Archive for the ‘Energy Efficiency’ category

Clean Tech in Court: Green Patent Complaint Upate

July 29th, 2016

A number of new green patent infringement complaints were filed in May and June in the areas of green cleaning solvents, LEDs, lighting control technology, smart thermostats, smart meters, and water meters.

 

Green Cleaning Solvents

GreenEarth Cleaning, LLC v. Kings Park Green Cleaners, LLC

This action for patent infringement, trademark infringement, and breach of contract was filed June 21, 2016 in the U.S. District Court for the Western District of Missouri.

Although the complaint lists nine patents, there is only one count of patent infringement asserting U.S. Patent No. 5,942,007 (‘007 Patent).

The ‘007 Patent is entitled “Dry cleaning method and solvent” and directed to dry cleaning methods comprising the steps of immersing clothes in a dry cleaning fluid including a cyclic siloxane composition, agitating the clothes in the composition, and then removing the cyclic siloxane composition by centrifugal action and air circulation.

According to the Abstract of the ‘007 Patent, the “cyclic-siloxane-based solvent allows the system to result in an environmentally friendly process which is, also, more effective in cleaning fabrics and the like than any known prior system.”

GreenEarth alleges that Kings Park, which had a license from GreenEarth, continues to use liquid silicone as a dry cleaning solvent though it is no longer a licensee.

 

LEDs

Lighting Science Group Corporation v. Hubbell Inc. et al.

Lighting Science Group Corporation v. American De Rosa Lamparts, LLC

Lighting Science filed both of these lawsuits in federal court in Orlando, Florida on June 21, 2016.

Both complaints assert U.S. Patent No. 8,201,968 (‘968 Patent), U.S. Patent No. 8,967,844 (‘844 Patent), and U.S. Patent No. 8,672,518 (‘518 Patent).

Entitled “Low profile light,” the ’968 Patent is directed to a luminaire including a heat spreader and a heat sink disposed outboard of the heat spreader, an outer optic securely retained relative to the heat spreader and/or the heat sink, and an LED light source.

The ‘518 Patent and the’ 844 Patent are entitled “Low profile light and accessory kit for the same” and relate to LSG’s disc light LED devices.

Hubbell’s “Surface Mount” family of products are the subject of the Hubbell complaint, and the American De Rosa complaint lists the F9908-30, F9901-30-1, F9904-30-1, and F9906-30-1 products.

 

Nichia Corporation v. Mary Elle Fashions, Inc.

Nichia Corporation v. Lowe’s Companies, Inc.

Nichia Corporation v. Feit Electric Company, Inc.

These three actions, filed June 13, 2016, accuse each defendant of infringing U.S. Patent No. 8,530,250 (‘250 Patent).

Entitled “Light emitting device, resin package, resin-molded body, and methods for manufacturing light emitting device, resin package and resin-molded body,” the ‘250 Patent is directed to a method of manufacturing an LED such that the optical reflectivity at a wavelength of 350-800 nm after thermal curing is 70% or more.

The method includes the steps of sandwiching a leadframe with a notched section, transfer-molding a thermosetting resin containing a light-reflecting substance, forming a resin-molded body on the leadframe, and cutting the resin-molded body and the leadframe along the notched section.

The Mary Elle Fashions complaint lists as accused products the Meridian CFL Plus and the LED Night Light, the Lowe’s complaint lists the Utilitech Pro 24-in Strip Light and LED Bulb, and the Feit Electric complaint lists the BPOM60/830/LED Bulb and the LG2560/CL/LEDG2 Bulb.

 

DeNovo Lighting, LLC v. Norman Lamps, Inc.

DeNovo sued Norman Lamps for alleged infringement of U.S. Patent No. 8,729,809, entitled “Voltage regulating devices in LED lamps with multiple power sources” (‘809 Patent).

The ‘809 Patent is directed to an LED lamp having three voltage reducing devices, a voltage regulating circuit for providing linear current, the circuit not dependent on a voltage or electromagnetic induction power;,and at least two LEDs connected in series across the voltage regulating circuit.

The complaint, filed June 7, 2016 in the U.S. District Court for the Northern District of Illinois, alleges that Norman’s Hybrid T8 lamps infringe the ‘809 Patent.

 

Philips Lighting North America Corporation et al. v. ikan Int’l, LLC

Philips has asserted more of its LED patents, this time against iKan in the U.S. District Court for the District of Massachusetts.

