Archive for May, 2014

Federal Circuit Gives GE LED Patents New Life in Suit Against AgiLight

May 30th, 2014

 

A previous post discussed AgiLight‘s summary judgment win at the district court level where the LED lighting developer’s products were found not to infringe two GE patents, U.S. Patent Nos.7,633,055 (‘055 Patent) and 7,832,896 (‘896 Patent)

Two other GE patents  – 7,160,140 entitled “LED string light engine” (‘140 Patent) and 7,520,771 entitled “LED string light engine and devices that are illuminated by the string light Engine”(‘771 Patent) – had previously been found not infringed in an earlier summary judgment decision.

The ‘055 and ‘896 Patents are entitled “Sealed light emitting diode assemblies including annular gaskets and method of making same” and “LED light engine,” respectively, and relate to LED string light engine structures and assembly methods.

GE appealed, and a recent decision by the Court of Appeals for the Federal Circuit reversed the grant of summary judgment with respect to the ‘896 Patent (and the two other GE patents) and affirmed summary judgment with regard to the ‘055 Patent.

The Federal Circuit found the district court’s interpretation of the claim term “IDC connector” in the ‘140 and ‘771 Patents was incorrect and unduly narrow.  The district court limited it to a more specialized connector having four electrical terminals and a two-part housing that snaps together so the terminals pierce the conductor’s insulation.

The term should have been construed consistent with its ordinary meaning of “a connector that displaces insulation surrounding an insulated conductor to make electrical contact with the conductor.”

The issue for the ‘896 Patent was whether the claim term “substantially ellipsoidal inner profile” means the entire inner profile of the LED lens must be substantially ellipsoidal or only a portion is substantially ellipsoidal.  The district court held that the entirety of the lens must be substantially ellipsoidal, and AgiLight’s product did not infringe because it included non-ellipsoidal, conical portions.

The Federal Circuit disagreed, observing that in the only embodiment disclosed in the ‘896 Patent (in Figure 7, reproduced below) the bottom half of the lens is not ellipsoidal:

According to the patent, the inner profile 152 of Figure 7 is ellipsoidal.  It is undisputed that only a portion of the inner profile 152 (the part above the line at 152) is substantially ellipsoidal.  The bottom half of that inner profile (the portion below the line at 152) is not arguably substantially ellipsoidal.

Thus, there was a genuine factual dispute as to whether the AgiLight product includes a “substantially ellipsoidal profile” and summary judgment was improper:

A key claim term at issue with respect to the ‘055 Patent was an “annular gasket,” which the district court had interpreted to require an opening in its center that is capable of sealing off its center area.

In the the ‘055 Patent, this feature is shown in Figure 4, where the annular gasket 32 surrounds LED 16 before a generally hollow member (not shown) is sealed against the top of the annular gasket to fully enclose the LED.

The court determined that the AgiLight lens (shown below) is not an “annular gasket” because the inner surface lacks an “opening” as required by the court’s interpretation of the term.  The Federal Circuit agreed, noting that a concave inner surface cannot be an opening.  So GE will get another opportunity to prove infringement of three the four patents asserted against AgiLight.

In GE Wind Patent Fight Federal Circuit Affirms Wilkins Inventorship Story is Incredible*

May 22nd, 2014

In previous posts (hereherehere, and here), I discussed a significant ancillary battle in the GE-Mitsubishi wind patent war.  In this entertaining sideshow, GE and a former employee, Thomas Wilkins, have been fighting over ownership of two of the patents involved in the larger litigation.

The patent-at-issue in this case is U.S. Patent No. 6,921,985 (’985 Patent).  The ’985 Patent is directed to a wind turbine that includes a blade pitch control system and a turbine controller coupled with the blade pitch control system.  To increase the reliability of the turbine’s power supply, the turbine controller causes the blade pitch control system to vary pitch in response to transitions between different power sources.

After Wilkins brought a lawsuit to correct inventorship, Mitsubishi intervened in the suit.  The case aroused Mitsubishi’s interest because the ’985 Patent is one of several asserted by GE against Mitsubishi in at least two lawsuits.

After the district court decided that Wilkins was not a co-inventor of the invention claimed in the ’985 Patent, Mitsubishi and Wilkins appealed.

In a recent decision, the Court of Appeals for the Federal Circuit affirmed the district court ruling.

To overcome the presumption that the named inventors on a patent are correct, an alleged co-inventor must prove his inventive contribution by clear and convincing evidence.  The putative inventor can’t rely on his testimony alone.  Rather, there must be evidence to corroborate his testimony.

The problem for Wilkins was that the district court found his testimony on inventorship not credible, and the proffered corroborating witness testimony fell short because the witnesses either relied on Wilkins or failed to provide ample basis for their opinions.

On appeal, Wilkins acknowledged his credibility problems but argued that the instances in which his credibility was impeached only extended to “immaterial and tangential points.”  The appeals court disagreed:

Based on the trial record, we find no clear error in the district court’s assessment that the substance of Wilkins’s testimony, which addressed central issues such as conception and contribution, was inconsistent and purposefully evasive.  We agree with the district court’s conclusion that Wilkins left his case with no credibility.

As it turned out, this wasn’t an issue of insufficient corroborating evidence of inventorship.  Rather, as the court explained, the document Wilkins sent to GE’s German engineers, which he argued demonstrated his conception of the invention, did not disclose any elements of the claimed invention:

Notwithstanding that the record is devoid of proof that the German engineers relied on anything discussed in that document as part of their conception . . . our review of the record verifies that the document does not disclose any of the subject matter claimed in the ‘985 patent.

