Bluecar is a small electric car designed by the French conglomerate Bollore Group (Bollore) and produced in cooperation with Pininfarina, an Italian car design company.

Bollore applied for a U.S. trademark registration for BLUECAR for a number of different goods in a few classes, including electrically powered vehicles such as scooters, motorcycles, bicycles, trucks, trolleys, forklifts, boats and electric motors and transmission assemblies for electrically powered vehicles, in Class 12.

The examining attorney rejected the Class 12 goods on the ground that the mark BLUECAR is “merely descriptive” because the goods could encompass blue colored electric cars.

Bollore appealed the examining attorney’s final rejection to the Trademark Trial and Appeal Board (Board).  

On appeal, Bollore argued that use of the mark in connection with its environmentally friendly vehicles creates a double entendre because the word “blue” in BLUECAR evokes an image of cleaner, bluer skies:

Driving applicant’s vehicles, therefore, is a way for consumers to “live green” by reducing their carbon emissions and helping to make the skies cleaner and bluer. . . . Consumers would easily recognize this second connotation or meaning through the use of the word “blue.”

In support of its argument, Bollore cited instances of environmental organizations and clean energy companies that use the word “blue” such as the Blue Planet Foundation and Blue Sky Energy.

The Board agreed with Bollore and reversed the final rejection, finding the mark not merely descriptive of the cars but either arbitrary or suggestive of environmentally friendly vehicles:

potential purchasers will perceive BLUECAR, not as merely describing the cars, even the cars which may be blue.  Rather potential purchasers will perceive BLUECAR either as an arbitrary mark, or perhaps as a mark suggesting a clean, blue sky, that is, that the electric powered vehicles are environmentally friendly, as applicant argues.

Is green losing its monopoly as the color of environmentally friendly products and services?  Perhaps blue is the new green.

 

In attempts to ease the burden of obtaining information on green patents, the European Patent Office (EPO) and the UK Intellectual Property Office (UKIPO) each recently unveiled a clean technology patent database.

According to this article in Nature, the EPO’s database is set to launch this month through the espacenet web site (http://ep.espacenet.com/).  I recently checked espacenet but was unable to find a separate green patent database.

However, this post from the Patent Librarian blog discusses the EPO’s new classification scheme for green technologies, which includes a new category, identified as “Y02” in their classification system.  The scheme further includes the following two subclasses, along with further subgroups:

Y02C – Capture, Storage, Sequestration or Disposal of Greenhouse Gases

Y02E – Reduction of Greenhouse Gases Emission, Related to Energy Generation, Transmission or Distribution

I took the system for a quick, preliminary test ride by going to the Advanced Search page here and plugging in “Y02” in the European Classification box.  I got roughly 68,500 hits.

This press release discusses the UKIPO’s green patent database, which appears to be much more limited than the EPO tool.  Apparently, the UKIPO database (which can be found here) contains only those patent applications processed under the UKIPO’s “Green Channel” fast tracking program for clean tech inventions.

One hope with these initiatives is that they will facilitate transfer of green technologies, making it easier for green patent owners and prospective licensees to hook up.

Another is that the increased transparency regarding owners of green patents will aid negotiations in the international climate change treaty talks. 

In any event, more green patent information can only help green tech innovators and implementers.

Novozymes is a Danish biopharmaceutical company that develops enzymes for a variety of applications, including for use in production of biofuels.

The ink had barely dried on the company’s newly-issued U.S. Patent No. 7,713,723 (‘723 Patent) when Novozymes sued its Danish rival Danisco, along with Genencor International Wisconsin, for patent infringement.

The ‘723 Patent is entitled “Alpha amylase mutants with altered properties” and is directed to variants of certain alpha amylases that exhibit altered stability under high temperatures, low pH and other conditions.  The patented variants can be used for starch conversion in ethanol production.

According to the complaint (novozymes_complaint.pdf), filed in the Western District of Wisconsin, the defendants are infringing the ‘723 Patent by selling alpha amylase enzymes including Danisco’s GC358 product.

This is not the first time these Danish rivals have litigated a patent relating to enzymes for ethanol production.  In 2007, Danisco paid Novozymes $15.3 million to settle a lawsuit involving alleged infringement of a patent for the enzyme spezyme ethyl.

In previous posts (here, here and here) I’ve discussed GE’s wind power patent suits against its Japanese rival Mitsubishi. 

Mitsubishi struck back recently with a lawsuit of its own accusing GE of violating U.S. antitrust laws (see Mitsubishi’s press release here). 

The complaint (mitsubishi_antitrust_complaint.pdf), filed in federal court in Arkansas, alleges that GE has engaged in an anticompetitive scheme to monopolize the U.S. market for variable speed wind turbines.

According to the allegations, GE has been trying to intimidate Mitsubishi’s potential customers through “serial” baseless claims of patent infringement and public statements about Mitsubishi’s alleged infringement.