In a complaint filed May 31, 2016, Philips accused iKan of infringing the following patents:

U.S. Patent No. 6,692,136, entitled “LED/phosphor-LED hybrid lighting systems”

U.S. Patent No. 6,788,011, entitled “Multicolored LED lighting method and apparatus”

U.S. Patent No. 7,014,336, entitled “Systems and methods for generating and modulating illumination conditions”

U.S. Patent No. 7,180,252, entitled “Geometric panel lighting apparatus and methods”

U.S. Patent No. 7,255,457, entitled “Methods and apparatus for generating and modulating illumination conditions”

The accused products include various bi-color flood lights including the iLED 144, iLED 312-v2, IB-508-v2, StudioPRO 600, and Multi-K XL products.

 

Golight, Inc. v. Oracle Lighting, L.L.C.

Filed May 19, 2016 in the U.S.District Court for the District of Colorado, Golight’s lawsuit asserts U.S. Patent No. 9,255,687, entitled “LED system and housing for use with halogen light fixtures” (‘687 Patent).

The complaint alleges that Oracle’s 20W 4D Optic LED Square Spot and and 50 W LED portable search lights infringe the ‘687 Patent.

The ‘687 Patent is directed to an optical projection lens for mounting in front of LEDs.  The lens has a plurality of protrusions of varying thickness wherein the outermost edges of each protrusion has the thickest measurement, the center of each protrusion has the thinnest measurement, and the protrusions merge individual beams of light into a single beam of light.

 

LEDsOn et al. v. Qtran, Inc.

In an action for design patent infringement, LEDsON sued QTran,  on May 3, 2016 in the U.S. District Court for the Northern District of Illinois.

The patents-in-suit are:

U.S. Design Patent No. D649,683, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,684, entitled “Extrusion for LED-based lighting apparatus”

U.S. Design Patent No. D649,681, entitled “Extrusion for LED-based lighting apparatus”

The accused products are QTran’s IQA-RECD, IQA-45DN, and IQA-Flat LED-based lighting apparatus.

Smart Thermostats

FTC Sensors, LLC v. ecobee Inc.

In this action, filed in federal court in Marshall, Texas on June 1, 2016, FTC Sensors asserts three related sensor and transmission control patents.

According to the complaint, ecobee’s smart thermostat devices, including the Ecobee3 Thermostat, contain systems that infringe the three patents.

Each entitled “Sensor and transmission control circuit in adaptive interface package,” the patents are U.S. Patent Nos. 7,397,369, 7,696,870, and 8,421,621 (“Sensor Patents”).

The Sensor Patents are directed to a sensor system with a plurality of sensor modules. In a first mode, a linear voltage regulator provides a relatively small amount of power which allows a sensor module to output a signal responsive to detecting an environmental condition.

The interface module can switch the linear voltage regulator to a second mode in which the linear voltage regulator ramps up the amount of power provided to a detecting sensor module. The sensor module can then provide a level indicative of a concentration or intensity of the environmental condition. If the level surpasses a predetermined threshold, the sensor pack can output an alert signal to security server.

Smart Meters

TransData, Inc. v. CenterPoint Energy Houston Electric, LLC et al.

TransData has sued another utility, once again in federal court in Tyler, Texas on May 11, 2016.

The now-familiar (see previous posts, e.g., here and here) asserted patents are U.S. Patent Nos. 6,181,294 (‘294 Patent)and 6,462,713 (‘713 Patent), each entitled “Antenna for Electric Meter and Manufacture Thereof.”  The third patent, U.S. Patent No. 6,903,699, entitled “Wireless Communication Device for Electric Meter and Method of Manufacture Thereof,” is a continuation-in-part of ‘713 and continuation of ‘294.

These patents describe an electric meter capable of bi-directional communication over a wireless network.  The meter is equipped with wireless communication circuitry and an antenna allowing the meter to wirelessly send usage data to a remote location and wirelessly, receive operational instructions from the remote location.

The complaint lists as accused products the Itron OpenWay Centron electric meter, the Landis+Gyr Focus AX electric meter, the General Electric I-210c electric meter, and the General Electric kV2c electric meter.

 

Water Meters

Badger Meter, Inc. v. Sensus USA Inc.

Sensus USA Inc. v. Badger Meter, Inc.

In a game of dueling lawsuits, Sensus filed a complaint on June 16, 2016 against Badger seeking a declaratory judgment of non-infringement of U.S. Patent No. 8,539,827 (‘827 Patent), and Badger sued Sensus a week later alleging infringement of the ‘827 Patent.

