Though not an intellectual property matter, California’s recent battles with automakers and the U.S. Environmental Protection Agency (EPA) are worth a post because of the potential impact on clean vehicle technology. 

The federal Clean Air Act preempts state regulation of motor vehicle emissions but provides that California may apply to the EPA for a waiver to impose rules more stringent than the federal regulations.  Other states cannot apply for a waiver, but they may adopt any California standards enacted pursuant to its waiver.  In 2002 California passed Assembly Bill 1493, which required the California Air Resources Control Board (CARB) to enact regulations to achieve maximum reduction of greenhouse gas emissions from motor vehicles.  In 2004, CARB completed the regulations, which provide strict emissions standards for passenger cars and light duty trucks starting with the 2009 model year. 

Central Valley Chrysler-Jeep and the Association of International Automobile Manufacturers sued to block the regulations from taking effect.  The automakers’ main argument was based on the doctrine of preemption, which holds that a federal law trumps a conflicting or inconsistent state law.  Specifically, the automakers contended that even if California were granted a waiver by the EPA, its emissions standards would still be state regulations subject to preemption.  The court disagreed and held, consistent with the outcome of a similar case in Vermont, that state regulations enacted in accordance with the Clean Air Act’s waiver scheme become “federalized” and are therefore not subject to federal preemption.  Thus, California’s vehicle emissions standards were legally viable; the state just needed the green light from the EPA.

Unfortunately, the EPA denied California’s request for a waiver to enact its emissions regulations.  (read the story here)  The agency’s rationale is that greenhouse gases are not a local or regional air quality issue, but are “global in nature” so separate state standards are not needed.  The EPA pointed to the energy bill just signed by President Bush as part of a national solution to emissions problems.  It seems California has lost the latest battle over its emissions standards, but future litigation seems likely – the chair of the California Air Resources Board plans to “sue and sue again” until the EPA lets the state go forward.

Restaurant Technologies owns a patent for a waste cooking oil removal system.  The invention disclosed in U.S. Patent No. 5,249,511 can distribute and meter fresh oil, filter and recirculate used oil, and remove and store waste oil.  The system eliminates the need for manual handling of hot oil and the need to filter and dispose of the oil at selected intervals.  The system includes a filter station, a fryer station with a pair of valves, a supply station with a storage tank and an entrance and exit valve, and a waste station comprising a receptacle and an entrance and exit valve.  The stations are connected by piping, and a valve controller selects the pipe path among the stations.  The system can be operated electronically or manually; the operator either uses a microprocessor or a manual network of push-pull knobs to open and shut the appropriate valves and effect the desired operation.

Restaurant Technologies sued  and Klee’s Bar & Grill in U.S. District Court in New Jersey for using an allegedly infringing oil supply system.  The accused equipment was provided by Oilmatic, which came to the defense of its customers and sued Restaurant Technologies for unfair competition, antitrust violations and a declaratory judgment that its system did not infringe the ‘511 patent.  The Oilmatic system consists of a fresh oil tank, a waste oil tank, piping connected to pumps, a waste pipe nozzle and a dipstick nozzle to fill or remove cooking oil from a fryer vat.  The user controls operations by turning a switch on the dipstick nozzle to “fill”, “off” or “drain” and pressing a pump start/stop button.

The claims of the patent include the terms “control means” for operating the valves and selecting a pipe path and “means for metering oil” to the fryer.  These terms are written in accordance with the  “means-plus-function” provision of U.S. patent law, which permits a patentee to draft claims that recite a function to be performed without also reciting in the claims the structure needed to perform the function.  The patentee must disclose corresponding structure elsewhere in the patent.  A “means-plus-function” claim term is interpreted by determining which structure disclosed in the written description of the patent corresponds to the function recited in the patent claims.

The court determined that the corresponding structure for the “control means” includes microprocessor controls and the manual push-pull knob network.  The court held the Oilmatic system does not satisfy this claim element because it has no microprocessor controls and the dipstick switch and button is substantially different from Restaurant Technologies’ knob network.  The court found that the corresponding structure for the “means for metering oil” is a trigger valve with a nozzle which opens when the valve is squeezed.  Although the Oilmatic system uses a nozzle, it does not employ a squeezable valve.  Instead, oil is supplied to the fryer by pushing the start button on the dipstick to turn on the fresh oil pump, which operates by shaft rotation, not squeezing.  Therefore, the court found that the Oilmatic system does not infringe the ‘511 patent.   