The complaint further alleges that GE’s intimidation tactics included advising Mitsubishi’s customers to take licenses to GE patents or risk infringement suits.  Sonia Williams, a Mitsubishi spokeswoman, said that GE was seeking “exorbitant licensing fees.” 

Mitsubishi claims that GE’s alleged scheme has worked as Mitsubishi’s $2 billion in annual U.S. sales of variable speed wind turbines has dropped to zero since initiation of the first patent infringement suit.

The alleged anticompetitive behavior centers on what Mitsubishi says are sham lawsuits asserting variable speed wind turbine patents that GE allegedly knew were invalid.

According to Mitsubishi, U.S. Patent No. 5,083,039 (‘039 Patent), which GE acquired in 2002 from Enron’s bankruptcy estate, is invalid in view of GE’s own prior art report on work the company did in the 1980’s as part of a U.S. government funded program.

This particular prior art was not previously raised despite two investigations in the U.S. International Trade Commission (ITC) involving the ‘039 Patent.  One reason for this is that the first ITC case, between Kenetech/Zond and Enercon, was based on claim 131 of the ‘039 Patent while Mitsubishi’s invalidity assertion involves claim 121.

Mitsubishi’s complaint also questions the validity and enforceability of other patents GE has asserted, including U.S. Patent Nos. 7,321,221 (‘221 Patent) and 6,921,985 (‘985 Patent). 

Specifically, Mitsubishi alleges that GE withheld material prior art from the U.S. Patent and Trademark Office during prosecution of the application that issued as the ‘221 Patent and knowingly omitted an inventor from the application that issued as the ‘985 Patent. 

The same day it filed the antitrust suit, Mitsubishi also fired off a patent infringement complaint (mitsubishi_complaint.pdf) in the Middle District of Florida, accusing GE of infringing U.S. Patent No. 7,452,185, entitled “Blade-pitch-angle control device and wind power generator.”

Interestingly, this is not the first green patent war that reached a climax in an antitrust suit.  After years of global litigation between LED rivals Nichia and Seoul Semiconductor (Seoul), Seoul accused Nichia of repeatedly filing baseless patent suits to squeeze it out of the market for white side-view LEDs (see my post here).

Shortly thereafter, Nichia and Seoul announced a global settlement. 

Perhaps green patent history will repeat itself.  The two new Mitsubishi suits may increase Mitsubishi’s leverage and lead the parties to the negotiating table. 

 

Last month, Ford Motor Company (Ford) and hybrid vehicle technology company Paice LLC (Paice) each sued the other over allegations that Ford’s Fusion hybrid infringes Paice’s U.S. Patent No. 5,343,970 (‘970 Patent).  The two lawsuits were filed the same day in different courts. 

Paice’s complaint (paice-ford_complaint.pdf), filed in the Eastern District of Texas, alleges that the Ford Fusion infringes at least claims 7-8, 25 and 39 of the ‘970 Patent. 

In particular, the complaint notes that the car uses a “variable voltage booster” to raise the voltage the battery supplies to the vehicle’s electric motor.

Ford filed its suit in the Eastern District of Michigan seeking a declaratory judgment (DJ) that Ford does not infringe the ‘970 Patent and that the patent is invalid. 

According to Ford’s complaint (ford-paice_complaint.pdf), in addition to the allegations made against the Fusion, the hybrid version of its Escape vehicle is also at risk of being targeted for infringement by Paice. 

Ford brought a similar DJ action against Paice back in 2005, but the case was dismissed for lack of DJ jurisdiction.  

Ford’s complaint mentions that case and points out that the Supreme Court and the Federal Circuit have since lowered the bar for establishing DJ jurisdiction by eliminating the necessity that there be a “reasonable apprehension of imminent suit.”

Ford is not the first automaker to face Paice and the ‘970 Patent; Paice has been relatively successful in enforcing the ‘970 Patent against Toyota.

In the fall of 2007, the Federal Circuit affirmed a jury verdict that the Toyota Prius, Highlander and Lexus SUV infringed two claims of the ‘970 Patent under the doctrine of equivalents. 

In that case Paice was awarded about $4.3 million in past damages and an ongoing royalty of $98 per infringing vehicle sold.

Toyota also is fighting to avoid an exclusion order that would bar importation of the third generation Prius and other hybrid vehicles Paice has accused of infringement in an investigation currently pending before the U.S. International Trade Commission (see previous posts here, here, here and here).

The ‘970 Patent is directed to a hybrid electric vehicle in which the drive train uses a microprocessor and a controllable torque transfer unit (28) that accepts torque input from both the vehicle’s internal combustion engine (ICE) and its electric motor.

The microprocessor controls the amount of torque provided by the ICE and the electric motor by locking or releasing bevel gears (94, 96, 98, 100) and holding torque inputs constant.