Sensus sued in the U.S. District Court for the Northern District of California while Badger filed its complaint in the U.S. District Court for the Eastern District of Wisconsin.

The Badger complaint alleges that Sensus’s Ally water meter infringes the ‘827 Patent, entitled “Water meter with integral flow restriction valve.

The ‘827 Patent is directed to a water meter and a flow control valve housed in a common pressure vessel, in which the flow control valve restricts flow through a metering chamber to less than the normal flow, while still permitting a flow sufficient for basic human needs, rather than completely interrupting supply of the utility.

Lighting Controls

SIPCO, LLC v. Acuity Brands, Inc. et al.

Filed June 23, 2016 in the U.S. District Court for the District of Delaware, the SIPCO complaint asserts six patents against Acuity.

SIPCO alleges that Acuity’s XPoint Wireless sensors and controllers infringe the patents.

The patents-in-suit are U.S. Patent Nos. 8,013,7327,697,4927,468,661, 6,437,692, 6,914,893, and 7,103,511, which relate to remote monitoring and control systems.

Windows of Opportunity: Eco-mark Strategies for Green Coatings

December 8th, 2015

window

Where most of us just gaze through windows at the world outside, SolarWindow Technologies, Inc. (SolarWindow) and DryWired both look at them and see opportunities for clean tech innovation.  And both are examples of successful navigation of the federal trademark process for protecting their eco-marks.

SolarWindow sees windows as platforms for renewable energy generation.  The Maryland-based company makes a see-through solar energy generating coating technology for windows, particularly for application to tall towers and skyscrapers.

previous post, written when SolarWindow was called New Energy Technologies, discussed the company’s trouble with its SOLARWINDOW trademark application.

The word mark was rejected by the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (Board) as merely descriptive of the technology.  U.S. trademark law’s prohibits registration of marks that are “merely descriptive” of the goods or services.

The Board found that the definitions of the individual words “SOLAR” and “WINDOW” and the descriptive use of the combined term in the industry rendered the trademark merely descriptive.  The Board noted the effect of the mark on relevant consumers:

[I]t 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.

But SolarWindow’s branding bounced back, with a strategy of incorporating distinctive design elements to its trademark.  The result: diminished descriptiveness problems.  The company received a Notice of Allowance in Application No. 85/673,542 for its design mark with window elements:

SolarWindow Design Mark 1

A Notice of Allowance was also issued in Application No. 86/014,061 for the company’s design mark with square and circle:

SolarWindow Design Mark 2

SolarWindow has also filed Application No. 86/615,006 for another updated design mark with block and lines and Application No. 86/615,014 for the block and line design alone.

SolarWindow Technologies Design Mark

 

 

DW_Horizontal

DryWired, based in Los Angeles, makes liquid nanotechnology for windows that shields against energy loss by reducing heat transfer through the coated windows.

Sold under the brand name Liquid NanoTint, the translucent coating uses a combination of solvent borne tin-oxide based nano-particles and an inorganic adhesive binder.

It’s essentially nanotech insulation, forming a 10-micron thick self-leveling coat that bonds directly to glass and protects the inside of the building from the sun’s UV rays and reduces infrared heat transfer to keep the indoor environment cooler in summer and prevent heat loss in the winter.

DryWired owns Application No. 86/396,246 No. for the trademark LIQUID NANOTINT for “antimony tin oxide based liquid thermal insulation nanocoatings for glass.”  The application easily passed through examination and will be registered shortly.

Should you feel the need to go window shopping for some green window dressing this holiday season, you’ll know who to call.

Clean Tech in Court: Green Patent Complaint Update

May 20th, 2015

A number of new green patent complaints were filed in the last two months in the areas of energy storage, LED lighting, and smart grid (including lighting control).

 

Energy Storage

Power Regeneration, LLC v. Siemens Corporation et al.

A Texas company call Power Regeneration has accused Siemens of infringing a patent relating to energy storage systems.  Filed April 6, 2015 in federal court in Tyler, Texas, the complaint alleges that Siemens’ SITRAS energy storage systems infringe U.S. Patent No. 7,085,123 (‘123 Patent).

The ‘123 Patent is entitled “Power supply apparatus and power supply method” and directed to a power supply apparatus and method wherein the non-polar characteristics of the electrodes of a capacitor are used to improve the energy utilization efficiency of a battery through reciprocating switches of polarity connection between the battery and the capacitor.  The capacitor allows for reverse charging, and the apparatus delivers a stable power output.

