For IP mavens who live in Southern California and those of you who may be in town next week, Thomas Jefferson School of Law in downtown San Diego is hosting a symposium on post-grant proceedings under the America Invents Act.

Entitled “Aftershocks of the AIA’s Post Grant Proceedings:  Its Advocates & Critics,” the symposium will be held on Friday, April 1, 2016.

In what has become a much anticipated annual event, Professor Randy Berholtz and his students have again put together a fabulous program on a hot button IP issue.

The symposium will focus on whether the new post-grant review process and other provisions of the AIA are actually solving the problems they were intended to solve and discuss other issues relating to the AIA:

[The AIA’s] intention to invalidate bad patents and encourage innovation for the benefit of the general public has solved some problems its predecessor has left in its wake.  However, the AIA is not without its own problems.  This project aims to present recommendations to close the gap in pursuing a fairer and expedited patent review systems.

There are too many speakers to list here, but notable ones include:

Gregg Anderson, Administrative Patent Judge for the USPTO

Hon. Cathy Ann Bencivengo, Judge of the U.S. District Court for the Southern District of California

Hon. Paul R. Michel (Ret.), U.S. Court of Appeals for the Federal Circuit

Gene Quinn, Patent Attorney and President of IPWatchdog.com

The event is approved for 6 hours of MCLE credit.  Full information on the symposium can be found here and registration info is here.

In one of the “Greenwashing 2.0” stories we’ve been following (see here and here), an individual recently was sentenced to over 10 years in jail for his role in running a fraudulent biofuel tax credits scheme.

A Texas federal judge sentenced Philip Joseph Rivkin to 121 months in prison and ordered him to pay more than $87 million in restitution and forfeit $51 million.

Last year, Rivkin, which is not the individual’s real name, pleaded guilty to making a false statement under the Clean Air Act and to mail fraud for his role in the scheme, which included attempts to defraud the U.S. Environmental Protection Agency (EPA).

In the plea agreement, he admitted that he falsely generated renewable fuel credits between July 2010 and July 2011 and sold them to oil companies and brokers, generating over $29 million.

Rivkin was indicted in 2014 for allegedly selling fraudulent renewable identification numbers (RINs).  The indictment alleged that an individual using the name Philip Joseph Rivkin controlled and operated Green Diesel LLC and claimed that the company produced millions of gallons of biodiesel at its Houston facility then generated and sold about 45 million RINs based on the claim.

However, according to the indictment, Green Diesel did not actually produce any biodiesel at its facility, and the defendant allegedly made millions of dollars selling the fraudulent RINs.

Because the fraudulent activity in this case did not involve individual green consumers and consumer products such as water bottles, cleaning supplies, or hybrid vehicles, this would not typically be thought of as a greenwashing case.  But the fraudulent activity does represent a serious instance of greenwashing.

The fraud and resulting damage are recognizable when we view the putative RIN purchasers as green consumers, albeit commercial consumers instead of individuals, falling victim to false representations about the validity of renewable energy-based financial products.

A number of fraudulent biodiesel schemes have been perpetrated in the last few years.  But the authorities have been successful in exposing them and prosecuting the individuals involved.  Some individuals were sentenced to jail time last year in a similar case in Florida.

In view of the proliferation of fraudulent RIN schemes, the EPA has promulgated additional regulations to ensure oversight of RIN generation and improve the RIN market.

A number of new patent infringement lawsuits were filed in January and February in the areas of electric vehicle charging, LEDS, smart grid, and solar battery phone cases.

Electric Vehicle Charging

Technology for Energy Corporation v. Hardy et al.

In a lawsuit against a former employee, Technology for Energy alleges various breach of contract claims, breach of an employment agreement, and requests a declaratory judgment of patent invalidity and unenforceability.  The complaint was filed February 22, 2016 in federal court in Knoxville, Tennessee.

