 500kw device in its largest form, will be installed and tested in the Thames River alongside a former Royal Navy sloop called the HQS Wellington (see Clean Technica article).

The CoRMaT turbine is the subject of at least one international patent application, WO 2007/017629, and U.S. Application Publication No. 2008/0226450 (‘450 Application).

According to Nautricity’s web site, the CoRMaT turbine is the result of R&D conducted at the University of Strathclyde, which is the owner of record of the two patent applications.

The ‘450 Application is directed to a turbine (5) having two adjacent sets of coaxially mounted blades.  The first set (10) is coupled with a first shaft (20); the second set (15) is coupled with a second shaft (25).

The first shaft (20) is directly coupled with a rotor (45) of a generator (50), and the second shaft (25) is directly coupled with a rotatable stator (55).

The first set (10) of blades (65) contra-rotates relative to the second set (15) of blades (66).  This causes contra-rotation of the respective shafts (20, 25) and of the rotor (45) and the stator (55) of the generator (50).

According to the ‘450 Application, generator performance can be optimized by arranging the blade sets (10, 15) so one set cannot be completely eclipsed by the other at any point in the power generation cycle.

Nautricity’s web site describes the turbine technology as:

two closely spaced contra rotating rotors, driving a contra rotating electrical generator.  The first rotor has three blades rotating in a clockwise direction while the second rotor, located directly behind the first, has four blades rotating in an anti-clockwise direction.

According to Nautricity, the contra rotating rotor arrangement doubles the relative rotational speed compared to a single rotor turbine and splits the torque equally between the two rotors.

The torque-splitting eliminates reactive torque acting on the support structure, thereby allowing the turbine to be moored rather than rigidly attached to the seabed. 

Thus, the CoRMaT can be deployed in a variety of locations at depths varying from eight meters to 500 meters.

According to Nautricity’s press release, the trial is the first stage in a large project to site hundreds of tidal turbines along the river and generate enough electricity to power 35,000 homes.

White Light / White Heat: Osram, LG and Samsung Kick Off Global LED Patent War

June 23rd, 2011


In a major new global LED patent war, Osram has sued Samsung and LG in several forums around the world, including the U.S. International Trade Commission, Delaware and California federal courts, Germany, and (against LG only) in Japan and China.

According to the California complaint against LG (Osram-LG-Complaint) Osram’s conversion technologies, which enable production of white LEDs using blue-emitting semiconductors, are the subject of the asserted patents, and a host of LG flat screen televisions contain infringing LEDs.

The patents-in-suit number up to a dozen and include at least three patent families. 

The first family of patents is entitled “Light-radiating semiconductor component with a luminescence conversion element” and relates to technologies for converting blue light to white light.  This family includes U.S. Patents Nos. 6,812,500, 7,078,732, 7,126,162, 7,151,283, 7,345,317 and 7,629,621 (Luminescence Patents).

The Luminescence Patents are directed to an LED component comprising a semiconductor body (1) fixed onto a first electrical terminal (2). 

The free surfaces of the semiconductor body (1) and parts of first and second electrical terminals (2, 3) are directly enclosed by a luminescence conversion encapsulation (5) made of an inorganic luminescent material. 

For white-light-emitting components, the Luminiscence Patents specify Y3Al5O12:Ce3+ as the luminescent material.

In another embodiment, illustrated in Figure 2, the semiconductor body (1) and parts of the electrical terminals (2, 3) are enclosed by a transparent encapsulation (15) that does not effect any wavelength change.  A luminescence conversion layer (4) is applied to the transparent encapsulation (15).

In this case the luminescence conversion layer (4) is treated with a luminescent material (6).  A lens (29) reduces total reflection of the radiation within the luminescence conversion layer (4).

According to the Luminescence Patents, these structures provide homogeneous, polychromatic white light and simplify mass production by making the components more easily reproducible.

Another patent family includes U.S. Patents Nos. 6,459,130, 6,927,469 and 7,199,454, entitled “Optoelectronic semiconductor component” and U.S. Patent No. 6,975,011, entitled “Optoelectronic semiconductor component having multiple external connections.” (Optoelectronic Patents). 

