Archive for March, 2017

Clean Tech in Court: Green Patent Complaint Update

March 29th, 2017

Several new green patent complaints were filed in January and February in the areas of advanced batteries, waste-to-energy feedstocks, energy-efficient exercise equipment, and LEDs.

 

Advanced Batteries

Advanced Electrolyte Technologies LLC et al. v. ESDI LLC et al.

Advanced Electrolyte Technologies (AET) sued ESDI and several divisions of Samsung in a complaint filed January 18, 2017 in federal court in Austin, Texas.

AET alleges that the defendants infringe U.S. Patent No. 6,033,809 (‘809 Patent) and U.S. Patent No. 6,927,001 (‘001 Patent), which relate to electrolytes for lithium-ion batteries.

The ‘809 Patent is entitled “Lithium secondary battery and electrolyte thereof” and directed to non-aqueous electrolyte lithium secondary battery comprising a cathode, an anode and a non-aqueous electrolyte comprising an electrolyte dissolved in a non-aqueous solvent, wherein the solvent contains a cyclic carbonate, a linear carbonate, and a sultone derivative.

Entitled “Non-aqueous electrolyte solution and lithium secondary battery,” the ‘001 Patent is directed to non-aqueous electrolytic solution composed of two or more organic compounds dissolved in a solvent composed of a cyclic carbonate and a chain carbonate in which both of the organic compounds have a reduction potential higher than those of the cyclic and chain carbonates, and in which one of the organic compounds has a reduction potential equal to that of another organic compound or has a reduction potential lower or higher than that of another organic compound.

The complaint contains a long list of accused products including batteries used in the Samsung Chromebook 3 and 7 Spin, as well as batteries used in several Samsung Galaxy devices.

 

Somaltus LLC v. Cummins, Inc. et al.

Somaltus LLC v. Honeywell International, Inc.

Somaltus LLC v. Minn Kota, Inc.

Somaltus LLC v. Pro Charging Systems, LLC

Somaltus, a non-practicing entity, filed four new lawsuits on January 12, 2017, all federal court in Marshall, Texas, against Cummins (Somaltus v. Cummins), Honeywell (Somaltus v. Honeywell), Minn Kota (Somaltus v. Minn Kota), and Pro Charging Systems (Somaltus v. Pro Charging Systems).

Each suit asserts U.S. Patent No. 7,657,386, entitled “Integrated battery service system (‘386 Patent).

The ‘386 Patent is  directed to an integrated battery service system that performs a plurality of services related to a battery, such as battery testing, battery charging, and the like. In addition, the integrated service system provides services to devices/components that are coupled to the battery, such as starters, alternators, etc.

The accused products are the Cummins Energy Command (EC-30) power generation system, Honeywell’s 2.1 Amp Dual USB AC Charging Adapter, the 2.1 Amp Single USB AC Charging Adapter, and the Ovale 4.2 Amp Smart Charging Station, the Minn Kota Digital Onboard Charger, and the Pro Charging Systems Dual Pro Eagle Chargers.

 

Waste-to-energy Feedstocks

Accordant Energy, LLC v. Vexor Technology, Inc. et al.

In this lawsuit Accordant Energy accuses Vexor of infringing two patents relating to engineered feedstocks.

The patents are U.S. Patent Nos. 9,062,268 and 9,523,051, each entitled “Engineered fuel feed stock” and directed to feed stocks for use as gasification and combustion fuels and methods of making the feed stocks.  Components derived from processed MSW waste streams are used to make the feed stocks, which are substantially free of glass, metals, grit and noncombustibles.

Filed February 28, 2017 in U.S. District Court for the Northern District of Ohio, the complaint names Vexor Engineered Fuel as the accused product.

Energy-Efficient Exercise Equipment

Green Fitness Equipment Co. v. Precor Inc.

It’s not every day you see patent litigation involving green exercising technology, but this one is about exactly that.

