Archive for June, 2009

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Roadster Rage: Tesla Founder Sues CEO for Defamation; Alleges Tesla Breached Contracts

June 28th, 2009


One of the founders of Silicon Valley electric car startup Tesla Motors (Tesla), Martin Eberhard, has sued the company and its current CEO, Elon Musk, for libel, slander and allegedly breaching Mr. Eberhard’s severance agreement. 

The complaint, filed last month in San Mateo County Superior Court, further alleges that Tesla breached a Roadster Delivery Agreement providing that Eberhard was to receive the second Roadster that came off the production line by giving the No. 2 car to someone else. 

When Eberhard finally did receive a Roadster, the complaint says, it was damaged goods because it had been smashed into the back of a truck by a company employee doing an “endurance test” on the car.

According to the complaint, Musk forced Eberhard out of the company in November of 2008, and Tesla breached his severance agreement in February 2008 when it ceased the severance payments.

The defamation claims relate to Musk’s alleged statements regarding Eberhard’s status as founder and creator of Tesla and the work product he created for the company.  In particular, the complaint accuses Musk of falsely stating that Eberhard had been terminated by Tesla because of performance and management issues.

Eberhard also accuses Musk of falsely portraying himself as the founder of the company.  However, most of the statements listed in the complaint that state or suggest that Musk is the founder of Tesla Motors were made by media outlets; only a few appear to have been made by Musk himself.

The complaint tries to paint a picture of a broad pattern of misrepresentation by Musk with respect to his achievements and credentials, alleging that he has misrepresented his educational credentials by lying about attending Stanford University and having a physics degree from the University of Pennsylvania.

Among other things, Eberhard is seeking an injunction ordering Musk to stop making statements to the effect that he is a founder or creator of Tesla, that anyone other than Eberhard and co-founder Marc Tarpenning are the founders, or that Eberhard was responsible for the Roadster’s production delays or the company’s financial instability. 

Eberhard also wants the court to order Tesla and Musk to publish a public statement regarding those items and distribute it to major media outlets.

As the Greentech Media piece notes, while legal complaints often are dry, “this one has some gems.”

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Kruse Sues Again; Accuses Isuzu of Infringing Diesel Engine Patents

June 25th, 2009


In a previous post, I wrote about Kruse Technology Partnership’s (“Kruse”) infringement suit against DMAX, Ltd. (“DMAX”), an Ohio diesel engine manaufacturer formed as a joint venture between GM and Isuzu.  

In that case, Kruse alleges that DMAX’s Duramax engines infringe three related Kruse patents:  U.S. Patent Nos. 5,265,562 (“‘562 patent”), 6,058,904 (“‘904 patent”) and 6,405,704 (“‘704 patent”).

Last month Kruse filed a second lawsuit, this time targeting Isuzu.  The complaint (kruse-isuzu-complaint.pdf), filed in federal court in Santa Ana, California, asserts the same patents and alleges that Isuzu’s diesel engines infringe the patents.

The asserted patents are directed to Kruse’s “Limited Temperature Cycle” technology, which reduces combustion temperature, boosts thermal efficiency and reduces certain chemical emissions by diesel engines by injecting fuel in multiple increments.   

The patents describe an engine (10) comprising a block (12), a cylinder head (14) and a cylinder (16) having a piston (18).  Fuel is supplied to the engine (10) by a fuel injection system (36).  The engine (10) also includes an air induction system (26) having an air intake valve (28) in the cylinder head (14).


The process maintains a proper fuel/air mix in the engine to reduce the temperature and the work of compression.  According to the ‘904 patent, the fuel injection system (36) precisely regulates this fuel/air mixture for combustion and exhaust emission control.

The complaint requests that the court issue a permanent injunction against Isuzu and award Kruse compensatory damages for the alleged infringement.

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Wanna Buy A Wind Power Patent? Just Go to eBay

June 21st, 2009


Fellow green patent enthusiast Stu Soffer brought this interesting item to my attention (Thanks Stu!):  an eBay auction for the rights to a small wind turbine patent.  The patent is New Zealand Patent No. 540102, and includes the international rights to PCT Application Pub. No. WO 2006/123951 (‘951 application).

The ‘951 application is directed to a wind turbine having a rotor (1) having blades, the rotor rotatably mounted about the axis of rotor shaft (2) within housing (3).  Directional louvers, or shutters (15, 17), direct incident airflow to enhance the venturi effect and reduce drag for maximum power generation.