These patents are directed to an LED component with a semiconductor chip (1) secured on a chip carrier part (2), a parallelepipedal encapsulation (3), a connection part (10), and external connections (11, 12).

A trough (4) is formed in the region of the chip carrier part (3), which holds the semconductor chip (1).  The inner surface (5) of the trough (4) has a truncated cone shape and forms a reflector for the radiation emitted by the semiconductor chip (1). 

According to the Optoelectronic Patents, this configuration provides increased radiant intensity.

A third family of patents is entitled “Optical semiconductor device with multiple quantum well structure” and includes U.S. Patents No. 6,849,881 and 7,106,090, directed to a superlattice LED structure formed of layers of nitride semconductor material.

Osram also has asserted U.S. Patent No. 7,271,425, entitled “Optoelectronic component,” and U.S. Patent No. 7,427,806, entitled “Semiconductor component emitting and/or receiving electromagnetic radiation, and housing base for such a component.”

Samsung is fighting back, though, with a patent infringement suit of its own against Osram in a district court in Seoul, Korea.

With the growth and promise of this sector, LED patent litigation has become white hot, and the lawsuits just keep coming (see posts here and here).  Osram’s California complaint sums it up well:

Business in this area is growing rapidly and has taken on major strategic importance.

Two More Eco-marks Dinged for Descriptiveness

June 21st, 2011


I’ve written before about the increasingly common challenge in obtaining U.S. registrations for eco-marks, i.e., the proscription against registering “merely descriptive” marks (see, e.g., my post about the HYBRID GREEN mark here). 

Often the eco-marks include the term “GREEN,” which has become hopelessly descriptive of environmentally friendly aspects of products, services or practices.  But other terms are not immune from descriptiveness problems.

Kinetic Energy Corporation, a wholly-owned subsidiary of New Energy Technologies (NET), recently saw two trademark applications derailed by the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (Board). 

The doomed marks were MOTIONPOWER for, among other things, electricity generators and certain services including converting waste energy into electricity (77707733_App), and SOLARWINDOW for photovoltaic cells and modules as well as films and substrates for PV cells (77738793_App).

NET markets technologies for harnessing kinetic energy from moving vehicles and converting that energy into electricity under the MOTIONPOWER brand

The Board nixed the MOTIONPOWER trademark application based on the meanings of the individual words, their meaning in combination, and the fact that the applicant uses kinetic energy, which is energy from motion (Board-Decision-77707733):

Based on the meanings of the individual words of applicant’s applied-for mark, “MOTION” and “POWER,” as well as the Internet evidence, we find that the combination MOTIONPOWER is merely descriptive of the applicant’s goods and services for use in generating power from motion. The individual merely descriptive terms retain their descriptive character when combined to form the composite MOTIONPOWER. The evidence shows that kinetic energy, the type of energy involved in applicant’s goods and services, is energy associated with motion.

The Board also noted that the construction of the mark MOTIONPOWER is similar to terms such as “solar power” and “wind power,” which describe generation of power from the sun and the wind, respectively, so consumers are likely to perceive the mark as merely descriptive of generating power from motion.

In a separate decision using similar reasoning, the Board rejected the SOLARWINDOW mark because of the definitions of the individual words and the descriptive use of the combined term in the industry (Board-Decision-77738793):

Not only does each element have descriptive significance as shown by the dictionary definitions, but the record establishes that the combination “SOLAR WINDOW” is used in the solar energy industry to describe solar energy-generating and/or solar energy-converting technology used in connection with windows.

The Board found that consumers would find the mark descriptive and noted that applicant’s use of the term on its website is descriptive of NET’s SOLARWINDOW glass and film products:

it is clear that SOLARWINDOW would immediately inform these consumers that applicant’s goods are used to convert existing windows or create windows that are capable of collecting and generating solar energy.  Notably, applicant uses the term “solar window” on its website in a descriptive manner when it states that solar cells and films are used “to produce a transparent solar window.”

So NET will not be able to register the MOTIONPOWER or SOLARWINDOW marks on the Principal Register at this time.  The company may be able to do so down the road after using the marks for a while and can get some protection via Supplemental Registrations in the interim.

