Archive for September, 2013

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Aussie “Soccer Ball” Scores Twice with Wave Energy and Fresh Water

September 30th, 2013

Carnegie Wave Energy (Carnegie) is an Australian company that develops and commercializes wave energy technology that can not only provide power but also desalinated water.

Carnegie says it will build the world’s first wave-powered desalination plant that will generate energy as well as fresh water (see CleanTechnica article here).

The company’s CETO technology includes a buoyant acuator design rated at 240kW.  The technology is covered by at least one international, or PCT, patent application, Publication No. WO 2009/076712 (‘712 Application).

Entitled “Buoyant actuator,” the ‘712 Application is directed to a wave energy apparatus (11) including a buoyant actuator (19) with an exterior surface and an interior that is substantially hollow except for a buoyant internal support structure. 

A major advantage of the technology, according to the ‘712 Application is that the substantially hollow nature of the buoyant actuator makes it “lightweight compared to prior art floats.”

The exterior surface comprises a plurality of facets (101), which are tessellated to “create the generally spherical shape (somewhat similar to that of a soccer ball)…”  According to the ‘712 Application, one embodiment of the apparatus has 36 facets, of which 12 are pentagonal and 24 are hexagonal. 

The apparatus is installed for operation in a body of seawater (12) having a water surface (13) and a seabed (14), and exterior surface of the apparatus has a plurality of openings for fluid flow between the hollow interior and the surrounding body of water.

Pumps (15) are anchored within the body of water (12), attached to a base (17) anchored to the seabed (14), and operatively connected to the buoyant actuator (19) by a coupling (21) including a tether (23).  Each pump (15) is activated by movement of the buoyant actuator (19) in response to wave motion.

The pumps (15) provide high pressure water, which can be used for power generation and/or desalination.  Indeed, Carnegie’s desalination pilot project at the Garden Island naval base near Perth will use the high pressure water to operate reverse osmosis desalination technology.

This will be a world first, according to the CleanTechnica piece, and an elegant clean tech double bill.



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Chinese Eco-mark Madness and Related News

September 26th, 2013

There have been a few recent developments in Chinese eco-marks (my term for marks used in connection with green goods or services), both in China and in the United States.

Starting with by far the weirdest news item, a small Chinese electric car technology company called Hong Yuan Lan Xiang (HYLX) has filed a trademark application in China to register the name SNOWDEN for for its “top secret technologies and products” (see the Green Car Reports article here).

These include new removable batteries, technologies for increased charging speeds, and technologies for remodeling conventional cars into electric-capable models.  Apparently, the company thinks the top secret nature of its technologies makes Snowden the perfect brand name for them.

Also in China, U.S. electric carmaker Tesla Motors has encountered what appears to be a cybersquatter and prior registrant of the TESLA mark.  According to this Reuters story, Zhan Baosheng owns a Chinese trademark registration for TESLA, runs a web site using the Tesla China domain (, and operates a Tesla-branded account on the Chinese microblog site Sina Weibo.

Zhan’s web site includes a Tesla brand logo that is almost identical to that of Tesla Motors and shows a car quite unlike any of Tesla Motors’ vehicles.  It seems likely that Tesla Motors will have to buy out Zhan to clear the way for its trademark rights and branding efforts in China.

Finally, an eco-mark infringement suit covered in a previous post has come to a close (at least in the trial court).  This case pitted  SunEarth (owned and operated by the Solaray Corporation since 1992), which manufactures and sells solar thermal collectors and related components, against Ningbo Solar Electric Power (Ningbo) and its U.S. subsidiary, which was selling solar photovoltaics under the SUN-EARTH (and Design) mark:

Ningbo owns U.S. Trademark Registration No. 3,886,941 (’941 Registration), registered in 2010, and the company changed its name to Sun-Earth Solar Power (SESP) the same year.

After filing a proceeding in the USPTO Trademark Trial and Appeal Board to cancel the ’941 Registration and trying to negotiate a settlement with Ningbo, SunEarth sued for trademark infringement, cancellation of the registration, and other claims in the Northern District of California in October 2011.