Though at first glance it appears the seller is only auctioning the rights to the patent application, the description of the transaction reveals that a purchaser would get substantially more than that (or less, depending on your point of view).  In fact, the purchaser would also buy an obligation to enter into a partnership with the inventor:

What is being sold is the US rights to patent protection vested in a company substantially owned by the purchaser. The purchaser will have written authority from the inventor to assign the US intellectual property rights to the new company. All the inventor requires apart from the purchase price is a small shareholding of 10% of the shares in the new US company as a silent partner that the buyer will create by agreement, and acknowledgement that the invention was created by the inventor at all times. 

The seller is offering free shipping, although what this means in this context is not entirely clear.  Would the buyer receive in the mail the patent application?  A prototype of the invention?  An executed assignment?

The opening bid price is USD $27,500.  The auction ends on June 24, 2009, and there have been no bids so far.

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New Prius Has Silicon Sun Roof By Kyocera

June 18th, 2009


Kyocera recently announced that it is supplying solar modules for Toyota’s new solar ventilation system, an optional feature on the new Prius introduced in Japan last month.

The modules will be made using the company’s Reactive Ion Etching (RIE) technology, which creates microscopic ridges on the surface of the solar cell using plasma and reductive gases.  According to Kyocera’s press release, the ridges enhance output and conversion efficiency by facilitating better absorption of sunlight. 

The process also yields a “high level of aesthetic quality” and “stylish appearance” by providing a uniform dark navy blue color.

This RIE process is covered by Kyocera’s U.S. Patent No. 7,128,975 (‘975 patent), entitled “Multicrystalline silicon substrate and process for roughening surface thereof.”  The ‘975 patent is directed to a multicrystalline silicon substrate and a process for roughening the substrate’s surface using an alkaline aqueous solution etching step and a dry etching step.

According to the ‘975 patent, this process overcomes the challenge of forming uniform textures in the irregular crystal orientation of multicrystalline substrates and reduces reflectance:

By this method, fine textures can be uniformly formed independent of the irregular orientation of the crystals of multicrystalline silicon. In particular, reflectance can be more effectively reduced in solar cells using multicrystalline silicon.

The ‘975 patent describes a silicon substrate (1) formed by the patented RIE process as having textures (2), or fine textures (22).  According to the ‘975 patent, the ratio of line a (connecting individual peaks of the fine textures (22)) and line b (connecting the two end points 23 and 24) is less than 1.1, which indicates that the heights of the peaks of the fine textures (22) are even.


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Congress Backs Strong Green Patents in Climate Change Talks

June 14th, 2009

The U.S. House of Representatives voted unanimously last week to pass an amendment to the Foreign Relations Authorization Act that establishes U.S. policy in opposition to any global climate change treaty that would weaken intellectual property rights.  (see the National Journal article here)

The bill increases resources and training for enforcement of intellectual property rights.  Under the bill, the U.S. Secretary of State would appoint ten new IP attaches to serve in U.S. embassies or other diplomatic missions.  The bill gives priority placement to countries with particularly poor IP regimes. 

The amendment, offered by Reps. Rick Larsen (D-Wash.) and Mark Kirk (R-Ill.), and passed 432-0, provides an unequivocal statement that U.S. policy favors strong IP rights for clean technologies as part of any climate change treaty:

it shall be the policy of the United States that, with respect to the United Nations Framework Convention on Climate Change, the President, the Secretary of State and the Permanent Representative of the United States to the United Nations should prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of intellectual property rights related to energy or environmental technology. . .

The amendment is a timely policy message as diplomats are preparing for key negotiations as part of the U.N. Framework Convention on Climate Change (UNFCCC) in Copenhagen in December.

The amendment comes on the heels of the launch of the IDEA Coalition, an alliance of business and industry leaders formed to educate policymakers and the public about the importance of strong IP protections in promoting clean tech innovation. 

One of the Coalition’s first orders of business was to urge Congress and the Obama administration to maintain strong IP protection for clean tech innovators as the U.S. engages in international talks related to the UNFCCC.  Looks like a quick success for the Coalition right out of the box. 

