Archive for October, 2013

Market Report: New Study Finds Green Patents and Green Innovation Cannot Live on R&D Alone

October 28th, 2013

A new report published recently in the journal PLOS ONE shows a steep rise in rates of renewable energy patenting over the last decade.  Of course, that in itself is not novel or interesting.

What is new and interesting is the study’s key findings about the determinants of such patenting activity.

Conducted by Luis Bettencourt of the Santa Fe Institute, Jessika Trancik of MIT and Jasleen Kaur of Indiana University, the study is entitled “Determinants of the Pace of Global Innovation in Energy Technologies” (see MIT’s piece about the study here).

The authors used patenting activity as a proxy for innovation and analyzed trends in R&D funding in an attempt to figure out the drivers of energy innovation.

The authors first built a global database of about 73,000 energy patents covering the period of 1970-2009, a database they call “unique in its temporal and geographical scope.”

While the patent data showed rapid growth over the last decade particularly in renewable energy patents such as wind and solar, with annual growth rates of 19% and 13%, respectively, there were not commensurate rises in public or private R&D during this period. 

Thus, the authors posit, direct R&D funding cannot be the main driver of patent growth:

These trends contradict a picture of patenting in energy technologies that is primarily driven by inputs in public R&D investment.  They point to the relevance of opportunities resulting from the growth of markets, which drives an increase in both explicit private R&D funding and other forms of investment that generate innovative activity.

So the authors developed a model to explain the non-linear response.  Their model shows that as markets for particular technologies materialize, investments in continued innovation are increasingly driven by market growth, sometimes creating a cycle of rapid innovation:

[T]he model demonstrates that a virtuous innovation cycle formed by R&D support and market growth can account for the sharp increase in energy patenting observed in recent years.

More particularly, it is the interplay and synergy between the market and traditional public support that is critical:

We find that both market-driven investment and publicly-funded R&D act as base multipliers for each other in driving technological development at the global level.

The report provides some consolation for those of us who would like to see a coherent climate change policy to promote green technology innovation.  The authors conclude that green innovation has been progressing and may continue to do so even in the absence of coordinated international climate change policies:

The suggestion of the dependence of global patenting trends on the aggregate scale of research funding and markets, rather than the details of policy instruments and other incentives, is important because of the diversity of public policies at finer geographical scales and limited ability to coordinate these policies across national borders.  Similarly, the apparent persistence of knowledge over long time periods is an important result given the variability (and lack of continuity) in policies over time.


No Fahrvergnügen for Kruse as Volkswagen Escapes Infringement of Diesel Engine Patents

October 24th, 2013

In a previous post, I discussed the infringement suit in which Kruse Technology Partnership (“Kruse”) accused several automakers, including Daimler, Mercedes-Benz USA, Volkswagen, Ford and Chrysler of infringing U.S. Patent Nos. 5,265,562 (“’562 patent”), 6,058,904 (“’904 patent”) and 6,405,704 (“’704 patent”) relating to higher efficiency and lower emission diesel engines.

The asserted patents are entitled “Internal combustion engine with limited temperature cycle” and directed to Kruse’s “Limited Temperature Cycle” technology, which limits peak combustion temperatures in direct injection gas and diesel engines.

The Court of Appeals for the Federal Circuit recently affirmed a district court grant of summary judgment of non-infringement of the ‘562 and ‘904 Patents in favor of Volkswagen.

According to the ‘562 and ‘904 Patents, fuel is injected in first and second fractions at different points in the operating cycle of the engine, resulting in a combustion process having “a constant volume (isochoric) phase and a constant temperature (isothermal) phase.”

The asserted claims recite “the combustion as a result of the introduction of the second fraction is a substantially isothermal process,” which was construed by the district court to require that the average cylinder temperature “remains substantially constant from the beginning until the end of the combustion.”

On appeal Kruse first argued this interpretation was incorrect and unduly narrow, but the Federal Circuit disagreed and said the district court’s construction is the “only permissible reading” of the term:

The only permissible reading of the limitation “the combustion . . . is a substantially isothermal process,” is that it requires a substantially constant temperature for the entire second fraction combustion. . . . [T]he combustion . . . is a substantially isothermal process,” does not indicate that only a portion of the combustion is isothermal.

Kruse also contended that the district court erred in holding that isothermal combustion of 23% – 48% of the second fraction in the Volkswagen products was not an infringing equivalent element of the claimed “substantially isothermal process” limitation.  Specifically, Kruse argued that the difference in combustion is insubstantial and one of degree.

