A previous post discussed one significant piece of the massive patent litigation between BP-DuPont joint venture Butamax and the advanced biofuels company Gevo.  The most recent prior thread of this case – which resembles a yo-yo in its narrative – was an appellate court win for Butamax.

Initially, the district court ruled for Gevo, granting its motion for summary judgment of non-infringement under the doctrine of equivalents of two Butamax patents - U.S. Patent Nos. 7,993,889 (’889 Patent) and  7,851,188 (’188 Patent).  The district also denied both parties’ motions on literal infringement and reached split decisions on validity of the patents.

Butamax appealed, and the Court of Appeals for the Federal Circuit then vacated both the grant of Gevo’s motion for summary judgement of non-infringement and the denial of Butamax’s motion for summary judgment.

Gevo petitioned to the U.S. Supreme Court to hear the case, and in a single, swift decision known as a GVR, the Supremes granted the petition, vacated the Federal Circuit decision, and remanded for further proceedings.  Grant-Vacate-Remand, hence GVR (read a blurb on the decision and GVR at the Patently-O blog here).

The Federal Circuit must now reconsider this case in light of the Supreme Court’s recent , which raised the standard for appellate review of district court factual determinations in patent claim construction rulings.

Previously, the Court of Appeals for the Federal Circuit used a “de novo” standard, which meant it could take a fresh look at the evidence on claim construction and make its own determination, which led to a high reversal rate.  After Teva, the Federal Circuit can reverse only where it finds “clear error” in the district court’s consideration of the facts in a claim construction decision.

So the yo-yo, in this thread of the patent war at least, swings back to Gevo with Butamax’s victory wiped out for the moment (see Gevo’s patent PR on the GVR decision here).

A previous post took a deep dive into two recently filed U.S. eco-mark applications filed by General Motors for the marks BOLT and CHEVROLET BOLT (Application Nos. 86357513 and 86357523 for “motor land vehicles, namely, automobiles”).

That post explained how GM could secure federal trademark registrations for these marks without ever actually using them in the United States.  The analysis provided support for some of the electric vehicle blogs, which speculated that GM might not actually intend to use the marks at all, but instead was merely using the trademark system to ward off competitors from using them.

We’ve been proven wrong.

At the Detroit Auto Show last month, GM unveiled the Chevrolet Bolt, an all-electric concept car coming to market in 2017.  The Bolt supposedly will have a 200-mile driving range (with a battery made by LG Chem), DC fast charging capability, and autonomous driving technology.  A recent GM Bolt article confirms production of the Bolt EV.

The 2017 planned production date probably impacted the timing of GM’s trademark application filings.

As discussed in my previous post, U.S. trademark applications filed on the basis of foreign filed applications, as the BOLT and CHEVROLET BOLT applications are (they are based on Brazilian trademark applications) can register in the U.S. by virtue of the foreign applications maturing to registration without the need to actually use the marks in the U.S.

However, without eventual use, typically within three years of the U.S. registration date, the U.S. registrations become vulnerable to cancellation for non-use of the marks.  So the owner of a U.S. trademark registration registered solely on the basis of a foreign or international registration (i.e., without use in the United States) cannot successfully enforce its trademark in a U.S. court.

The target production date of 2017 would put GM’s use of its BOLT and CHEVROLET BOLT trademarks comfortably within the three-year period after registration of its trademark applications.  So if GM sticks to its plans for the Chevy Bolt, it will have enforceable trademark rights after all.

In the wake of Tesla’s move to make its entire patent portfolio available via a blog post / covenant not to sue, Toyota made big news recently with a similar though more limited green patent proclamation of its own.

The automaker announced that its patents related to hydrogen fuel cell technology would be available for use without any royalties.

Toyota’s press release provides a general overview of the number and nature of the patents on offer:

Toyota will invite royalty-free use of approximately 5,680 fuel cell related patents held globally, including critical technologies developed for the new Toyota Mirai.  The list includes approximately 1,970 patents related to fuel cell stacks, 290 associated with high-pressure hydrogen tanks, 3,350 related to fuel cell system software control and 70 patents related to hydrogen production and supply.

While there appear to be no restrictions on hydrogen production and supply technologies (“patents for hydrogen production and supply will remain open for an unlimited duration”), the fuel cell patents are subject to an important caveat:

Patents related to fuel cell vehicles will be available for royalty-free licenses until the end of 2020.

This is a significant limitation for putative car makers that might elect to manufacture fuel cell vehicles based on Toyota’s patented technologies.  They would get six years of free use, but come January 1, 2021 it seems these automakers would become licensees obligated to pay royalties to Toyota.