In a recent decision, the court held that Ningbo was liable for trademark infringement and ordered the USPTO to cancel the ‘941 Registration.  Although Ningbo’s trademark registration was entitled to a presumption of validity, SunEarth successfully rebutted the presumption by demonstrating prior use of the mark, a fact conceded by Ningbo:

Plaintiffs have introduced evidence that they have used the term SunEarth as a trademark, trade name and service mark in the United States since 1978.  Defendants have conceded that Plaintiffs have “common law prior user rights in several states of the United States to its SunEarth mark for solar thermal systems.”

Although Ningbo disputed the geographic extent of SunEarth’s common law prior user rights, the court found that SunEarth had established “legally sufficient national market penetration over their trade name and mark” prior to Ningbo’s first use of the mark.

From there, it was simply a matter of conducting a routine likelihood of confusion analysis, which favored SunEarth due to the similarity of the marks, the proximity of the goods (solar photovoltaics and solar collectors), and the similar trade channels such as solar product shows, specialty retailers, and trade magazines.

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Penn State Conference to Explore Law’s Role in Biz Sustainability

September 23rd, 2013


I will be speaking at a conference on law and sustainability being held October 4-5, 2013 at Penn State University. 

Entitled “The Impact of Law and Regulation on Transitioning to Business Sustainability,”  this interdisciplinary symposium will bring together professors and industry experts in law, business, sociology, and public policy to discuss the role of law and regulation on business transitions to sustainable practices.

Some examples of sustainable practices increasingly employed by firms include the institutionalization of “whole life-cycle” analysis in marketing and product design, utilization of sustainable inputs and energy sources, tracking and reporting sustainability performance, attempting the valuation of future generation prosperity and happiness as a discounting mechanism, and integrating sustainability into firm culture and management goals.

The symposium web site notes that law and regulation can play an important role in facilitating implementation of such practices:

It is clear that law and regulation have an extremely important role to play in the transition to more sustainable business practices. Broadly stated, law can provide structure for firms responding to forces that pull transition by enabling sustainability leadership and competitive advantage through funding models, intellectual property rights and collaboration means. Additionally, law can work to push transition by compelling firms to act through regulatory structures, accounting and governance mechanisms.

I will be discussing my recent article – Greenwashing 2.0 – and arguing that the large, important, and heretofore unstudied new category of actionable misrepresentations about green tech products and services in business-to-business transactions could adversely affect sustainability efforts.

Kevin McKnight, Vice President, Environment, Health and Safety and Chief Sustainability at Alcoa, will deliver the keynote address at the luncheon on Friday, October 4th.

The conference is organized by Dan Cahoy, Professor of Business Law at Penn State’s Smeal College of Business, and Jamison Colburn, Professor of Law at Penn State Law School, and is sponsored by Penn State Law, Smeal College of Business, and the Penn State Social Science Research Institute.

More information about the conference can be found here, and you can register for the keynote address and luncheon here.

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CEPGI Q1 Report Shows Solar Patents Challenging Fuel Cell Lead

September 20th, 2013

The Heslin Rothenberg firm recently published its Clean Energy Patent Growth Index First Quarter 2013 Results.  Always an interesting read, the CEPGI is a quarterly publication that tracks grants of U.S. patents directed to clean energy technologies.

The biggest headline item of the Q1 2013 report is that fuel cell patents, the perennial leader, were nearly eclipsed by solar patents.  The number of granted fuel cell patents fell 28 from the 4th quarter of 2012 to 218, and there were 217 solar patents granted in Q1 2013.  The report comments:

This one patent difference is the smallest differential on record and suggests that Solar patents are poised to pass Fuel Cell patents.  This difference further suggests that investments in Solar technology R&D are reaching a pinnacle despite the slew of bankruptcies and consolidations in the Solar industry.

Wind patents were in third place, with 155, a 15 patent increase from the prior quarter, and Hybrid/Electric Vehicle patents were next with 81.  There were 48 Biofuel/Biomass patents granted (down 7 from the prior quarter).  Tidal patents were up three to 19, and geothermal patents were up one with 8.

The patentee with the most granted green patents in the first quarter of 2013 was General Motors, with 42 (34 fuel cell and 8 hybrid/electric vehicle).  Toyota, which was the 2012 leader, had 33 granted green patents.  GE was in third place with 30 patents (21 wind), and Mitsubishi took fourth place with 24 patents. 