In fact, the document in question “does not even depict the key feature Wilkins claims to have invented, i.e., a UPS powering the wind turbine’s three controllers.”

Therefore, there was no credible evidence of Wilkins’s conception:  “Wilkins provided no credible testimony for that document to corroborate” and “without credible testimony from Wilkins, there was nothing to corroborate.”

This chapter in the GE-Mitsubishi patent litigation appears to be closed.

 

*Mr. Wilkins disputes the accuracy of this post.

CEPGI 2013 Year in Review Shows Small Annual Rise But Record High for Green Patents

May 15th, 2014

 

The Clean Energy Patent Growth Index (CEPGI) recently released its 2013 Year in Review.  Researched and published by the Heslin Rothenberg law firm, CEPGI is a quarterly report on clean energy patents granted in the United States.

CEPGI has been tracking green patent trends by technology sector, assignee, and geography since 2002.

Most years have seen new record highs in granted green patents, and 2013 was no exception, with 3175 clean energy patents granted by the U.S. Patent and Trademark Office.  The year-to-year increase of 114 from 2012, however, was relatively small compared to the annual jumps in the last several years.

The leading sector in 2013 was Solar, with 965 patents granted, followed by 886 Fuel Cell patents, with Wind patents in third place.  This was the first year Solar surpassed Fuel Cell patents, which dropped from its high of 1024 patents awarded in 2012.

Hybrid/Electric Vehicle patents jumped 123 from 2012 to 409 patents granted in 2013 to take the fourth place position, and Biomass/Biofuel patents were in fifth place, up 47 patents from the prior year to 226.

The largest annual percentage growth was in Geothermal patents, with a 50% increase (from 14 to 21 patents), and Hybrid/Electric Vehicle patents saw a 43 percent increase.  Tidal/Wave energy patents rose 34 percent, Biomass/Biofuel patents grew by 26 percent, and Solar patents were up 12 percent.

The top patent owners for 2013 were GM, with 169 patents, followed by Toyota (158 patents), Samsung (103 patents), and GE and Honda, both with 89 patents.  Rounding out the top ten were Mitsubishi, Hyundai, Ford, Vestas, and Siemens.

CEPGI’s Year in Review breaks out the leading patent owners by sector as well.  The leader in Fuel Cell patents was GM, with 128, Toyota took second place with 110, and Samsung was in third place (69 patents).

GE led in Wind, with 66 patents in 2013.  Mitsubishi was a fairly close second, with 54 patents, followed closely by Vestas (47 patents) and Siemens (41 patents).  In 2013, the Solar patent field in was led by Samsung (31 patents) and SunPower (28 patents).

An interesting statistic is the large annual increase in the number of U.S. green patentees:

Looking only at 2013 . . . , around 1500 entities contributed to the record total of Clean Energy patents in 2013, which is hundreds more patent grantees than 2012.

This indicates that the universe of green patentees (read:  green tech innovators) is rapidly growing and diversifying.

According to CEPGI, this effect is most pronounced in the Solar sector (“[o]ver 600 different entities were granted Solar patents in 2013”).  In both Fuel Cells and Wind, by comparison, there were about 300 different entities granted patents in 2013.

The full report can be read and downloaded here.

 

As FTC Revises Rules for Fuel Economy Ads Green Guides Can Guide

May 8th, 2014

A piece published this week on Green Car Reports starts this way:

No one wants to buy a brand-new car, only to find out that its real-world fuel economy doesn’t match the numbers on the window sticker.

It struck me that this statement describes the plaintiffs in a number of greenwashing lawsuits filed (and covered in this space) over the last several years.  The suits against Ford, Hyundai and KiaToyota, and Honda are notable examples where the actual miles-per-gallon allegedly did not match the sticker and/or the advertising.

Turns out the Federal Trade Commission will be  revising its fuel-economy advertising guidelines and is seeking comments relating to “information that helps marketers avoid deceptive or unfair claims,” among other things. Entitled the “Guide Concerning Fuel Economy Advertising for New Automobiles,” the guidelines were first issued in 1975.

One specific issue the FTC will consider is whether marketing material that makes a “general fuel economy” claim should include a specific mile-per-gallon figure.  Another question is whether an ad that specifies the fuel-economy rating in one EPA category or lists a specific mpg rating without specifying the category is deceptive.

For anyone familiar with the FTC’s Green Guides, these questions will be very familiar.  The Guides for the Use of Environmental Marketing Claims were first published by the FTC in 1992 and have undergone at least three revisions, most recently in 2012.

The Green Guides states that claims of general environmental benefits are deceptive:

It is deceptive to misrepresent, directly or by implication, that a product, package or service offers a general environmental benefit.

Why?  Because, the guides explain:

Unqualified general environmental benefit claims are difficult to interpret and likely to convey a wide range of meanings.  In many cases, such claims likely convey that the product, package, or service has specific and far-reaching environmental benefits and may convey that the item or service has no negative environmental impact.  Because it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims, marketers should not make unqualified general environmental benefit claims.

It would be logical, I think, to extend this rule and its rationale to general fuel economy claims.  Fuel economy ratings fall into different categories.  They can be broken down into city and highway driving, for example, and many factors, such as how the car is tested, can determine the results.

Also, the Green Guides provide that marketing statements about recycling, for example, must specify exactly what percentage and which element of the product (the product itself, the packaging, or both) is recyclable or made from recycled material.

This required granularity should lend itself to rules that marketing statements about fuel economy benefits need to specify, among other things, the EPA category being touted.

Of course it was inevitable that regulators in particular fields would contemplate promulgating or revising their rules to take into account deceptive environmental marketing claims.  They are fortunate to have the Green Guides to guide them.