In a complaint filed February 8, 2017 in U.S. District Court for the Southern Distric of California, Green Fitness alleges that Precor has incorporated its patented invention into its EFC Elliptical Cross-trainer products that include Active Status Light technology.

The patent-in-suit is U.S. Patent No. 8,884,553, entitled “Current monitor for indicating a condition of attached electrical apparatus” (‘553 Patent).

The ‘553 Patent is directed to a current monitor that indicates a condition of attached electrical equipment.  The current monitor can determine a predetermined range in which current being withdrawn by the attached electrical apparatus lies.  Based on the determined range, corresponding display electronic elements, such as light emitting diodes (LEDs), can be activated.

The commercial embodiment of Green Fitness’s patented invention is its Treadmill Saver product.

LEDs

Metrospec Technology LLC v. Hubbell Lighting, Inc.

This lawsuit was filed February 3, 2017 in U.S. District Court for the District of Minnesota.  The complaint asserts three patents relating to high intensity flexible light circuits.

The patents are U.S. Patent Nos. 8,143,631, 8,525,193 and 9,341,355, each entitled “Layered structure for use with high power light emitting diode systems.”

The asserted patents are directed to a layered structure comprising an electrically insulating intermediate layer interconnecting a top layer and a bottom layer.  The top layer, the intermediate layer, and the bottom layer form an at least semi-flexible elongate member which is bendable laterally to a radius of at least 6 inches, twistable relative to its longitudinal axis up to 10 degrees per inch, and bendable to conform to localized heat sink surface flatness variations having a radius of at least 1 inch.

Metrospec alleges that the NorFlex product offered by Hubbell’s Thomas Research Products division infringes the patents.

Unity Opto Technology Co. v. Cree, Inc.

Unity Opto Technology Co. v. Cree, Inc.

Unity Opto Technology (UOT) sued Cree twice in January, seeking a declaratory judgement that Cree’s U.S. Patent Nos. 8,596,819 (‘819 Patent), 8,628,214 (‘214) Patent),  8,998,444 (‘444 Patent) and 9,052,067 (‘067 Patent) are invalid and that UOT does not infringe the ‘067 Patent.

The ‘819 and ‘214 Patents are entitled “Lighting device and method of lighting” and directed to a lighting device which emits light with an efficacy of at least 60 lumens per watt, and up to at least 300 lumens in some embodiments, where the output light has a CRI Ra of at least 90.  The lighting device comprises at least one solid state light emitter, e.g., one or more light emitting diodes, and optionally further includes one or more lumiphor.

The ‘444 Patent is entitled “Solid state lighting devices including light mixtures” and directed to a solid state lighting apparatus including at least a first LED and a second LED.  The first LED emits light in the blue portion of the visible spectrum and red light in response to the blue light. The second LED emits light having a color point that is above the planckian locus of a 1931 CIE Chromaticity diagram, and in particular may have a yellow green, greenish yellow or green hue.

Entitled “LED lamp with high color rendering index,” the ‘067 Patent is directed to an LED lamp that can emit light with a color rendering index (CRI) of at least 90 without remote wavelength conversion.

The first complaint was filed January 3, 2017 in U.S. District Court for the Central District of California.  The second complaint was filed January 6, 2017 in the same court.

Solar Mounting Systems

Rillito River Solar, LLC v. Bamboo Industries LLC

In a lawsuit filed January 26, 2017 in U.S. District Court for the Eastern District of California, Rillito sued Bamboo Industries LLC dba SolarHooks for alleged infringement of three patents relating to solar mounting systems.

The complaint lists SolarHooks’ Composition Flashing Kit as the accused product.

The patents-in-suit are U.S. Patent Nos. 8,153,700 (‘700 Patent), 9,134,044 (‘044 Patent) and 9,447,988 (‘988 Patent).

Entitled “Roofing system and method,” the ‘700 Patent is directed to a roof mounting system which includes a roof substrate and flashing supportable on the substrate and an outwardly extending projection having a concave interior side and an aperture extending through the projection between top and bottom surfaces of the flashing. A seal is provided that is conformable with the concave interior side and can define a seal aperture substantially aligned with the flashing aperture.