Guest Post: Gaston Kroub on the UKIPO “Green Channel” Initiative Two Years In (Part II)

June 17th, 2011

In a previous post, this author provided background on the UKIPO’s “Green Channel” for expedited examination of patent applications drawn to environmentally-friendly technologies. 

As noted in that post, the program’s two-year anniversary recently past.  To mark the occasion, and in recognition of the 100th green patent granted “under the Green Channel acceleration scheme,” the UKIPO recently issued a press release highlighting the program’s success. 

In addition to noting that the 100th green patent had issued, the press release notes that since the initiative was launched in May 2009, the UKIPO had received over 450 green patent applications.  The average patent in the program was granted just eight months after the request for acceleration was entered, a measurable improvement from the UKIPO’s 36 month pendency for normal applications.

In prior public statements, the UKIPO has indicated that it is pleased with the positive reception the “Green Channel” initiative has obtained from both users and the media.

One of the stated goals of the program is to “spread the message that patents can be of assistance in dealing with the challenges of climate change,” a message reiterated in the UKIPO’s recent press release.

Because the UK government has taken a public and leading stance worldwide with respect to climate change issues, it has an interest in encouraging other patent offices to adopt similar programs – and it has made efforts in that direction.  The UKIPO’s lobbying efforts have resulted in either expressions of interest or actual implementation of similar schemes from a number of other countries, including China, Brazil, Australia, Japan, and South Korea. 

And in order to make information about applications accepted into the program easily available to the public, the UKIPO created a publically-accessible “Green Channel” database.  This searchable database allows users to view published applications and granted patents which have been accelerated under the “Green Channel”. 

Ambitiously, the UKIPO hopes that future innovation of “green” technologies will be spurred by allowing businesses and inventors “easy access to green ideas and inventions” and claims that “green patents provide innovative businesses to develop green products that can be brought quickly into the marketplace” – particularly if those green patents are “fast tracked.” 

In the interest of obtaining some additional perspective on the usage of the “Green Channel” by applicants to date, the database was accessed by this author.  As noted in the recent press release the “Green Channel” is being utilized, and search of the database shows that it is being used in a variety of technology areas, and by geographically diverse applicants. 

A search of the “Green Channel” Database on May 17, 2011 yielded 208 hits, or 208 published applications or issued patents that have been processed through the UKIPO’s “Green Channel.”  So far in 2011, there have been 7 additions to the database, or about one entry a month. 

Most of the utilization of the “Green Channel” appears to come from the EU, with Great Britain providing the vast majority of applications.  As of this writing, the United States was the owner’s country of residence for about 10% of the applications listed in the database, with a few frequent users like Protean Holdings, iGo Inc., and others.  

In fact, Protean received the 100th patent granted under the “Green Channel,” that is directed to a “regenerative braking system for electric and hybrid vehicles.”  Other countries represented in the database are Singapore, Taiwan, and Mauritius.  

As noted above, the range of technologies represented in the database is diverse, ranging from compostable toilets to headlamps to floating recycling plants.  These data points indicate that the UKIPO’s “Green Channel” is being used as a viable alternative for patent applicants seeking a forum for expedited examination on the basis of environmental benefit. 

In this author’s opinion, there is little doubt that the UKIPO’s “Green Channel” initiative is off to a good start.  Compared to the well-chronicled fits and starts of the USPTO’s Green Technology Pilot Program, the “Green Channel” appears to be a smooth-running program operating as intended, with relatively low barriers of entry to interested participants.  

Protean Holdings’ Intellectual Property Manager, one example of an interested participant, is quoted in the most recent press release speaking very favorably of the “Green Channel,” mentioning the importance to his “young company” in getting its green patents issued quickly (“as soon as 10 months after filing”) so that Protean can “attract new investment and prospective customers.”    

While not every prospective patentee will be assured of a similar outcome, sophisticated patent counsel are well-urged to consider the “Green Channel” as a resource for mission-critical and time-sensitive patent applications, irrespective of whether the applicant is a sole inventor, a start-up, or a multinational corporation. 