LEDs

Koninklijke Philips N.V. et al. v. Troy-CSL Lighting, Inc.

On March 20, 2015, Philips sued Troy-CSL for infringement of seven patents relating to LEDs and LED lighting devices.  The complaint was filed in the U.S. District Court for the District of Massachusetts.

The patents-in-suit are:

U.S. Patent No. 6,013,988, entitled “Circuit arrangement, and signalling light provided with the circuit arrangement”

U.S. Patent No. 6,094,014, entitled “Circuit arrangement, and signaling light provided with the circuit arrangement”

U.S. Patent No. 6,250,774, entitled “Luminaire”

U.S. Patent No. 6,561,690, entitled “Luminaire based on the light emission of light-emitting diodes”

U.S. Patent No. 7,038,399, entitled “Methods and apparatus for providing power to lighting devices”

U.S. Patent No. 7,262,559, entitled “LEDs driver”

U.S. Patent No. 7,325,138, entitled “Methods and apparatus for providing power to lighting devices”

The accused products are Creative Systems Lighting (CSL) and Troy branded interior and exterior LED lighting products.  Philips has asserted several of these patents before (see previous posts, e.g., here and here).

 

Smart Grid

Endeavor MeshTech, Inc. v. Synapse Wireless, Inc.

Endeavor MeshTech, Inc. v. Tantalus Systems, Inc.

On March 25, 2015, Endeavor MeshTech (a wholly-owned subsidiary of patent monetization firm Endeavor IP) filed two more patent infringement complaints.  One was filed against Synapse Wireless in the U.S. District Court for the Northern District of Alabama (Endeavor v. Synapse), and the other against Tantalus Systems in the Eastern District of North Carolina (Endeavor v. Tantalus).

The complaints accuse each defendant of infringing three patents in a family – U.S. Patent Nos. 7,379,981,  8,700,749, and 8,855,019, each entitled “Wireless communication enabled meter and network.”  The patents-in-suit relate to a self-configuring wireless network including a number of vnodes and VGATES.

The accused products are systems, modules, devices, and services under Tantalus’s TUNet brand and Synapse’s SNAP brand.

 

Sunrise Technologies, Inc. v. Cimcon Lighting, Inc.

Sunrise Technologies, Inc. v. Selc Ireland Ltd.

On April 8, 2015, a Massachusetts company called Sunrise Technologies filed suit against two competitors (Sunrise v. Cimcon; Sunrise v. Selc) in the U.S. District Court for the District of Massachusetts.  The complaint asserts U.S. Patent No. 7,825, 793, entitled “Remote monitoring and control system” (‘793 Patent).

The ‘793 Patent is directed to a communication system that communicates information between an end user device and a remote end user via a communication node mounted on the upper part of a utility pole.  The communication node is capable of communicating with a nearby user device using a low-power communication protocol such as the Zigbee protocol and transmits the communication to the end user via a neighborhood mesh network of nodes mounted on utility poles.

The accused products are Cimcon’s iSLC’s line of intelligent wireless controllers and Selc’s Wireless Central Monitoring Systems.

 

Intuitive Building Controls, Inc. v. Control4 Corporation

Intuitive Building Controls, Inc. v. Acuity Brands, Inc.

Intuitive Building Controls, Inc. v. AMX LLC

Intuitive Building Controls, Inc. v. Crestron Electronics, Inc.

Intuitive Building Controls, Inc. v. United Technologies Corporation et al.

Texas-baseed Intuitive Building Controls (IBC) fired off five complaints asserting infringement of one or more of three patents relating to lighting control systems.  The lawsuits were all filed in federal court in Marshall, Texas on April 14, 2015.

The patents-in-suit are U.S. Patent Nos. 6,118,230, entitled “Lighting control system including server for receiving and processing lighting control requests”(‘230 Patent), 6,160,359, entitled “Apparatus for communicating with a remote computer to control an assigned lighting load” (‘359 Patent), and 5,945,993, entitled “Pictograph-based method and apparatus for controlling a plurality of lighting loads” (‘993 Patent).

The complaints against Control4 (Intuitive v. Control4), AMX (Intuitive v. AMX), and Crestron (Intuitive v. Crestron) assert all three patents.  The complaints against Acuity Brands (Intuitive v. Acuity) and United Technologies (Intuitive v. United Technologies) list only the ‘230 Patent.