The Federal Circuit disagreed.  While some deparature from the entirety of the second fraction combustion might be permissible, the court held that a 23% – 48% duration cannot be equivalent to combustion over the full duration of the fraction:

While the claim limitation, as construed, by no means precludes some departure from the entirety of the second fraction combustion, we find no error in the district court’s conclusion that the claim term is not flexible enough to allow the 23% to 48% duration of the second fraction combustion.  Allowing such a percentage to be equivalent to combustion over the full duration is contrary to the meaning of the claim limitation and would render it meaningless.  Isothermal combustion for less than half of the second fraction combustion cannot logically be considered insubstantially different from combustion from beginning to end; and . . . no reasonable juror could find otherwise.


Green Off-Patent Report (Powered by CleanTech PatentEdge)

October 21st, 2013


Our Green Off-Patent Report provides highlights of selected green patents that have completed their 20-year terms and recently expired or will complete their terms and expire within the next week or so (assuming the patentee paid all requisite maintenance fees; U.S. patents require payment of fees 3.5, 7 .5, and 11.5 years after issuance to stay in force).

Many of the green technologies in use today are off-patent, i.e., the patents covering the technologies have run their 20-year term and expired. 

Knowing which technologies are off-patent is important because those technologies are in the public domain and can be exploited by anyone.  It’s also interesting because it provides a window into what was cutting edge technology twenty years ago.

The green off-patent searching is performed by Cleantech PatentEdge™.

U.S. Patent No. 5,569,997, entitled “Power supply for volatile memory devices and portable electrical appliance in vehicles” and directed to an electrical power circuit for volatile electronic memory of electrical equipment in a vehicle wherein a rechargeable battery, a primary power source, and a power branch line coupled to the volatile memory continuously provide power to the volatile memory independently of an ignition switch.  Filed October 4, 1993; issued October 29, 1996; expires October 29, 2013. 

U.S. Patent No. 5,562,565, entitled “Power transmission system in a hybrid vehicle” and directed to a power transmission system including an automatic gear shift device comprising a speed change gear unit having an input element connected to the intermediate shaft and an output element connected to driving wheels and engagement means for effecting a predetermined speed change in the speed change gear unit.  Filed October 14, 1993; issued October 8, 1996; expired October 14, 2013.

U.S. Patent No. 5,548,504, entitled “Power line linking apparatus for linking a power generator to a commercial power line” and directed to a line linking apparatus comprising a DC power generator for generating power by solar cells, a pair of DC/AC converters connected to the DC power generator, and a wiring for interconnecting output terminals of the pair of DC/AC converters and terminals of a commercial power line in a single-phase, three-wire mode.  The apparatus achieves load balance and protection for loss of one phase in linking with a single-phase three-wire distribution.  Filed October 4, 1993; issued August 20, 1996; expired October 4, 2013.

U.S. Patent No. 5,495,908, entitled “Electric car control system” and directed to a control system for an electric car comprising a high voltage apparatus including an inverter for outputting a driving output for driving a motor based on power supplied thereto from a battery, a low voltage apparatus, and connection devices for connecting the high and low voltage units in such a relationship that a signal path is connected between the units as electrically isolated therefrom.  Filed October 5, 1993; issued March 5, 1996; expired October 5, 2013.

U.S. Patent No. 5,415,673, entitled “Energy efficient filtration of syngas cooling and scrubbing water” and directed to a process for the partial oxidation of a liquid hydrocarbonaceous fuel to produce a stream of cooled and cleaned synthesis gas, reducing gas, or fuel gas substantially free from entrained particulate matter and slag.  Filed October 15, 1993; issued May 16, 1995; expired October 15, 2013.

Chrysler Clear as Court Holds ECODIESEL Mark Merely Descriptive

October 17th, 2013


I’ve written extensively (see, e.g., here and here) on the descriptiveness hurdles faced by owners of eco-marks containing terms such as “CLEAN”, “GREEN” and “ECO”, including this author and his blog service mark (see, e.g., here and here).

A recent decision by a federal court in Hawaii provides a window into the fate of a hopelessly merely descriptive mark – ECODIESEL for diesel fuel made from used oil.

Unitek Solvent Services (Unitek) is a Hawaii-based corporation that focuses on recycling, reclamation, and re-use of used oil.  When Unitek began looking into ways to convert used oil into reusable fuel, its president decided on the term ECODIESEL to brand its processed diesel fuel.