Hopefully, utilization of the program will increase, and applicants will begin to leverage the “Green Channel”, in conjunction with patent cooperation agreements, e.g. the Patent Prosecution Highway, to get “green” patents issued faster and thereby spur additional innovation of environmentally-beneficial technologies.

Gaston Kroub is a partner in the New York office of Locke Lord Bissell & Liddell LLP.  Gaston serves as the co-chair of the Greentech Committee of the NYSBA’s IP Section and has been accredited as a LEED Green Associate.  Gaston is a registered patent attorney whose practice focuses on intellectual property litigation and counseling.

Guest Post: Gaston Kroub on the UKIPO “Green Channel” Initiative Two Years In (Part I)

June 14th, 2011


As readers of this blog are aware, there are a number of patent offices worldwide that currently offer expedited examination regimes for patent applications directed to inventions that promise to deliver environmental benefits. 

As chronicled by this blog, the United Kingdom Intellectual Property Office (UKIPO) has had such a program in place since May 2009. 

So how has the program performed as it approaches two years in force? This two-part post will attempt to answer this question, after providing some background about the UKIPO’s program.

The UKIPO’s “Green Channel” is a no-fee added service offered by the UKIPO for accelerated prosecution of patent applications directed to inventions with alleged environmental benefits.  Any pending application is eligible for the program, assuming the applicant complies with the minimal requirements for inclusion. 

Depending on the prosecution aspects the applicant chooses to accelerate, the UKIPO’s “Green Channel” could result in issued patents in as little as nine months.  The regular pathway to an issued patent is estimated to average between two and three years in the UKIPO. 

The UKIPO does not guarantee, of course, if and when applications in the “Green Channel” will issue, but rather affords applicants the option of accelerating some or all of the prosecution process for “green” inventions (see Green Channel FAQ here).

As set forth below, the actual requirements for inclusion in the program are straightforward and designed to encourage participation.

There is no separate petition process for inclusion in the Green Channel, in contrast to the USPTO’s Green Technology Pilot Program.  Applicants do not even have to file a form to have their pending applications considered under the Green Channel; a written request pointing out which aspects of the prosecution process the applicant wishes to accelerate and how the invention has an environmental benefit suffices.

The applicant can choose to accelerate any or all of the following prosecution process aspects: Search, Combined Search and Examination, Publication, and/or Examination.

With respect to the “environmental benefit” prong of the written request, the Green Channel as set up by the UKIPO recognizes that environmental benefits can be found in inventions of all types, and accordingly does not limit participation on the basis of technology areas or IPC classification.  Nor does an applicant need to demonstrate that the invention meets any specific environmental standard. 

Having an application drawn to an invention in an established “green” technology area, will, however, make the showing of environmental benefit in the applicant’s written request more straightforward.  The UKIPO has indicated that in such technology areas, a “simple statement is likely to be sufficient.”  

For inventions with less obvious environmental benefits,  “a more detailed explanation is likely to be necessary to explain how the invention has an environmental benefit”, and the applicant’s written request should endeavor to meet that standard.  While the UKIPO “will not conduct any detailed investigation into these assertions”, it reserves the right to “refuse requests if they are clearly unfounded.” 

In all cases, participation is by applicant request, however, so even applications directed to inventions in established green technology areas, e.g. solar panels, are not automatically moved into the Green Channel by the UKIPO. 

Gaston Kroub is a partner in the New York office of Locke Lord Bissell & Liddell LLP.  Gaston serves as the co-chair of the Greentech Committee of the NYSBA’s IP Section and has been accredited as a LEED Green Associate.  Gaston is a registered patent attorney whose practice focuses on intellectual property litigation and counseling.

AWEA Report Part II: Winergy’s HYBRIDDRIVE Gearbox and Generator Combo

June 11th, 2011


Winergy is a German company long known for its quality and innovation in gearboxes and drive systems for wind turbines. 

At the American Wind Energy Association (AWEA) Windpower Conference and Expo last month, Winergy introduced its new 3 MW HYBRIDDRIVE technology, which combines a 2-stage gearbox and a permanent magnet generator into one product (Winergy press release).