Tied for fifth place were Honda and Samsung, with 22 patents each.  The rest of the top ten green patent holders included Vestas, Ford, Repower, Panasonic, and Hyundai.

The CEPGI reports also break out green patent data by geographic location.  Japan led ex-U.S. green patent holders and individual U.S. states with 151 patents granted in Q1, and  California was in second place with 82.  Germany was in third place and Michigan in fourth. 

The rest, in declining order, were Korea, New York state, Taiwan, Texas, Massachusetts, Colorado, Connecticut, Canada, France, New Jersey, and China.

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Can Ultrasolar’s Patented Pyrotechnics Boost Solar Cell Efficiency?

September 18th, 2013

Ultrasolar Technology is a Silicon Valley startup that has developed a pyroelectric device to boost solar cell efficiency.

We all know what “pyro” means, but what is “pyroelectric” all about?  According to this Greentech Media piece, which provides a helfpul overview of Ultrasolar’s methodology, “[p]yroelectricity converts heat to [an] electric field.”

One of Ultrasolar’s patents says this:

Pyroelectric materials may generate electrical energy (e.g., temporary voltage) when they are subjected to a change in temperature (e.g., heated or cooled).

More to the point, Ultrasolar’s technology draws “hot” electrons, which would normally lose their energy in the crystal structure of the solar cell, to the solar cell’s electrodes, thereby increasing the power produced from the cell (and the modules).

Ultrasolar owns at least five U.S. patents and applications relating to its pyroelectric technology.  According to Cleantech PatentEdge™, the company also owns two international, or PCT, applications.

U.S. Patent Application Publication No. 2011/0232734 is entitled “Pyroelectric solar technology apparatus and method” and directed to methods of increasing solar cell efficiency by depositing pyroelectric film on a cell (‘734 Application).

In its basic embodiment, the ‘734 Application describes a solar cell (102) having a transparent pyroelectric film (104) on its front surface and an opaque pyroelectric film (106) on its back surface.  The transparent pyroelectric film (104) may be applied onto a resistor (108) placed on the front surface of the cell, and an ohmic contact (110) placed on the transparent film (104).

According to the ‘734 Application, heating of the transparent pyroelectric film (104) and/or the opaque pyroelectric film (106) generates an electromotive force to bias the solar cell (102), thereby creating an open circuit voltage.  Moreover, heat from the sun or waste heat can cause current in the pyroelectric material (104, 106), thus increasing the total current of the solar cell (102).

According to U.S. Patent No. 8,324,783, the pyroelectric material may produce electric charge when subjected to a change in temperature over time.

The ‘734 Application explains that a temporal temperature gradient may be generated on the solar cell (102) through a standing infrared wave through the pyroelectric films or using pyroelectric films of varying specific heats and conductivities at a front and/or back of the solar cell.

What are these pyroelectric materials that seem so promising?  The ‘734 Application lists a bunch:

In one or more embodiments, transparent pyroelectric film 104 may comprise of a polyvinylidene fluoride, a tri-glycerin sulphate, a lead zirconatetitanate, a stannic titanate, a lithium tantalate, lithium niobate, aluminum nitride, titanium aluminum nitride, barium titanate, and/or barium strontium titanate. In one or more embodiments, opaquepyroelectric film 106 may comprise of a polyvinylidene fluoride, a tri-glycerin sulphate, a lead zirconatetitanate, a stannic titanate, a lithium tantalate, lithium niobate, aluminum nitride, titanium aluminum nitride, barium titanate, and/or barium strontium titanate.

The Greentech Media story says Ultrasolar is hoping to use these pyroelectric materials to boost solar module efficiency by 20 percent.

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Guest Post: US Leads, Europe Second as Wind Industry Spends $430M on Patent Protection

September 16th, 2013

Utility scale wind turbines have become so technologically advanced that they have improved the cost of energy (COE) of wind enough to compete with today’s conventional energy sources.  The ensuing reduction in COE has been the result of two governing forces: public policy and technological innovation.  

The technological trends which have emerged thus far and what might be in store for the future direction of wind turbine technology are explored here.  Policy and governmental R&D support will continue to be essential, and barriers to wind technology commercialization must be further broken down.

The patent landscape can shed significant insight into what technological trends have emerged thus far and what we might be able to infer for the future direction of wind turbine technology.  The patent landscape analytics, as well as extensive analysis of forward looking competitive intelligence, helps shape our view of future technology trends for the industry.