And it’s difficult, if not impossible, to determine in advance the amount of royalties that would be owed at that time.  The royalty figure presumably would be negotiated between Toyota and each licensee and would vary depending on a number of factors including how many and which patents cover the licensee’s vehicles and the territories in which the licensor is making and selling the vehicles.

Furthermore, the licensee would be in a terrible negotiating position because it would have already invested substantial resources in developing, manufacturing, and marketing the licensed vehicles and might now be facing a patent infringement lawsuit if it doesn’t reach a deal with Toyota.  With this leverage, Toyota might be able to impose a higher royalty rate than would otherwise be justified.

This uncertainty around the eventual royalty rate could make even a putative royalty-free (for now) licensee think twice about using the patented technologies on offer.  It might actually make more long-term economic and business sense for a car company to independently develop its own fuel cell vehicle technology than to pay royalties to Toyota for the life of the offered patents.

Of course, this concern doesn’t apply to potential licensees of Toyota’s patented hydrogen production and supply technologies, which are royalty-free in perpetuity, and thus truly constitute a Toyota Hydrogen-Patent Commons.

But with respect to the fuel cell vehicle patents, you might get a free trial now, but you’ll eventually have to pay the piper.

Several new green patent complaints were filed in late 2014 (late October, November, and December) in the areas of environmental remediation, LEDs, green dry cleaning solvents, and smart grid.

Environmental Remediation

Peroxychem LLC v. Innovative Environmental Technologies, Inc.

Peroxychem sued Innovative Environmental Technologies (IET) for patent infringement in the Eastern District of Pennsylvania.  Filed November 7, 2014, the complaint alleges that IET infringes U.S. Patent No. 7,785,038 (‘038 Patent).

The ‘038 Patent is entitled “Oxidation of organic compounds” and directed to methods and compositions for treating organic compounds present in soil and groundwater involving the use of a composition comprising a solid state, water soluble peroxygen compound and zero valent iron.

According to the complaint, IET’s activities at a site called Hexcel in Lodi, New Jersey infringe the ‘038 Patent.

Neochloris, Inc. v. Emerson Process Management Power & Water Solutions, Inc. et al.

Filed December 3, 2014 in the U.S. District Court for the Northern District of Illinois, Neochloris’s complaint alleges that Emerson infringes U.S. Patent No. 6,845,336 (‘336 Patent).

The ‘336 Patent is entitled “Water treatment monitoring system” and directed to a monitoring system to receive data from water sensors, analyze water quality conditions inputted by the sensors and predict effluent water quality and process upsets.  The monitoring system includes an artificial neural network module to determine solutions to actual and potential water quality and process upsets.

LEDs

Harvatek Corporation v. Cree, Inc.

Just weeks after Cree sued Harvatek for infringement of six patents relating to white light LED technology, Harvatek responded with a lawsuit of its own.  Harvatek filed a complaint December 5, 2014 in the Northern District of California, asserting one patent against Cree.

Entitled “Reflection-type light-emitting module with high heat-dissipating and high light-generating efficiency,” U.S. Patent No. 8,079,737 is directed to a reflection-type light-emitting module that includes a reflection-type lampshade unit with an open casing and a reflective structure formed on the open casing.

The accused products include the Cree LRP-28 series LED lamp.

Green Dry Cleaning Solvents

GreenEarth Cleaning, L.L.C. v. Personal Touch Valet Wholesale Bronx, Inc.

Kansas City-based GreenEarth Cleaning holds a number of patents directed to its environmentally friendly dry cleaning methods and solvents.  On December 23, 2014, GreenEarth sued Personal Touch Valet for alleged infringement of U.S. Patent No. 5,942,007 (‘007 Patent).

The ‘007 Patent is directed to methods and systems of dry cleaning articles comprising several steps including immersing the articles to be dry cleaned in a dry cleaning fluid including a cyclic siloxane composition.

The complaint, filed in the U.S. District Court for the Western District of Missouri, alleges that Personal Touch Valet is in breach of a license agreement with GreenEarth and is infringing the ‘007 Patent and several other related patents.

GreenEarth previously sued Glyndon Laundry for patent and trademark infringement.

Smart Grid

Endeavor MeshTech, Inc. v. Leviton Manufacturing Co., Inc.

Endeavor MeshTech, Inc. v. Eaton Corporation

On October 31, 2014, Endeavor MeshTech (a wholly-owned subsidiary of patent monetization firm Endeavor IP) filed two more patent infringement complaints.  One was filed against Leviton Manufacturing in the U.S. District Court for the District of Delaware (Endeavor v. Leviton), and the other against Eaton in the Northern District of Ohio (Endeavor v. Eaton).

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.