Trade Secrets Lit Updates: Sinovel Challenges Summons Service and Philips Computer Fraud Claim Fails

April 29th, 2015

There are updates on a couple of green tech trade secrets cases, each involving allegations of misappropriation by Chinese companies and their employees.

First, as discussed in a previous post, the ongoing litigation between American Superconductor (AMSC) and Sinovel includes a criminal indictment against the Chinese wind turbine maker, two of its employees, and a former AMSC employee.

The defendants are charged with conspiracy to commit trade secret theft and criminal copyright infringement.  The technology involved is AMSC’s source code, software, equipment designs and technical drawings that relate to regulating the flow of electricity from wind turbines to the electricity grid

In a recent oral argument, Sinovel asked the U.S. Court of Appeals for the Seventh Circuit to reverse a lower court ruling and quash a summons, arguing it was improperly served on its U.S. subsidiary.  An article about the oral argument can be found here.

The second is a lawsuit brought by Koninklijke Philips and Philips Lumileds against Chinese competitor Elec-Tech International (ETI), several ETI subsidiaries, two corporate directors, and a former Lumileds employee named Dr. Gangyi Chen.  Philips alleged theft of trade secrets relating to high-energy LED lighting technology.

Elec-Tech moved to dismiss the complaint for a number of reasons, including an inadequately pleaded claim under the Computer Fraud and Abuse Act (CFAA), the only federal cause of action in the case.

In a recent decision, a federal court in San Jose, California dismissed Philips’ case, holding that the federal law claim under the CFAA could not be sustained.

The CFAA prohibits various computer crimes related to accessing computers without authorization in order to obtain information or data.  The problem for Philips was that Dr. Chen, who was alleged to have stolen the trade secret information, was authorized to access the Philips Lumileds network and did not exceed his authorized access while downloading the information prior to his resignation.

Specifically, the complaint was deficient because it lacked any allegation that someone without authorization accessed the confidential information:

By the Complaint’s own allegations, none of the CFAA Defendants accessed Lumileds’ information – Dr. Chen did, at a time when he was authorized to download this information.

While Dr. Chen may have misappropriated the information (a state law claim) and given it to the CFAA Defendants, the court held there is no “claim against those Defendants under the CFAA because they themselves did not hack Lumileds’ system.”

The court rejected Philips’ argument that Dr. Chen was an “agent” of the CFAA Defendants and they should be held liable based on their indirect, unauthorized access through Dr. Chen’s access, holding that the CFAA Defendants lack of access was fatal to the claim:

None of the CFAA Defendants entered or used Lumileds’ network.  At most, they encouraged Dr. Chen to do so, and stood to benefit from alleged misappropriation.  This action may give rise to a number of claims, but it does not support a theory of liability under the CFAA.

Expect this case to start up again in state court.

Pressing Matters: Inserting Indow Windows for Energy Efficiency

October 17th, 2014

Indow Windows (Indow) is a Portland, Oregon, company that has developed energy efficient window inserts.

Indow owns at least one U.S. Patent and a pending patent application covering its storm window technology.  U.S. Patent No. 8,272,178 (‘178 Patent) is entitled “Press-fit storm window” and directed to a storm window assembly comprising a transparent panel and tubes or gaskets for insertion into a window frame.

The tube (102) has a hollow interior and a channel groove that connects it to the panel (130).  The tube allows a pressure fit (350, 352, 354) into a window frame.

FIGS. 6(A)-6(C) show a molded tube corner piece which includes parallel plates (605, 615) with a gap (617).  Notch (643) facilitates better coverage and flexibility while find (641) provides improved adhesion and insulation.

FIG. 5 shows the corner piece being inserted into a window frame.

U.S. Patent Application Publication No. 2014/0174006 is a related application (continuation-in-part of a continuation-in-part) owned by Indow, which adds some new material to the original disclosure of the ‘178 Patent.

According to the ‘178 Patent, the invention is intended to supplement, rather than replace, existing windows:

The windows are not designed to replace existing windows, but rather to supplement them by creating a tight seal between the interior space or exterior space and the existing window.

The invention accomplishes this by creating outward pressure around the edge of the panel:

In one embodiment of the inventive press-fit storm window, a transparent panel of acrylic glass, such as PLEXIGLAS, glass, or other clear rigid material is held in place by the spring action created by a continuous (or partial, conceivably) round gasket (or other spring-like gasket), that creates outward pressure around the entire exterior edge of the clear panel (or the top, left, and right sides). The panel is held securely in place through a combination of this outward pressure and friction.