The patent at issue is U.S. Patent No. 9,020,771, entitled “Devices and methods for testing the energy measurement accuracy, billing accuracy, functional performance and safety of electric vehicle charging stations” (‘771 Patent).

The ‘771 Patent is directed to an instrument for testing electric vehicle charging stations (EVCS).  Energy delivery from the EVCS to the load is monitored by the instrument to determine energy measurement and billing accuracy of the EVCS.

LEDs

Harvatek Corporation v. Cree, Inc.

This is the third lawsuit between these two LED makers involving white LED lighting technology (see previous posts here and here).

Filed January 26, 2016 in the U.S. District Court for the Central District of California, Harvatek’s complaint accuses Cree of infringing U.S. Patent No. 6,841,934 (‘934 Patent).

The ‘934 Patent is entitled “White light source from light emitting diode” and is directed to an LED white light source that emits short wavelength color light.  The LED has a split metal substrate and a fluorescent glue that covers the LED chip and converts the short wavelength color light into white light.

Harvatek alleges that Cree’s CLM1 Series LED products infringement the ‘934 Patent.

Lighting Science Group Corporation v. Sea Gull Lighting Products LLC et al.

Lighting Science Group Corporation v. Hyperikon, Inc.

Lighting Science Group Corporation v. U.S.A. Light & Electric, Inc.

Lighting Science Group (LSG) filed three patent infringement lawsuits in late February, all in federal court in Orlando.

The complaint against Sea Gull was filed February 25, 2016 and asserts U.S. Patent No. 8,201,968 (‘968 Patent) and U.S. Patent No. 8,967,844 (‘844 Patent).  The accused products are Sea Gull’s Traverse Collection and Traverse II Collection products.

The complaint against Hyperikon was filed February 26, 2016 and alleges that Hyperikon’s LED Downlight products infringe the ‘844 Patent and U.S. Patent No. 8,672,518 (‘518 Patent).

Also filed February 26, 2016, the complaint against U.S.A. Light & Electric asserts the ‘968, ‘844, and ‘518 Patents and alleges that the defendant’s Recessed LED Downlight products infringe the patents-in-suit.

Entitled “Low profile light,” the ’968 Patent is directed to a luminaire including a heat spreader and a heat sink disposed outboard of the heat spreader, an outer optic securely retained relative to the heat spreader and/or the heat sink, and an LED light source.

The ‘518 Patent and the’ 844 Patent are entitled “Low profile light and accessory kit for the same” and relate to LSG’s disc light LED devices.

Lexington Luminance LLC v. Samsung Electronics Co. et al.

In a complaint filed February 25, 2016 in federal court in Marshall, Texas, Lexington Luminance accused Samsung of infringing U.S. Patent No. 6,936,851 (‘851 Patent).

The ‘851 Patent is entitled “Semiconductor light-emitting device and method for manufacturing the same” and is directed to LEDs having textured districts on the substrate such that inclined layers guide extended defects to designated gettering centers in the trench region where the defects combine with each other.  This structure reduces the defect density of the LEDs.

The complaint lists a host of Samsung products including a number of Galaxy smartphones.

Smart Grid

Endeavor MeshTech, Inc. v. Rajant Corporation

Endeavor MeshTech (a wholly-owned subsidiary of patent monetization firm Endeavor IP) sued Rajant in the U.S. District Court for the Eastern District of Pennsylvania on January 4, 2016.

The complaint accuses Rajant of infringing three patents in a family – U.S. Patent Nos. 7,379,981 (‘981 Patent),  8,700,749 (‘749 Patent), and 8,855,019 (‘019 Patent), 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.

The accused products and services include Rajant’s BreadCrumb Wireless Nodes, InstaMesh Networking Technology, CacheCrumb, and Mesh Antennas.

Dipl.-In. H. Horstmann GmbH v. Smart Grid Solutions, Inc.

Horstman, a German company, filed this lawsuit against Smart Grid Solutions (SGS) in federal court in Atlanta, Georgia.