Systems like those provided by Restaurant Technologies and Oilmatic could work synergistically with the business model of companies like New Leaf Biofuel, which collects waste cooking oil from restaurants and uses it as raw material for biodiesel production.  Waste oil recovery technology could help to increase the supply of raw materials for biodiesel and improve the pathway from the frying pan to the gas tank. 

The University of California-Davis has licensed plug-in hybrid vehicle technology to a Palo Alto start-up called Efficient Drivetrains. (read the story here and here) The licensed technology includes a fuel efficient “parallel” hybrid powertrain and a continuously variable transmission (CVT) control system that automatically selects the optimal power ratio and eliminates the need for gear shifting.  Efficient Drivetrains plans to partner with auto manufacturers to develop cars that can be recharged using a domestic power supply.  The license agreement was negotiated by the UC-Davis InnovationAccess Unit, which manages the University’s patent portfolio. 

The licensed technology was developed by Andrew Frank, a professor of mechanical and aeronautical engineering.  Dr. Frank is the named inventor on several U.S. patents relating to drive train system designs and energy management systems for hybrid electric vehicles and plug in hybrid vehicles and has published many articles on the subject. (see Dr. Frank’s publications here) 

An example of the CVT control system is disclosed in U.S. Patent No. 7,261,672.  The invention increases the efficiency of a vehicle’s acceleration and deceleration by controlling the rate of change of the gear ratio in a continuously variable transmission.  The system includes a controller that maps and relates various operational characteristics such as torque, speed, oil temperature, differential pressure between pulleys or clamping pressure to the level of each needed to achieve an optimal rate of change of ratio.  Once the optimum rate is selected, the characteristic is controlled to achieve that rate.  This system can be used in both traditional automobiles and hybrid electric vehicles.

An example of Dr. Frank’s “parallel” hybrid powertrain is described in U.S. Patent No. 6,809,429, which incorporates the idea of inserting an electric motor and its battery and controls between the vehicle’s engine and its transmission.  The electric motor is coupled to the input shaft of the CVT so it injects power in parallel with the vehicle’s drive train.   The system varies motor torque and rate of change of ratio to reduce the amount of power cycled by the batteries and maximize efficiency and vehicle performance.

A Matter Network story  reported yesterday that the European Union has adopted the Energy Star program that was the subject of my last post.  (read additional press coverage here)  In addition to registering the mark in the U.S., the U.S. Environmental Protection Agency has a European Community registration for the Energy Star mark for buildings, lighting products, consumer electronics, kitchen appliances, office equipment, etc.  The Matter Network story notes the significance of the EU adopting a U.S. program on environmental issues, an area where U.S. leadership has been lacking.  From an intellectual property perspective, it’s good to see the spread of a green certification mark.

Last week I learned that my office building is a green building that has received the EPA’s Energy Star certification.  Further investigation revealed that the U.S. Environmental Protection Agency owns a certification mark registration for its Energy Star design. energy-star-reg.JPG The Energy Star program seeks to aid investment in energy efficient products by providing information that consumers and investors can use to research and compare green product or project choices.  The EPA works together with the U.S. Department of Energy and manufacturers to award the Energy Star certification to products that meet particular energy savings standards.  This is an example of the type of green certification mark alluded to in my previous post that benefits consumers because of its objective, non-commercial goals. 

Earlier this month, Sprite Industries sued Culligan in the Central District of California for infringement of a patent on a shower filtration device.  The patent covers a combination showerhead and water filter held together in a single housing.  The housing has top and bottom mating halves that are either screwed together or threaded together, a water filter assembly secured in the housing and a baffle to direct the water flow through the filter.  The patented device reduces potential head bumps to the bather because it takes up less shower space than prior art devices, which typically required that a separate shower head be attached to a filter outlet.  The accused device is Culligan’s wall-mount filtered showerhead.  