According to Winergy’s press release, the new design provides the advantages of reduced size and weight of the nacelle and drive train:

The direct linkage of the two stage gearbox and the permanent-magnet driven generator shortens the drive train by approximately 35%.  This design allows for a significant reduction of the nacelle size and minimization of the overall weight.

Winergy found the inspiration for its new gearbox and generator combo from work performed by Global Energy Concepts LLC (GEC) in a DOE funded study for the WindPACT program back in 2000 – 2002.

The GEC drivetrain utilized a 2-stage gearbox with a CARB bearing which allows the second stage to free float to maintain alignment between the gear mesh of the first and second stages of helical gears.  This has the benefit of being able to absorb most deflections and off axis loading conditions encountered by the stochastic nature of the wind.

Although it also utilizes a 2-stage gearbox, instead of a CARB bearing, the Winergy HYBRIDDRIVE has a different internal bearing arrangment.  Winergy’s web site doesn’t provide details, but one of the company’s representatives at the AWEA Conference indicated that they have a double row tapered roller bearing arrangement and bushings with elastomeric dampers as well as a torque tube to accommodate loading and deflections.

Two-stage gearboxes are not new for Winergy.  The company also owns U.S. Patent No. 6,459,165 (‘165 Patent), which is entitled “Drive train for a windmill” and relates to drive train architecture that utilizes a double row helical set of gearing.  It is possible that this prior IP has contributed to the design of the HYBRIDDRIVE system.

The ‘165 Patent is directed to a transmission arrangement for a wind turbine including a rotor (1) with several blades (3) secured in a hub (2).  The rotor (1) is connected to a generator (6) via a two-stage planetary transmission comprising an input stage (4) and an output stage (5). 

The hub (2) is directly connected to the base (10) of the input stage (4) of the two-stage planetary transmission, which is entirely contained in the hub (2).  According to the ‘165 Patent, this arrangement provides a more compact transmission suitable for higher outputs:

The object of the present invention is a wind-power plant that is more compact and accordingly appropriate for higher outputs, of 2.5-5 MW, is only slightly heavier, and is less complicated.  Directly connecting the hub to the input stage of the two-stage planetary transmission renders the transmission more compact.

Winergy also owns U.S. Patent Application Publication No. 2010/0160104 (‘104 Application), entitled “Epicyclic gearbox for a wind power installation” and directed to a forced lubrication system on a two stage drivetrain. 

Lubrication is an obvious necessity of rotating machinery, but a forced lubrication system saves the cost of a separate external system with pumps and other associated components, and it can also improve overall drivetrain efficiency.  The ‘104 Application discusses one way in which a forced lubrication system can be made to work for a two stage gearbox with independent channels for each stage

It remains to be seen if the new Winergy design will prove to be as good as the free floating CARB bearing design in terms of reliability and the ability to absorb loads.  Winergy advertised the HYBRIDDRIVE at 25 tons, which is very light if that metric actually includes the generator weight.  However, it was unclear from the self-contained drivetrain on display at the Expo whether the generator was integrated in what was shown.

One caveat to a lighter weight gearbox is that they need to be able to prevent deflections of the gearbox housing, which can lead to significant reliability issues.  Scrimping on housing mass to save weight might contribute to deflection problems and misalignments of their gears. 

We’ll have to wait and see if this is a long term issue.  If the 25 tons is just the gearbox without the generator, then this isn’t terribly light at all and the extra mass there may serve to inhibit some of those deflections.

The deflection issues are also prevalent because wind turbine OEMs are chasing higher capacity factor ratings with the increased rotor diameters, and the loads on the drivetrain and tower are increasing as a result.  The proof will be in the pudding for Winergy as they test and deploy this solution for Fuhrländer AG for their new 3MW, 120m rotor turbine for IEC Class IIa.

With the reliability of the direct drive systems yet to be proven, it’s great to see innovation on gearbox driven designs which take advantage of 30+ years of development and testing to enable more reliable solutions.  After all, as Winergy says, “Reliability is our profession.”