In late 2005, Unitek filed a federal trademark application for the ECODIESEL mark.  The application was registered on the Supplemental Register as U.S. Trademark Registration No. 3,166,981 for “diesel fuel” and fuel for motor vehicles, namely diesel.”

By contrast with the Principal Register, the Supplemental Register offers lesser protections but also has lower standards for registrability, including permitting registration of merely descriptive marks.

A mark that is merely descriptive of the goods or services it is being used to market or sell is not registrable on the Principal Register without demonstrating secondary meaning, i.e., that consumers have come to associate the mark with the source of the goods or services.

After Chrysler began marketing some of its vehicles with optional diesel engines under a stylized ECODIESEL design (see above), Unitek sued Chrysler in federal court in Hawaii and moved for a preliminary injunction.

In a recent decision, the court denied the motion and held that Unitek’s ECODIESEL mark is merely descriptive and has not acquired secondary meaning. 

The mark is descriptive, the court held, because it requires no mental leap to determine what goods the mark refers to and instead immediately conveys to the consumer those goods:

The Court holds that no mental leap is required in order to conclude that ECODIESEL is a reference to a diesel fuel product that is more ecological than normal diesel fuel.  Unitek concedes that one well-accepted meaning of “eco” is “environmental friendliness,” and does not argue that the term “diesel” in ECODIESEL is anything other than a generic reference to diesel fuel.  Combining the terms, no imagination is required to discern that this term references ecologically-conscious diesel…not even a mental hop is necessary to link ECODIESEL with Unitek’s fuel product…Thus, the ECODIESEL mark is descriptive.

On acquired distinctiveness, or secondary meaning, Unitek provided evidence that it sells all of the ECODIESEL fuel it produces.  The problem was that all the fuel is sold to just one customer, and that cannot constitute enough consumer recognition to demonstrate secondary meaning:

this uncontroverted evidence actually hurts Plaintiff’s case more than it helps because it is undisputed that Unitek sells all of its ECODIESEL fuel to a single customer, Grace Pacific.  This evidence weighs against a determination of secondary meaning because it illustrates the very limited number of customers who have actually ever purchased Unitek’s fuel product and who may have come to associate ECODIESEL with Unitek.  Although Grace Pacific may associate ECODIESEL with Unitek, this is insufficient to establish that a signficant segment of the relevant public would make the same association.

Absent secondary meaning, the ECODIESEL mark was merely descriptive and not entitled to protection.  The court, therefore, denied Unitek’s motion for a preliminary injunction.

Tesla Battery Pack Patents Reveal a Different Kind of Hybrid

October 14th, 2013


A family of Tesla patents and pending applications relating to a hybrid battery system has been generating a bit of buzz (see, e.g., Cleantechnica’s story here). 

The patent family includes U.S. Patent Nos. 8,190,320, 8,450, 974, 8,471,521 and 8,543,270 as well as U.S. Patent Application Publication Nos. 2013/0181511 (‘511 Application) and 2013/0187591 (‘591 Application), some of which are entitled “Electric vehicle extended range hybrid battery pack system” and others entitled “Efficient dual source battery pack system for an electric vehicle” (collectively, “Hybrid Battery Pack Patents”).

Some of the applications were filed back in 2010, and some of the patents issued in 2012.  The Cleantechnica piece refers only to the ‘511 and ‘591 Applications, which published in July, because these applications apparently were cited in a recent report by Global Equities Research.

The Hybrid Battery Pack Patents are directed to methods of extending an electric vehicle’s driving range through a discharge cycle (201) using energy paths (203, 204) flowing from two battery packs, one being a metal-air battery pack (101) and the other being a non-metal-air battery pack (103), presumably a lithium ion battery.

Controller (107) controls the flow of energy to and from both the metal-air battery pack (101) and the non-metal-air battery pack (103).  The methodology applied by the controller (107) is based on input from a variety of sensors (211) as well as the current operating conditions such as temperature and state-of-charge (SOC) of both battery packs.

One example of the methodology can be seen in FIG. 3 of the Hybrid Battery Pack Patents, in which the metal-air (MA) battery pack is used to charge the non-metal-air (NMA) battery pack when the SOC of the NMA battery pack falls below a preset value.

This is consistent with the Cleantechnica article, which notes the patents’ mention of a mode whereby the metal-air battery woudl charge the lithium-ion battery.  The article says the hybrid battery pack would primarily use the lithium ion battery and draw power from the metal-air battery only on extended journeys.