Section 120 of the patent laws allows a patent applicant to file “continuation” applications from a previously filed “parent” application.  Each continuation in a patent “family” is entitled to the same filing date as the original application as long as the continuations specifically reference the prior applications in the family and disclose all of the same material.  Establishing a continuous chain of priority to an early filing date can be critical to preserving the “novelty” of an invention because, if the chain is broken, intervening prior art can render a “child” or “grandchild” patent invalid as “anticipated” (i.e., not novel).  A broken chain can also transform one’s own “grandparent” or parent application into prior art that could invalidate subsequent related patents or applications.

Through continuation practice, Zenon obtained a family of patents directed to water treatment and filtration systems.  Zenon sued U.S. Filter, alleging infringement of its grandchild patent.  The invention of the grandchild patent consists of two critical elements – a vertical skein and a gas distribution system.  The skein includes porous or semipermeable fibers potted in a solid resin and a collection means to collect permeate from the ends of the fibers.  The skein is submerged in water, the water flows into the fiber array, and the permeate is collected from the ends of the fibers.  For the process to work effectively, the surface of the fibers must be kept free of particulate matter to ensure the free flow of permeate over an extended period of time.  The gas distribution system generates a cleansing gas, and the resulting gas bubbles keep the fibers clean by scrubbing them and causing them to scrub against each other.

Both the grandparent and the grandchild patents disclosed the skein and the same type of gas distribution system.  However, the intervening child patent disclosed a different gas distribution system and incorporated by reference “relevant disclosures” only relating to the skein.  Because the child did not actually disclose the original gas distribution system and failed to incorporate by reference either the entire grandparent application or the original gas distribution system, the U.S. Court of Appeals for the Federal Circuit held that Zenon had lost its continuous chain of priority to the grandparent application.  The chain was broken by the deficient disclosure of the intervening child patent, and the grandparent patent was transformed into prior art that invalidated the grandchild.

Zenon’s “continuing” problems could have been avoided by doing one of two things: simply copying and pasting the entire disclosure of the grandparent application into the intervening child application, or expressly incorporating by reference the entire grandparent application in the child application.

 

PNC Financial Services (PNC) has more environmentally friendly buildings than any other company.  Forty-two of its buildings, including 15 of its bank branches, have received the U.S. Green Building Council Leadership in Energy and Environmental Design (LEED) certification.  Recently, PNC got a federal registration for the service mark GREEN BRANCH, turning the bank’s green ways into a brand.  (read the article here)

But PNC had to wage a three and a half year battle with the U.S. Patent & Trademark Office (PTO) to get the registration.  The trademark examiner twice rejected PNC’s application on the ground that GREEN BRANCH is merely “descriptive” of financial services offered in environmentally friendly facilities.  (a trademark can’t be registered with the PTO if it is a generic term or is descriptive of goods or services because that would restrict competitors from conveying information about their goods or services).  PNC appealed the examiner’s decision to the PTO’s Trademark Trial & Appeal Board.  The Board decided that PNC could have the registration for GREEN BRANCH because financial services are not typically associated with environmentally friendly characteristics, so the connection between the mark and PNC’s services is too remote for the mark to be merely descriptive.

PNC truly is a green company, but allowing registration of green trademarks as ordinary marks could lead to abuse and misleading brands.  The Matter Network story warns of the potential for “greenwashing” and reminds us to investigate claims of green business practices.  It seems that green trademarks may be better categorized as certification marks, which instead of indicating commercial source, certify that goods or services meet certain quality or manufacturing standards.  Certification marks are owned by the organizations that set the standards and used by companies that meet the standards and receive the certifications.  Indeed, the U.S. Green Building Council, a trade group that sets standards for green buildings, has applied for a certification mark for the LEED-certified seal it awards to buildings that meet those standards.

There’s an interesting story on matter network today about companies obtaining “green” trademarks to highlight their environmentally friendly business practices.  More on this later…

Welcome to Green Patent Blog, a site dedicated to discussion and analysis of intellectual property issues in clean technology. Although there a lot of blogs about intellectual property law and several about clean technology, I haven’t seen a site that places the ideas of this important industry into the context of the law that protects them. This blog seeks to do that by reporting on significant court decisions, highlighting interesting newly-issued patents and discussing other legal and technological developments in clean technology. I hope this site will provide some insight to those who develop and market clean tech and seek to protect the intellectual property rights in their technology. In Green Patent Blog I hope to contribute a little bit to protecting the ideas that are preserving the planet.