Figure 1 – Analysis Methodology


The patent search results comprise over 8,665 patent families and over 32,834 global filings from 67 different countries, dating back to the year 1916 when some of the first grid connected technology took root.  In addition to a component and technology keyword classification, an assessment of the relevance of each patent filing to the industry was performed and results were classified as Low, Medium, Medium/High, and High. 

The assessment of industry relevance indicates the degree to which the patent owner has asserted its patent rights in the past or would be able to seek licenses or otherwise enforce the patent due to usage of that patent protected technology by their competition.

Figure 2 – Industry Relevance Assessment


With the results grouped by assignee (or patent owner), it should come as no shock to industry watchers who are the top assignees for wind patent filings.  The list largely coincides with the top market share holders in the sector, and the chart below shows the number of patent families held by each company.

Figure 3 – Assignees (by Patent Family)


The industry relevance results indicate that only 0.8% of issued patents would have a high impact on the entire industry as a whole if those patents were universally asserted, with another 6.9% which may become relevant in the future depending on technology evolution and use.  The remaining 92.3% of filings are merely providing owners with basic defensive IP protection on technologies they use in their own product lines, but are not widely used in the industry.

Table 1 – Portfolio Evaluation and Industry Benchmarking (Top 10 Companies)


 All combined, the top 10 turbine OEM patent holders control 54.5% of patent filings.  Only 67 patent families out of 8,665 catalogued thus far comprise technology which is broadly applicable to products and services offered commercially within the industry worldwide.

General Electric Company (GE) controls not only the largest number of patent families, but the largest percentage of all wind-related IP with over 15% of patent filings.  While most companies are in-line with industry averages in terms of overall portfolio distribution of Low, Medium and High risk filings, GE’s High risk patents as a percentage of their overall portfolio is double the industry average at 1.8% vs. 0.8%.  Their portfolio also comprises over 35% of all High risk patents held by all companies throughout the industry.

Figure 4 – Global Wind IP Ownership Share


Also notable is that top-tier companies have a combined High and Medium/High set of filings which is above the industry average of 7.7%.  The top 10 control over 77% of Medium/High and 80% of High risk patent filings.  This confirms the strong correlation between investment in both R&D and IP protection and the commercial success of top-tier companies.  There is a strong link between the reduced CapEx and optimized energy production resulting from the development and introduction of those patent protected technologies.

The heat map of the filing dates for the patent filings confirms that the majority of filings have occurred in the past decade or so.  Comparison of this trend to turbine capacity additions worldwide is reflective of the shared influence of public policy on technology adoption and the subsequent cost efficiencies enabled by widespread deployment of wind turbines.

Please note that the 2012 – 2013 filings have not all yet published because of an 18 month window in which the patents are not made public.  Filing count up to 2011 is comprehensive.

Figure 5 – Wind Industry Patent Filing Trends (Patent Families)


Countries favored for filing include the US, Europe and China, with PCT applications being used heavily in the past few decades.  Collectively, the wind industry has spent nearly US$430M (in 2013 dollars) to date on patent protection across all jurisdictions since 1916.  Our projections indicate that the total will exceed US$1B by 2020 and $2B by 2030, with escalation of filing pace assumed to be consistent to that of the past 5 years.  Annual expenditure will top US$100M per year by 2022.

Figure 6 – Global Wind Industry Patent Filing Costs


Figure 7 – Global Wind Industry Patent Filings (Top 30 Countries)


Clearly IP capture will continue to be an important consideration for top tier wind companies who are developing and commercializing new products.


*Philip Totaro is the Principal at Totaro & Associates, a consulting firm focused on innovation strategy, competitive intelligence, product development and patent search.  To find out more, or get in touch please visit

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Clean Tech in Court: Green Patent Complaint Update

September 13th, 2013

There have been a number of green patent complaints filed in the last several weeks in the areas of biofuels, LEDs, and smart grid.



GS Cleantech Corporation v. Aemetis, Inc. et al.