Totaro & Associates is an innovation strategy and patent search consulting firm.  To find out more please visit

Primus Energy Storage Tech Goes with the Flow

June 8th, 2011


Primus Power is a Hayward, California, startup that makes flow batteries for grid-scale energy storage.  A flow battery is a type of rechargeable battery that works by the flow of electrolytes through an electrochemical cell, which converts the chemical energy to electricity. 

Unlike typical batteries, in which the active chemical species are stored inside the battery, the dissolution of active species in the electrolyte of a flow battery permits external storage of reactants.  For this reason, flow batteries are not limited in the amount of active material that can be used and have the ability to scale up power and energy density.

Primus owns a family of at least three pending patent applications relating to its flow battery technology, including U.S. Patent Applications Publication Nos. 2009/0239131 (‘131 Application), 2010/0021805 (‘805 Application) and 2011/0070468 (‘468 Application). 

The ‘131 and ‘468 Applications are entitled “Electrochemical energy cell system,” and are directed to energy generation systems including a cell stack assembly (12) made up of a plurality of cells (13).  Each cell (13) includes a positive porous electrode and a negative metal electrode.  

Pressurized halogen reactant enters the system through feed pipe (15) and flows through a metering valve (17) to mixing venturi (18).  Circulation pump (16) circulates the electrolyte from reservoir (19) through the mixing venturi (18), to the positive electrodes in the stack assembly (12) and then back to the reservoir (19).

According to the  ‘131 and ‘468 Applications, the metal electrode includes zinc, the halogen includes chlorine, the electrolyte includes an aqueous zinc-chloride electrolyte, and the halogen reactant includes a chlorine reactant (though this Greentech Media article says the Primus technology is based on a zinc-bromine system, not chlorine).

The ‘805 Application adds the concept of maintaining the system’s inner pressure above the liquefication pressure of the halogen reactant.

Primus’s battery flow technology has received some high level attention and funding, including $14 million from the U.S. Department of Energy and $11 million in venture capital, according to the Greentech Media piece.

Fiji Defeats “Unreasonable” Consumer in Green Drop Bottle Battle

June 5th, 2011


In a previous post I wrote about a consumer class action against SC Johnson, accusing the producer of Windex of misleading consumers by using a GREENLIST label that allegedly implies objective third party certification of environmentally friendly ingredients in its cleaning products.

Ayana Hill recently filed a similar proposed class action suit against the Fiji Water Company (Fiji) in which she alleged that the “Green Drop” design (shown below) on Fiji’s water bottles misrepresents the product as environmentally superior to other bottled water and connotes approval by independent, third-party organizations.

Hill also cited Fiji’s “Every Drop is Green” marketing slogan and its web site as evidence of deception.

Hill supported her allegations by referencing the U.S. Federal Trade Commission’s (FTC) “Green Guides,” which provide general principles for advertising environmentally friendly aspects of products and services and lay out specific examples of impermissible advertising claims.

The trial court dismissed Hill’s complaint, and last month the First District Court of Appeals of California affirmed the decision of the lower court.

The key to the appellate court decision was the “reasonable consumer” standard.  The FTC Act and California state consumer protection laws require a plaintiff to show potential deception of “a consumer acting reasonably in the circumstances” and “the ordinary consumer within the larger population,” respectively.

What are the characteristics of a “reasonable” or “ordinary” consumer?  Well, the appeals court explained what they are not: 

…the standard is not a least sophisticated consumer, unless the advertising is specifically targeted to such a consumer 

Nor do we test the impact on the unwary consumer…

…in these days of inevitable and readily available Internet criticism and suspicion of virtually any corporate enterprise, a reasonable consumer also does not include one who is overly suspicious.

The appeals court framed the central question in the case (and answered it) this way:

Does the green drop on Fiji water bottles convey to a reasonable consumer in the circumstances that the product is endorsed for environmental superiority by a third party organization?  No.

According to the court, nothing about the green drop symbol implies any association with or endorsement by a third party organization:

[The green drop symbol] bears no name or recognized logo of any group, much less a third party organization, no trademark symbol, and no other indication that it is anything but a symbol of Fiji water.