The ‘044 and ‘988 Patents are entitled “Roof mount assembly” and directed to a mount assembly which includes a flashing including an aperture, a bracket including a first portion and a second portion, the first portion having an opening and a countersink extending around the opening, the second portion extending at an angle away from the flashing, the second portion including a slot configured to be coupled to the structure, a fastener, and a seal extending around the aperture and positioned between the flashing and the first portion of the bracket, the seal engaging the countersink of the bracket and being compressed against the flashing.

Are Trump’s Trademarks Impeachable Intellectual Property?

March 16th, 2017

Followers of this blog may have recognized through the years an implicit belief in a connection between the sometimes intricate rules of intellectual property and larger, high-level issues, principally climate change, but also business, competition, and innovation.

Indeed, I do believe that IP has an impact on those important issues and in those areas of human endeavor, otherwise why would I be blogging in this space?

One thing I never imagined, though, is that IP could potentially have implications for the fate of a head of state, particularly an American president.

Recent news reports (e.g., here, here and here) raise the fascinating prospect that Trump’s trademark filings in other countries (e.g., China, Russia) could be a basis for impeachment.

There are two theories of the case.  Each is rooted in the Emoluments Clause of the U.S. Constitution, which prohibits federal officials, including the president, from accepting anything of value from foreign governments unless explicitly approved by Congress.

First, the quid pro quo theory:

For a specific Trump trademark application or group of applications approved by another nation’s intellectual property office, one might ask whether that nation’s government was promised something in return, is obtaining something in return, or hopes to obtain something in return or otherwise influence the American president.

In February, the Chinese Trademark Office registered an important Trump trademark.  Diane Feinstein, a U.S. Senator from California, questioned the timing of the registration, noting that it came days after Trump reaffirmed the U.S. “One China” policy on a phone call with his Chinese counterpart.  This was a reversal by Trump after questioning the United States’ commitment to the policy during his election campaign.

At issue is Chinese Trademark Registration No. 14831415, registered February 14, 2017 for the TRUMP mark for various construction services.  According to its records history, the application was filed back in 2014, was initially accepted in March 2015, and then refused registration less than a month later.

The application was ultimately approved and published for opposition November 13, 2016, days after Trump won the U.S. presidential election, and then proceeded to registration.

Second, the valuable brand theory:

The second theory rests on the simple fact that Trump profits from his brands.  Arguably, then, when an intellectual property office – an agency of another nation’s government – grants Trump protection for his trademarks, that action constitutes something of value from that government.

Taking this broader view, as reported by recent articles in The New York Times and The Washington Post, it is relevant that the Chinese Trademark Office also approved and published for opposition 38 other trademark applications containing the term “TRUMP” on February 27 and March 6, 2017.

As pointed out by a trademark lawyer from the Sheppard Mullin law firm quoted in the Post piece, the timing of the approvals is not particularly suspicious.  These approved applications were filed in April 2016.  Under a recent revision to Chinese trademark law, the Chinese Trademark Office is supposed to complete examination of an application within nine months of its filing date.

It also should be noted that seven TRUMP applications filed around the same time were not initially approved.

Under the valuable brand theory, though, timing is less significant.  So long as decisions approving trademarks and actions registering them are taken by another nation while Trump is in office, there is potential value flowing from that nation to the American president.  And according to a recent AP story, Trump currently has 49 trademark applications pending in China.

This author admittedly lacks the constitutional law background to render any opinion on the the viability of either theory, so I will leave it to others with the requisite expertise to weigh in on whether Trump’s trademarks might constitute impeachable intellectual property.

Hmm . . . a Few Bars: Tesla Changes its Tune on Model 3 Trademark

March 8th, 2017

About a year ago, Tesla filed two new trademark applications in the U.S. Patent and Trademark Office (USPTO) – Application Serial Nos. 86/960,133 and 86/960,138 – the first for its three bars design and the second for the mark MODEL 3 with three bars:

 


Last month, Adidas filed an opposition proceeding in the USPTO opposing registration of the two applications.  The problem was that Tesla’s trademark applications were not for electric vehicles, but for clothing.