From the patents’ summary section:

The present invention provides a power source comprised of a first battery pack (e.g., a non-metal-air battery pack) and a second battery pack (e.g., a metal-air battery pack), wherein the second battery pack is only used as required by the state-of-charge (SOC) of the first battery pack or as a result of the user selecting an extended range mode of operation.

The Hybrid Battery Pack Patents note that metal-air batteries have certain advantages over conventional rechargeable batteries such as extremely high energy density, but they also have drawbacks like electrolyte evaporation and the need to ensure sufficient air supply.  By combining a metal-air battery with a lithium ion battery, the hybrid system takes “advantage of the benefits of both battery types, while significantly limiting the negative effects of either type.”

Cleantechnica calls this a “different kind of hybrid” and says “[a] hybrid battery of this type could offer Tesla customers greater driving ranges, while not drastically increasing costs.”

Court Enjoins LED Greenwashing; Orders Lighting Co. to Pay $21 Million for Consumer Redress

October 11th, 2013


A previous post discussed a recent court decision giving the U.S. Federal Trade Commission (FTC) a big win and holding that Lights of America (LOA) violated Section 5 of the FTC Act by making false claims about LED lamps replacing certain wattage incandescent lamps and about the lifetime of the company’s LED lamps.

At issue were LOA’s “replacement” claims and “lifetime” claims.  The replacement claims stated that certain LED lamps replace 20-, 40-, and 45-watt incandescent light bulbs and indicated that the lamps produce the lumen equivalent of each compared incandescent.

The lifetime claims included statements by LOA that certain lamps last six, seven, ten, and even fifteen times longer than 2,000 hour incandescent bulbs, for a maximum claimed 30,000 hours of life. 

The court found both LOA’s “replaces watts” claims and its LED lifetime claims false and unsubstantiated and constituted violations of Section 5(a) of the FTC Act.

The court has now issued a Final Judgment and Order imposing an injunction that prohibits LOA from making any misrepresentations about its LED products relating to four categories of product features:

(1) Light output or brightness in lumens;

(2) Light output equivalency to incandescent or any general service lamp;

(3) Lifetime of the product; or

(4) Energy costs, energy savings, energy consumption, or energy-related efficacy.

If LOA is to make any such claims they must be backed up by “competent and reliable evidence that substantiates that the representation is true.”

The decision also includes a substantial monetary judgment, ordering LOA to pay the FTC $21,165,863.47.  This is the amount the court determined represented the injury to consumers or LOA’s unjust enrichment resulting from its violations of the FTC Act.

The court directed the FTC to deposit the money into a redress fund to be used for consumer redress, and if not practicable or there are funds left over, to use the remaining money for equitable relief reasonably related to LOA’s deceptive practices.

Any money left after that, the court said, will be deposited to the U.S. Treasury as disgorgement, which could come in handy should Congress fail to raise the debt ceiling next week and the government default on its debt obligations.

Greenwashing 2.0 Published

October 7th, 2013

I’m pleased to announce that my article – Greenwashing 2.0 – was published at the end of September in the Columbia Journal of Environmental Law (CJEL).  The current issue of CJEL can be found here.

In this piece, I argue that discussions of greenwashing are unduly restricted to cases in which an individual consumer, a class of consumers, or a consumer watchdog such as the FTC challenges a company making false or misleading green B-to-C claims about its products or services.

To put greenwashing in its proper context I think we should consider a wider range of cases, some of which are not immediately recognizable as instances of greenwashing.  More particularly, new paradigm greenwashing actions are brought by or on behalf of commercial consumers and involve B-to-B communications and representations.

Examples are breach of contract cases involving wind resource estimates and cogeneration equipment (see, e.g., here and here), eco-mark infringement suits over environmental compliance software and counterfeit solar panels (see, e.g., here and here), and civil and criminal fraud cases brought by governmental authorities for environmental crimes and sale of invalid renewable fuel credits (see, e.g., here and here).

From this broader vantage point, and keeping in mind the definition of greenwashing – making false or misleading claims about purportedly environmentally friendly products, services, or practices – I argue that we will be able to recognize, observe and understand the full scope of the greenwashing problem.