The appellate court found the green drop design to be much less suggestive of a seal of an environmental organization than a globe icon used in an FTC Green Guides example and a logical symbol for branding water. 

The appeals court also contrasted the green drop with SC Johnson’s GREENLIST label, which the court noted made express representations of environmental superiority and suggested an independent source by identifying the name as a rating system (SC Johnson’s motion to dismiss was denied last year).

Finally, the overall context mitigates against implication of third party endorsement, the court reasoned, because the green drop appears next to the web site name, which associates the symbol with Fiji, not a third party organization.

For these reasons, the court held the green drop symbol would not mislead a reasonable consumer about third party endorsement or environmental benefits of Fiji’s botted water:

we hold – and it is all we hold – that no reasonable consumer would be misled to think that the green drop represents a third part organization’s endorsement or that Fiji water is environmentally superior to that of the competition.

This is an interesting decision for a number of reasons.  What immediately struck me was the exclusion of the “overly suspicious” from the definition of the ordinary consumer. 

Isn’t the large and growing segment of green-minded consumers that Fiji is targeting with the green advertising claims naturally very discerning and more suspicious of claims of environmental benefits than other consumers?  There’s even a name for this market segment – LOHAS consumers.

The appeals court implied that a particular type of consumer could be used as the standard when it said “the standard is not a least sophisticated consumer, unless the advertising is specifically targeted to such a consumer.”  Much green branding, Fiji’s included, arguably is targeted to the LOHAS consumer. 

Perhaps when analyzing claims of greenwashing in advertising directed at LOHAS, or green-minded, consumers the courts should use an “ordinary green consumer” standard that takes into account both the green sophistication and green skepticism of this consumer group.

After all, advertisers promoting green brands and communicating green marketing messages are trying to appeal to the environmental sophistication of these consumers.  

Shouldn’t the truth of that advertising be measured against the same sophisticated standard of the consumers most inclined to evaluate it as part of their purchasing decisions?

AWEA Report Part I: WINDSPOT by Sonkyo and SYNERDRIVE by Kenersys

June 1st, 2011


I attended the American Wind Energy Association’s 2011 Conference & Expo in Anaheim last week where I was able to see a lot of technology for turbines both large and small.

On the small side, at 3.5 and 7.5 kW, was Sonkyo Energy’s WINDSPOT turbine

The WINDSPOT features a proprietary blade pitch control assembly, and the Spanish company owns International Application Publication No. WO 2010/034861 (‘861 Application) directed to this technology.

Unfortunately, I was unable to find a corresponding English language patent application, so I was limited to the Abstract of the ‘861 Application and my conversation with the folks at Sonkyo’s booth to explain the technology.

The ‘861 Application describes a rotating headpiece including a shaft connected to a cross-piece (14), which is connected via intermediate mechanisms (5, 8-11) to the end supports of (7) of the blades (6). 


When the cylinder shaft moves the cross-piece (14) the assembly varies the pitch of the blades (6).  Counterweights (15) can also vary the blade pitch of the rotor head. 

According to Sonkyo’s web site, its variable pitch technology “is a passive mechanism that uses the centrifugal force produced by the turning of the wind turbine to change the attack angle of the blades, which adjust themselves in a movement synchronized by the strength of the wind.”

At the utility scale, Muenster, Germany-based Kenersys’s 2.0 and 2.5 MW turbines employ the company’s SYNERDRIVE technology, which includes electrically excited synchronous generators.

Kenersys owns several international patent applications, including International Application Publication No. WO 2010/034760 (‘760 Application), entitled “Excitation machine for a synchronous generator.”  Again, there do not appear to be any English-language counterparts for this application, so we’re limited to the Abstract.

The ‘760 Application is directed to an excitation machine for a synchronous generator (13, 14) wherein the synchronous generator comprises at least two excitation modules (10, 9; 8, 9).  The first module (10, 9) is self-excited, and the second module (8, 9) is externally-excited.

According to the Abstract of the ‘760 Application, the invention makes it possible to generate high outputs and provide cold-starting and operating capabilities at low rotational speeds or without connection to the utility grid.