GS Cleantech Corporation v. Homeland Energy Solutions, LLC

GS Cleantech Corporation v. Little Sioux Corn Processors, LLP

GS Cleantech Corporation v. Southwest Iowa Renewable Energy, LLC

GS recently fired off several new lawsuits involving its patented ethanol production processes.  A complaint filed August 14, 2013 in federal court in Fresno, California accused Aemetis Advanced Fuels of infringing U.S. Patent No. 7,601,858, entitled “Method of processing ethanol byproducts and related subsystems” (‘858 Patent).

The other lawsuits, against Southwest Iowa Renewable Energy (Southwest Iowa Complaint), Little Sioux Corn Processors (Little Sioux Complaint), and Homeland Energy Solutions (Homeland Energy Complaint), were filed in July and August in the U.S. District Court for the Northern District of Iowa. 

The asserted patents in these complaints are the ‘858 Patent, U.S. Patent Nos. 8,008,516 and 8,283,484, each entitled “Method of processing ethanol byproducts and related subsystems,” as well as U.S. Patent No. 8,008,517, entitled “Method of recovering oil from thin stillage.” 

GS also asserted U.S. Patent No. 8,168,037, entitled “Method and systems for enhancing oil recovery from ethanol production byproducts,” against Homeland Energy Solutions. 

The patents relate to methods of recovering oil from byproducts of ethanol production using the process of dry milling, which creates a waste stream comprised of byproducts called whole stillage.

GS has been on an aggressive patent enforcement campaign over the last several years.  Multiple actions were consolidated in the Southern District of Indiana, where the asserted patents were construed and re-construed.



Trustees of Boston University v. Hewlett-Packard Co.

Trustees of Boston University v. Vyrian, Inc.

Trustees of Boston University v. Sierra IC, Inc.

In August Boston University initiated some new lawsuits in federal court in Boston, continuing its patent enforcement campaign against various LED makers and electronics manufacturers.  The complaints again assert U.S. Patent No. 5,686,738 (’738 Patent) (HP Complaint; Vyrian Complaint; Sierra Complaint) . 

The ’738 Patent is entitled “Highly insulated monocrystalline gallium nitride thin films” and directed to gallium nitride semiconductor devices and methods of preparing highly insulating GaN single crystal films in a molecular beam epitaxial growth chamber.

The accused products are various LED devices and products.


Koninklijke Philips N.V. v. Altair Engineering, Inc. et al.

Philips sued Altair in federal court in U.S. District Court for the Western District of Wisconsin requesting a declaratory judgment that U.S. Patent No. 7,049,761 (’761 Patent) is invalid and unenforceable and that Philips’ LED-based replacement tube products do not infringe the patent. 

The ‘761 Patent is entitled “Light tube and power supply circuit” and directed to a light tube for a fluorescent light fixure having a plurality of light emitting diodes within the bulb.  According to the complaint, Altair has been trying to get Philips to take a license to the ‘761 Patent. 

The complaint also charges Altair with a Lanham Act violation for making false or misleading representations that the ‘761 is a “foundational” patent and only companies that have licensed the patent can make LED-based replacement tubes for fluorescent lighting fixtures.


Smart Grid

Emerson Electric Co. et al. v. Sipco LLC et al.

In what could prove to be an important case, Emerson is taking on a major clean tech non-practicing entity in Sipco LLC (and the closely related if not identical IPCo), an Atlanta patent licensing and assertion company that holds a number of patents, many relating to remote monitoring and control systems.

Filed in federal court in Atlanta on July 31, 2013, the complaint requests a declaratory judgment of invalidity and non-infringement of at least one claim of each of eight Sipco and IPCo patents.

The listed patents are U.S. Patent Nos. 6,437,692, 6,914,893, 7,103,511, 7,697,492, 8,013,732, 6,044,062, 6,249,516 and 8,000,314, which relate to remote monitoring and control systems.

According to the complaint, Emerson subsidiary Rosemount received a subpoena from Sipco requesting information on products including various wireless communication protocol-enable devices such as Zigbee, WirelessHART, ISA-100, Z-Wave, EnOcean and JenNet.

Sipco has sued utilities and various smart grid players that make smart meters, EV charging stations, building automation systems, and other energy management solutions (see, e.g., previous posts here, here, and here).


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Betting on Biobutanol and Battling Butamax: A Conversation with Gevo’s General Counsel

September 11th, 2013


One of the biggest green patent stories in the last few years has been the burgeoning biobutanol battle between Gevo and BP-DuPont joint venture Butamax Advanced Biofuels.