According to Carl Horton, Chief IP Counsel for GE, the amendment was in large part a result of the IDEA Coalition’s activities.  He told me the Coalition briefed Congressmen Larsen and Kirk “regarding the risk to IP protection for green technology at the UNFCCC negotiations.”

Advocates of strong IP protection are pleased with the Larsen amendment and the message it sends about the U.S. position on IP rights in clean technologies.  Horton thinks the amendment “sends a powerful message about the necessity for strong IP protection to drive investment and innovation in new green technologies and the need to endorse such IP protection as the means to protect the US jobs created by such green technologies.”

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OriginOil Provides Full Service Algae Support

June 11th, 2009


OriginOil, Inc. (OriginOil) is a Los Angeles company developing a full range of technologies to improve the processes of algae growth and oil extraction.  OriginOil’s methods may substantially reduce the amount of energy necessary to extract oil from algae (see the Matter Network story here).

Unlike some algae biodiesel companies who only focus on the extraction step, OriginOil’s innovations span a much broader approach.  The company’s suite of technologies is covered by several pending patent applications, which “apply to the whole life cycle of algae production, not just extraction” according to OriginOil’s President and CEO Riggs Eckelberry. 

OriginOil’s U.S. Patent Application Pub. No. 2009/0029445 (‘445 application), is entitled “Algae growth system for oil production” and is directed to systems for growth and processing of microorganisms such as micro-algae. 

The systems attempt to duplicate the optimum natural growth promoting environment for algae, including thorough exposure to carbon dioxide, growth promoting admixtures, exposure to light and extraction.


The key to this Quantum Fracturing process is breaking down water, carbon dioxide and other nutrients into micron-sized bubbles.  The increased surface area of these bubbles facilitates high absorption of carbon dioxide and nutrients by micro-algae during the growth phase.

Several as yet unpublished patent applications are directed to other aspects of OriginOil’s algae technology, including:

an application filed in 2008 directed to the Helix Bioreactor, which optimizes delivery of light to algae by providing light at closely spaced intervals within a photobioreactor;

an application filed in 2008 directed to the company’s Modular and Scalable Growth System, which facilitates large scale algae production through stacking of multiple Helix Bioreactors into an integrated network; and

an application filed this year directed to a Single-step Extraction Process, which combines Quantum Fracturing with electromagnetics and pH modification to break down cell walls and extract oil in one step.

OriginOil recently announced the filing of an international or PCT patent application, which Mr. Eckelberry said combines several of the company’s technologies and is now its consolidated “lead application” going forward. 

With this holistic approach, Eckelberry said OriginOil’s business model is to help other companies make algae and provide full support for its customers producing the oil.  The company’s new partnerships include one with Desmet Ballestra and one with the U.S. Department of Energy’s Idaho National Laboratory, wherein the latter will team with OriginOil on algae scalability issues.

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Epistar Infringes But Can Challenge Validity of Philips LED Patent

June 7th, 2009


Philips Lumileds Lighting Co. (Lumileds) and Taiwanese LED maker Epistar Corp. (Epistar) have a history of litigation involving Lumileds’ U.S. Patent No. 5,008,718 (‘718 patent).

The ‘718 patent is entitled “Light-emitting diode with an electrically conductive window” and is directed to an LED with a transparent window layer on top of the active semiconductor layers.

The transparent window layer (24) overlays the LED’s active p-n junction layers (21, 22, 23) of AlGaInP.  The transparent window layer (24) is made of a different semiconductor than the active layers, with a low resistivity and a bandgap greater than the active layers.


As a result, the window layer (24) is transparent to light emitted by the p-n junction layers and therefore generates more uniform light emission and improves the efficiency of the LED.

In 2005 Lumileds filed suit against Epistar and United Epitaxy Company (UEC) in the U.S. International Trade Commission (ITC) alleging infringement of the ‘718 patent.  Later that year, UEC merged into Epistar and ceased to exist as a separate entity.

Epistar has continued to manufacture certain UEC LED products, as well as its own AlGaInP LEDs.

Prior to the merger, back in 2001, UEC had settled another lawsuit with Lumileds involving the ‘718 patent, and the settlment agreement provided that UEC and its successors could not challenge the validity of the patent.

A third lawsuit between Lumileds and Epistar in 2003-04 also ended with a settlement agreement.  Under that agreement, Epistar took a license to make particular LEDs, and with respect to those products, promised not to challenge the validity of the ‘718 patent. 