In its Notice of Opposition, Adidas argued that it would be damaged if Tesla were to obtain these registrations because consumers would be confused by the similar trademarks used on related products and such use would dilute the distinctiveness of Adidas 3-bar brand:

Tesla decided not to fight, instead withdrawing its trademark applications, which led the USPTO Trademark Trial and Appeal Board to declare Adidas the victor.

According to a few recent articles (e.g., on engadget and GeekWire), Tesla has changed its logo from three bars to the number 3.

From a quick scan of the federal trademark records, it doesn’t look like Tesla has filed any new trademark applications since giving up on the bars.  However, the automaker has a pending application for MODEL 3 for clothing – Application Serial No. 86/301,896 – filed back in 2014.

Should the USPTO Delay Publication of Trademark Applications? (Part 1)

March 1st, 2017

A while back, I published a couple of posts (here and here) about Chevrolet’s trademark applications for BOLT and CHEVROLET BOLT (Application Nos. 86357513 and 86357523).  The automaker had previously filed trademark applications for the same marks in Brazil, and the U.S. applications claimed priority to the Brazilian ones.

At the time, there was much speculation in the blogosphere about Chevy’s intentions:  was the company really planning a new vehicle called the BOLT or was it trying to preclude others from using the name?

Given that question, my posts focused on the use requirement for registration of most U.S. trademarks and explained that, for a U.S. trademark application claiming priority to an application filed in another country, the applicant can obtain a U.S. registration based on registration of the priority application in that country.

This is an exception to the general rule that the applicant must use the mark in the U.S. for the goods and/or services listed in the application to get a registration and must prove such use by submitting a specimen showing such use.

So filing a U.S. trademark application based on a foreign or international registration gets around the use requirement (in the United States and potentially anywhere in the world), at least for the purpose of obtaining a U.S. trademark registration.  I concluded, therefore, that perhaps Chevy’s motivation was to skirt the use requirement in the United States.

That explanation probably was wrong because, as it turned out, Chevy did unveil a concept car call the BOLT at the Detroit Auto Show in January 2015 and indicated it would start production in 2017.

Nevertheless, that might have been the end of the matter for me if I hadn’t caught another notable news item from around the same time about the intricacies of trademark filing.

As reported by the Wall Street Journal’s law blog and the Trinidad Express, among others, before filing its U.S. trademark application for APPLE WATCH Apple filed an application for the mark in the Caribbean twin island nation of Trinidad and Tobago.

As technology reporters, bloggers, and consumers wondered what Apple would call its new smartwatch, the company had already taken the critical step in securing its trademark rights to the name several months before launching the product.  And it did so way off the radar so as to keep it under wraps.

This is because, unlike patent applications, U.S. trademark applications are immediately publicly available after filing (it may take a day or two for processing, but there is no publication delay in the system).

So while those tech observers certainly thought to search the U.S. trademark application records to glean Apple’s branding intentions, it would have occurred to no one to attempt a review of Trinidad and Tobago trademark filings.

Within six months, Apple filed at least one U.S. application for APPLE WATCH claiming priority to the Trinidad and Tobago application (Application No 86389945).

Since the Chevrolet Bolt posts and the Apple Watch news, my mind has drifted back these trademark filing curiosities many times.

For some reason, they bother me, and I find myself posing this question:  why should a U.S. trademark applicant that wants to take that crucial first step of securing its rights with a trademark filing while maintaining control of a new brand launch have to file an application in an intellectual property office in some obscure corner of the planet?

My idea, which has been percolating for a while, is this:  perhaps there should be a delay in initial publication of new trademark applications, a brief “blackout” period to maintain applicants’ confidentiality.  I’ll explain this proposal in detail in Part 2 of this post.