As with other industries, clean tech companies engage in PR around their patent matters, and this patent litigation is no different.  Part of this green patent war has been fought through PR. 

So when I was offered the opportunity to speak with Brett Lund, Gevo’s Executive Vice President and General Counsel, about this litigation I jumped at the chance.

For starters, this is a very important battle.  The email offer to interview Mr. Lund noted that it’s the “first-ever litigation in the industry of advanced biofuels, and it’s not just one patent – it’s a patent war over who can make isobutanol.”

Lund echoed this point, telling me there are just two main players for isobutanol (there is something called n-butanol, but it’s a less desirable fuel). 

Isobutanol is a very good petroleum substitute and the “ideal molecule” for both fuels and chemicals.  A a water insoluble 4-carbon molecule, it doesn’t get diluted and can be put in pipelines and directly into a refinery.

 Our conversation got into some of the details of the patents initially asserted by Butamax – U.S. Patent Nos. 7,993,889 (’889 Patent) and  7,851,188 (’188 Patent). 

Lund said the patents relate to a naturally occurring isobutanol pathway that has “been around forever.”  Known for over 50 years, Lund told me this 5-step pathway can be used to make very small quantities of isobutanol for things like sake or beer, but it’s hard to produce in large quantities suitable for fuel use.

Gevo’s patents, on the other hand, relate to new, non-naturally occurring pathways that boost isobutanol production.

Lund and I also discussed Gevo’s counterclaims for infringement of U.S. Patent Nos. 8,017,375 (’375 Patent) and 8,017,376 (’376 Patent), directed to recombinant yeast that harbor a variety of genetic modifications helpful for isobutanol production.

While Gevo believes that Butamax’s design-arounds of the ‘375 and ‘376 Patents are covered under the doctrine of equivalents (DOE), a recent court decision held otherwise, granting Butamax’s motion of summary judgment that it does not infringe the patents, literally or under the DOE.

When asked why the proactive PR, Lund noted that Gevo is a public company with lots of investors and partners and “we want people to know the truth.”  He went on to say that Gevo highly regards patents and patent law.

With respect to Butamax’s patentsand applications, he told me Gevo knows about them, actively monitors them, and continues to be careful and cognizant not to use Butamax’s technology.

This important green patent war is likely to continue in the courtroom and the media.

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On Environmental Crimes and Greenwashing 2.0

September 9th, 2013

Incidents of greenwashing continue apace, increasingly in the realm of what I call Greenwashing 2.0, i.e., misrepresentations in business dealings relating to commercial clean tech equipment and services as opposed to marketing consumer products.

A Colorado company called Executive Recycling, Inc. (ERI) and some of its officers were recently sentenced to imprisonment and fines for fraud and international environmental crimes (see the DOJ’s Colorado office press release here).  ERI was in the business of recycling electronic waste such as cathode ray tubes (CRTs). 

According to the press release, ERI falsely represented that the company would dispose of all electronic waste in an environmentally friendly manner, in accordance with EPA, state and local laws and regulations, and would do so in the United States.

Contrary to its representations, the company sold the electronic waste it received to brokers for export overseas to China and other countries.  ERI did this on a significant scale, being listed as the exporter of record on over 300 exports between 2005 and 2008, including exports of more than 100,000 CRTs.

U.S. Attorney John Walsh noted both the harm to the environment and the damage to ERI’s customers caused by the fraudulent activity:

The defendants in this case not only caused actual harm to the environment by shipping electronic waste overseas for dumping, they defrauded their customers by falsely claiming to be disposing of that waste in an environmentally safe way.

This Greentech Media story reports that the FBI is investigating a number of fraud complaints against a Missouri solar installer called U.S. Solar. 

The central allegations involve abuses of the Missouri Public Service Commission’s solar rebate program, specifically, instances in which the installer allegedly pocketed rebate checks that were supposed to go to customers who had the solar energy systems installed.

In one case, U.S. Solar allegedly installed solar panels on a customer’s roof that an independent installer later assessed to be too shaded for solar energy production.  The independent installer said the roof has “a significant amount of shaded panels and a lot of exposed wires” and the system should be reinstalled.  The customer did not receive his rebate check.