The agreement was silent with respect to non-licensed products, preserving Epistar’s right to challenge the ‘718 patent’s validity if Lumileds were to sue Epistar for infringement of other products in the future.

In the ITC case Lumileds moved for a summary determination that Epistar could not challenge the validity of the ‘718 patent and argued that the merger with UEC bound Epistar to the UEC settlement agreement, which prohibited such a challenge.  

An ITC administrative law judge (ALJ) granted the motion, ruling that the UEC-Lumileds agreement precluded Epistar from contesting the validity of the ‘718 patent with respect to any UEC or Epistar product.

Although the ALJ later acknowledged there were two separate settlement agreements at issue, by that time the ALJ found it was procedurally too late to change his ruling.

Epistar was subsequently found liable for infringement of the ‘718 patent, and the ITC issued a limited exclusion order excluding from entry into the U.S. Epistar’s infringing LED products.  The exclusion order included downstream packaged LEDs containing the infringing LEDs regardless of the manufacturer or importer of these products.

Epistar appealed to the U.S. Court of Appeals for the Federal Circuit.  Last month, the Federal Circuit reversed the ITC rulings on the validity preclusion and the exclusion order.

The Federal Circuit discussed the two separate settlement agreements of UEC and Epistar and held that, with respect to its own products, Epistar could challenge the validity of the ‘718 patent:

This court finds that Epistar’s right to contest validity of the ‘718 patent with respect to its products is governed by its own separate agreement with Lumileds. . . .When Lumileds settled with Epistar, the settlement agreement addressed only the licensed products and thereby preserved Epistar’s unrestricted right to contest the validity of the patent in other contexts.  This court cannot allow Lumileds to escape its agreements due to a merger that does not disturb its contract with Epistar.

Epistar could be precluded from challenging validity only as to the UEC products:

Epistar (as successor to UEC) may not contest the validity of the ‘718 patent with respect to the UEC products that it inherited in the merger.

The Federal Circuit also vacated the exclusion order and instructed the ITC to reconsider the order based on recent precedent holding that the ITC lacks statutory authority to exclude imported products by entities not named as respondents before the ITC. 

The court found that Epistar does not itself manufacture downstream products; instead other foreign entities incorporate the infringing LEDs in packaged LEDs and LED boards for importation into the U.S.

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Metabolix Bioplastics Are Cleanly Made and Biodegrade

June 4th, 2009


Metabolix is a Massachusetts biotech company that makes alternatives to petrochemical-based plastics. 

Metabolix’s bioplastic technology includes polymers known as polyhydroxyalkanoates (PHA) and enzymes that make these polymers.

According to this Seeking Alpha article, PHA are “linear polyesters produced in nature by bacterial fermentation of sugar and lipids.”  In other words, PHA are made by microoorganisms through photosynthesis.

CleanTechnica reports that Metabolix is working with the Strategic Environmental Research and Development Program to develop its bioplastic for military use in food packaging.

The company also formed a joint venture with Archer Daniels Midland called Telles to market its bioplastic, which it sells under the brand name Mirel.

Some of Metabolix’s key patents and applications include U.S. Patent Nos. 6,620,869 (‘869 patent), 7,202,064 (‘064 patent), 7,208,535 (‘535 patent) and U.S. Patent Application Pub. No. 2008/0275208 (‘208 application), which are directed to PHA biopolymer compositions.

These inventions include improved thin film formation through PHA pellet compositions (‘869 patent and ‘535 patent) and methods of making PHA compositions that can be readily extended to incorporate additional monomers by mutagenesis or genetic engineering of PHA-producing microorganisms (‘064 patent and ‘208 application).

Metabolix recently announced that its Mirel bioplastic resins have received the OK Compost Home certification (provided by Belgian inspection and certification firm Vincotte), which means that the materials will biodegrade in home composting systems of varying temperatures. 


Its materials previously received the OK Compost certification for industrial composting.  (read about the Vincotte OK Compost certifications: vincotte_cb_05.pdf) 

Unfortunately, Mirel bioplastics are not yet cost competitive with plastics made from petroleum (Mirel sells at $1.50 per pound versus 70 cents per pound for traditional plastics), but the company believes that many customers will pay a premium for its cleanly made, compostable materials, especially in the disposable plastics market.