CJEL does not include abstracts in its articles, so I’m pasting my abstract in here:

For over forty years, environmental awareness and concerns about the environmental impact of products, services, and business practices have influenced consumer decision-making, corporate advertising, and marketing strategies.  As the purchasing power of green consumers has grown, the instances of marketers making false or misleading advertising claims about environmental benefits—“greenwashing”—have multiplied from an occasional irritant to a ubiquitous practice with major ramifications for the struggle to mitigate climate change.  Throughout, the paradigm for investigating, studying, and combating greenwashing has been to focus on claims by companies engaged in marketing consumer products to individual consumers and the effects of those claims on consumers. That was justifiable because, until fairly recently, nearly all instances of greenwashing involved such scenarios, and the vast majority of greenwashing legal actions were brought by or on behalf of individual green consumers.  But that view of greenwashing has become antiquated and is too narrow to account for greenwashing activity today.  Now that we are in the midst of the first sustained clean tech revolution, there is greatly increased commerce in green technologies, much of which is business-to-business.  The clean tech boom has given rise to a spate of lawsuits involving alleged false and deceptive representations about the genuineness, reliability, and efficiency of green technology equipment and related services.  The limited historical view of the traditional greenwashing paradigm misses this new species of cases entirely, perpetuating a significant greenwashing “blind spot” and leading to a gross underestimation of the scope and impact of greenwashing activity today.  This article argues that we need a new paradigm that takes a broader view of the phenomenon of greenwashing.  Specifically, we should look beyond the traditional paradigm of greenwashing, which is limited to deceptive marketing of consumer products to individual consumers, and contemplate a wider variety of cases that include representations made to green commercial consumers and legal actions brought by and on behalf of commercial consumers.  By changing the greenwashing paradigm in this way and defining it more expansively to reflect the commercial realities of the clean tech revolution, we will eliminate the blind spot and provide the broader vantage point necessary to identify and understand new instances of greenwashing.


In LED Greenwashing Case Court Unplugs Lights of America

October 3rd, 2013

A previous post discussed an action brought by the U.S. Federal Trade Commission (FTC) against Lights of America (LOA), charging the California LED lamp maker of violating the FTC Act by making false or unsubstantiated advertising claims about its products.

In a recent decision, a Los Angeles federal court held that LOA violated Section 5 of the FTC Act by making false claims about LED lamps replacing certain wattage incandescent lamps and about the lifetime of the company’s LED lamps.

Section 5(a) of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.”

At issue were LOA’s “replacement” claims, which stated that certain LED lamps replace 20-, 40-, and 45-watt incandescent light bulbs and indicated that the lamps produce the lumen equivalent of each compared incandescent.

The court found that none of lumen output readings for the LED lamps at issue equaled the typical lumen output range for any of the compared incandescents.  In fact, the measured lumen outputs of LOA’s best performing products were significantly lower than each incandescent:

Even the lamp with the highest measured lumen output . . . provides only 48% of the highest point in the range of typical lumen output [of a 45-watt incandescent], and 80% of the lowest point in the range of the typical lumen output.

The lamp with the highest measured lumen output . . . provides only 23% of the highest point in the range of typical lumen output [of a 40-watt incandescent], and 36% of the lowest point in the range of typical lumen output.

The lamp with the highest measured lumen output . . . provides only 39% of the highest point in the range of typical lumen output [of a 40-watt incandescent], and 20% of the lowest point in the range of typical lumen output.

Thus, the court found LOA’s “replaces watts” claims false and unsubstantiated and constituted a violation of Section 5(a) of the FTC Act.

The lifetime claims at issue included statements by LOA that certain lamps last six, seven, ten, and even fifteen times longer than 2,000 hour incandescent bulbs, for a maximum claimed 30,000 hours of life. 

The court used as the standard for measuring the lifetime of an LED lamp something called “L70,” which is the point at which the light output of an LED lamp diminishes to 70% of its original light output.

Here the issue was partly lack of substantiation as the court found that LOA had no life test data for some of its LED lamps prior to February 2008. 

Subsequent testing failed to support LOA’s 30,000 hour life claim or its later 20,000 claims:

None of the lamps tested by LOA maintained lumen output above L70 during the period tested.  All had reached the end of life under L70 during . . . less than 7,000 hours of testing. 

The court therefore held the lifetime claims false:

LOA’s substantiation does not support its 30,000 or 20,000 hour lifetime claims.  Rather, the documents and data LOA relies upon show that none of the LEDs or Lifetime Lamps tested would last beyond a few thousand hours.

The false lifetime claims also constituted a violation of Section 5(a) of the FTC Act.

The court found injunctive relief warranted as well as restitution and disgorgement of LOA’s gross revenues from the deceptively advertised products, and requested the FTC to submit a proposed judgment for the court to consider.

The monetary penalty for LOA could be quite severe.  According to the court’s decision, the company’s total gross sales for all of its LED lamps that it falsely and deceptively advertised through April 2011 equals $21,165,863.47.