A press release emailed to me by the company notes that its compression tube requires no mounting hardware or track system.  Significantly, the press release cites a U.S. Department of Energy study which found that installation of Indow Windows in a home in Seattle “led to a more than 20 percent reduction in heating, ventilating and air-conditioning use.”

The windows have gotten some recognition – according to the press release it has won a number of awards including the 2014 Top Product of the Year Award in the Environmental Leader Product & Project Awards.

Optimizing Green Patent Protection: A Study in Energy Storage Service

December 3rd, 2013

 

Stem is a Millbrae, California, startup that sells and leases its battery energy storage system, which is marketed as a way to reduce consumers’ energy bills.  Specifically, the company makes a lithium-ion battery connected to analytics software that determines the best times to draw energy from the battery, thereby reducing electricity demand charges.

As more demand side energy efficiency / smart grid technologies are being offered as services (with leasing of equipment rather than sale), I’ve been thinking about what this might mean for green patent drafting.  One of the things patent prosecutors consider when preparing a patent application is how to draft the claims to ensnare as many different potential infringers in the chain of commerce as possible.

On this score, it is important to keep in mind the acts that can constitute infringement, viz., making, using, selling, offering for sale, and importing into the United States.

In conventional scenarios, the competitors that could be infringers are typically manufacturers that make, offer for sale, and sell competing products as well as the end users of the products.  There could be distributors in the chain too, but these may or may not be viable infringement targets because of the patent exhaustion doctrine, which holds that an unrestricted authorized sale of a patented product “exhausts” the patent holder’s rights to control the use and sale of the product.

Taking Stem’s battery energy storage as a service as an example, the company owns at least one U.S. patent and one pending patent application relating to its technology.  Both are entitled “High speed feedback adjustment of power charge / discharge from an energy storage system” and are Publication No. 2013/0207591 (‘591 Application), which is a continuation of U.S. Patent No. 8,350,521 (‘521 Patent).

Generally speaking, the ‘521 Patent and ‘591 Application are directed to smart charge systems and power management methods in which power demand load data and variable generator power data are synchronized in time and used to provide optimal charge/discharge instructions to an energy storage unit.

The simplest infringement scenario, of course, would be competing manufacturers that make and sell products that infringe the ‘521 Patent by their manufacturing and sales activities; there also could be end users who infringe by their use.  But what about a competitor that simply leases infringing systems to end users? 

This hypothetical competitor has situated itself at a spot in the commercial chain where it may be able to avoid a charge of direct infringement because it is not making, selling, offering for sale, or importing an infringing product.  Depending on how the claims of the relevant patent are written, this competitor may not be using the product either.  It’s conceivable that the end users may be the only direct infringers in this scenario.

However, the patentee may have a case for inducing infringement against a competing storage as a service lessor if the patent claims are drafted carefully.  Section 271(b) of the patent statute provides that anyone who “actively induces” infringement of a patent is an infringer.  This means that someone who himself does not infringe, but induces another to do so (e.g., by providing a product with advertising or instructions about an infringing use), may be held liable for inducement, a form of secondary liability for patent infringement.

The ‘521 Patent (and the ‘591 Application) contains both system and method claims:  claims directed to a smart charge system and claims directed to a method of power monitoring and management.  Independent claim 1 of the ‘521 patent is directed to a smart charge system including a premise sensor for measuring premise power information, a variable generator sensor for measuring generator power information, an energy storage unit, and a control computer that receives synchronized information from the sensors and energy storage unit and provides charge/discharge instructions.

It’s possible that an end user of the smart charge system might, through use of the system, be a direct infringer of claim 1 of the ‘521 Patent and the company leasing the system could be liable for inducing the infringement of the end user.

A better candidate for inducement is independent claim 10 of the ‘521 Patent because this is a method claim:

10. A method of power monitoring and management comprising:

providing, at a controller, a desired limit load;

receiving, at the controller, power demand load information;

receiving, at the controller, variable generator power information; and

transmitting, from the controller to an energy storage unit, a charge/discharge instruction based on the desired limit load, the power demand load information, and the variable generator power information.

Even if the end user isn’t using the whole system with all the components recited in claim 1, or if a different system is being used, the storage as a service lessor could still be liable for inducing infringement if it directs or instructs the end user to carry out the method steps recited in independent claim 10.