U.S. Solar’s rebate abuses may have contributed to utility Kansas City Power and Light prematurely reaching the $21 million cap on solar rebates.  According to a Solar Energy Industry Association representative quoted in the Greentech Media piece, there should be a full investigation:

We need to determine the extent of U.S. Solar’s bad practices and how much they might have impacted the rebate program.

In my opinion, these cases are properly viewed as a greenwashing because they involve false or misleading statements and/or deceptive activity relating to the environmental benefits of a produce or service.  

Most discussions of greenwashing are unduly restricted to cases in which an individual consumer, a class of consumers, or a consumer watchdog such as the FTC challenges a company making false or misleading green claims about its products or services.

To put greenwashing in its proper context I think we should consider a wider range of cases, some of which are not immediately recognizable as instances of greenwashing, including civil cases brought by commercial consumers and criminal cases brought by governmental authorities.

From this broader vantage point, and keeping in mind the definition of greenwashing – making false or misleading claims about purportedly environmentally friendly products, services, or practices – we are able to recognize, observe and understand greenwashing in its proper context.

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Three Strikes and Aquatech’s Out as Court Bounces DJ Action Again

September 5th, 2013


A previous post discussed Aquatech‘s declaratory judgment (DJ) action against Water Systems and Veolia Water seeking a judgment that U.S. Patent No. 7,815,804 (‘804 Patent) is invalid and unenforceable and that Aquatech’s water filtration processes do not infringe the ’804 Patent.

The ‘804 Patent is entitled “Method for treating wastewater or produced water” and relates to Veolia’s OPUS process, a high-efficiency water purification technology that uses reverse osmosis to treat industrial waste streams.

Aquatech claims that the defendants have coerced and intimidated its potential partners and customers under threat of patent litigation, particularly with respect to Aquatech’s proposal to use its patented HERO water purification process at a power plant to be constructed by Bechtel and a proposal for a project at the Pio Pico Energy Center.

The court granted defendants’ motion to dismiss Aquatech’s initial complaint for lack of DJ jurisdiction, and subsequently dismissed its amended complaint on the same ground.  Aquatech filed a second amended complaint in March 2013, adding a claim for tortious interference.

Recently, the court for the third time granted defendants’ motion to dismiss for lack of DJ jurisdiction. 

To establish declaratory judgment jurisdiction there must be a “case or controversy,” that is “a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

According to the court, during the course of the legal proceedings the defendants executed four covenants not to sue, which formed, at least in part, the basis for all three of the court’s decisions.

The second covenant waived defendants’ right to assert any infringement claim related to the proposed Bechtel process.  The third covenant more broadly waived defendants’ right to assert that the patented HERO processes infringe the ‘804 Patent.  Finally, the fourth covenant waived defendants’ right to assert infringement claims with respect to the proposed Pio Pico Energy Center process.

The court found that defendants’ “multiple covenants not to sue preclude plaintiffs from maintaining declaratory judgment jurisdiction”  because covenants relate to Aquatech’s HERO process and demonstrate that the defendants believe the process does not infringe the patent-in-suit:

[T]he covenants at issue in this case are written and memorialized and cover both past, present, and future infringement claims with respect to the HERO process generally, and specifically the Bechtel project and Pio Pico Energy Center project processes….the covenants not to sue in this case merely affirm defendants’ repeated assertions that they do not believe that the HERO Patents infringe the ‘804 Patent.

Accordingly, the court dismissed Aquatech’s DJ claim of non-infringement because the covenants “moot[s] the basis for declaratory judgment relief.” 

With respect to Aquatech’s DJ claims that the ‘804 Patent is invalid and unenforceable, they also had to be dismissed because they are defenses to infringement:

 Without an active case or controversy with respect to defendants’ patent rights in the ‘804 Patent, plaintiffs’ claims of invalidity and unenforceability must also be dismissed.  Invalidity and unenforceability are defenses to a claim of infringement.  Until plaintiffs can establish that there is a real and immediate threat that defendants will take action to enforce their rights with respect to the ‘804 Patent, plaintiffs cannot continue to assert defenses to such claims.

This decision closes the case on infringement and related defenses for now.  Aquatech could bring another DJ action only if the defendants make new threats of infringement in derogation of the covenants not to sue.