Having method claims in a patent provides better protection and greater flexibility for enforcement by exposing more players and activities in the commercial chain to potential infringement liability.  As clean tech companies continue to explore new business models, careful green patent claim drafting will become more important to ensure optimal protection.

 

 

Does Use of a Certification Mark Constitute an Express Warranty?

November 26th, 2013

es_logo.gif

Unlike ordinary trademarks, which indicate the commercial source of a product, certification marks communicate to the consumer that the products to which they are affixed meet certain manufacturing or quality standards.

One question that flows from this quality communication function is whether a manufacturer that affixes a certification mark to a product, by doing so, expressly warrants that the product meets the standards signaled by the certification mark.

This legal issue has begun to split the courts in the context of the Energy Star certification program for energy efficient appliances.  In the last year or so, an Ohio federal court dismissed a plaintiff’s express warranty claim based on affixation of the ENERGY STAR logo to a washing machine while a California federal court allowed a similar claim involving refrigerators to move forward.

The defendant was Whirlpool in both cases.  In the Ohio case, Savett v Whirlpool Corporation, the defendant moved to dismiss all of plaintiff’s claims, including a breach of express warranty.

The court granted Whirlpool’s motion on that claim because it found the ENERGY STAR logo does not in itself affirm any fact or promise:

[T]he Court finds that plaintiff fails to allege the existence of an express warranty because use of the ENERGY STAR logo is not an “affirmation of fact or promise” as alleged in this case . . . . the logo itself contains no assertion of fact or promise.  Unlike traditional express warranties where unambiguous promises or factual assertions are made, which are clearly understood on their own footing, any meaning conveyed by the logo requires independent knowledge.

The court also noted the lack of any precedent “in which a logo has . . . been held to constitute an express warranty.”

Contrast that with Dei Rossi v. Whirlpool Corporation, decided by the U.S. District Court for the Eastern District of California.  This case, discussed in a recent post, came out the other way.

The California court denied Whirlpool’s motion to dismiss the express warranty claim, holding that it was satisfied by affixation of the ENERGY STAR certification mark to the refrigerators.  This act by Whirlpool conferred a specific and express warranty because it communicated that the products met the Energy Star requirements:

Although Defendant alleges that this logo does not confer a specific and express warranty, Defendant does not provide any reason for affixing this logo to the product other than to signify that the product meets the Energy Star specifications.  Simply put, the Court cannot fathom any other reason for affixing the logo in such a manner. . . if Defendant’s intention was simply to signify that the product was energy efficient, it could have done so without affixing the Energy Star certification logo.  Thus, the Court finds that affixing this logo to the product satisfies the definition of an express warranty . . .

The court further found that the Plaintiffs adequately pleaded the exact terms of the warranty because the complaint noted that the Energy Star certification required the refrigerators to be at least 20% more efficient than minimum standard models.

Which is the better answer to this legal conundrum?  We may find some guidance by attempting to reconcile the conflicting results in these two cases.

It should be noted initially that we can’t reconcile these decisions based on any differences in the express warranty statutes in Ohio and California; the salient provision in each state is identical:

Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

One key factual difference is that the Ohio plaintiff apparently did not see the ENERGY STAR logo on the product or understand its meaning.  The Ohio court noted this in footnote 8 of its decision, stating it is notable that “plaintiff does not allege that he saw or understood any purported meaning of the logo.”

The California court did in fact distinguish its decision, at least in part, on this basis:

[U]nlike the plaintiff in Savett, in the instant case Plaintiffs have alleged that they independently understood the meaning of the logo and relied on it in deciding to purchase the products.

Ultimately, however, where a court comes out on this issue seems to depend on whether it attaches more importance to the motive of the manufacturer or the motive of the consumer.  That is, the California court found the manufacturer’s intention in affixing the ENERGY STAR logo to the product was to communicate that it meets the Energy Star specifications.

The Ohio court, by contrast, seemed swayed by the knowledge and purpose of the consumer, noting that “any meaning conveyed by the logo requires independent knowledge,” which the plaintiff in the suit notably lacked.

To be sure, there are a number of other causes of action consumers can bring against manufacturers that don’t satisfy green certification standards as advertised.  Nevertheless, I’m sure we’ll see more case law on this issue as green certification marks continue to proliferate and influence the purchasing decisions of environmentally conscious consumers.

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.

 

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.

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.