Filed on January 12, 2016, the complaint accuses SGS of trade dress infringement and various deceptive trade practices, as well as infringement of U.S. Patent No. D578,478 (‘478 Patent), a design patent entitled “Fiber optic cable.”

The ‘478 Patent protects Horstmann’s fiber optic cable design with each end including a semi-transparent curved end attached to the cable and a ribbed segment terminating at a flange.

Horstman alleges that SGS’s E-Scout FI-3C Underground Fault Indicator product infringes the ‘478 Patent.

JSDQ Mesh Technologies LLC v. Teco Energy, Inc. et al.

On February 2, 2016, JSDQ filed suit against Teco Energy and Tampa Electric Company, alleging infringement of four patents relating to wireless routing systems used in smart grid networks.

The patents-in-suit are U.S. Patent Nos. 7,286,828 and 7,916,648, both entitled “Method of Call Routing and Connection,” RE43,675 entitled “Wireless Radio Routing System,” and RE44,607 entitled, “Wireless Mesh Routing Method.”

JSDQ alleges that Teco and Tampa Electric infringe the patents-in-suit because of their deployment of wireless mesh networking systems that incorporate Trilliant’s SecureMesh broadband mesh network.

JSDQ filed a similar infringement suit against Silver Spring and Pepco in September last year.

Solar Battery Phone Cases

iPowerUp Inc. v. Ascent Solar Technologies, Inc.

iPowerUp sued Ascent Solar Technologies (AST) for alleged infringement of two patents relating to solar battery charging cases for mobile phones.

The complaint was filed February 12, 2016 in the U.S. District Court for the Central District of California.

The asserted patents are U.S. Patent No. 8,080,975, entitled “Portable and universal hybrid-charging apparatus for portable electronic devices” (‘975 Patent) and U.S. Patent No. 8,604,753, entitled “Method of distributing to a user a remedy for inadequate battery life in a handheld device” (‘753 Patent).

The ‘975 Patent is directed to a modular hybrid-charger assembly comprising a rechargeable internal battery connected to a port operable to function as a tetherless connection to a portable electronic device and a device holder having a framework operable to receive, hold, and release the portable electronic device.  The ‘753 Patent claims methods relating to use of the hybrid-charger assembly of the ‘975 Patent.

The accused products are AST’s Enerplex Surfr and Enerplex Surfr Amp cases for the iPhone 6/6s and the Enerplex Surfr for iPhone 5/5s.

Greentech Media covered a new report that looked at the kinds of market forces we would need to effectively move from fossil fuels to renewables.

Entitled “Will We Ever Stop Using Fossil Fuels?”, the report concludes that technology-driven cost reductions will lead us to continue to use fossil fuels for many years.

One important point raised by the study is that the analytical framework used to compare the cost of renewables versus the cost of fossil fuels is flawed.

Specifically, you can’t only look at the cost of renewable energy technologies over time or even at the cost of renewable energy compared to the current cost of fossil fuel extraction because, like renewables, the costs of conventional carbon-based technologies are likely to go down over time as well.

The GTM piece quoted a University of Chicago economics professor named Michael Greenstone, a co-author of the study, about innovation in fossil fuel extraction keeping pace with green tech innovation:

There’s been tremendous innovation with low-carbon energy, but what’s often missed is that there’s been tremendous innovation in bringing down the cost in fossil fuel recovery.

While promoting innovation in green technologies, should we simultaneously be stifling innovation in fossil fuel technologies?

Some academics think so.  In a guest post on this blog, Professor Matthew Rimmer of the Queensland University of Technology in Brisbane, Australia posited that it might be time for “patent law to become fossil fuel free.”

Professor Estelle Derclaye of the University of Nottingham has suggested that “patent offices could either not grant patents for any invention which emits CO₂ or make a cost-benefit analysis in terms of the value of the invention for society and the levels of CO₂ emitted.”

While I’m generally opposed to implementing different patentability regimes across technology areas and excluding specific technologies from patenting, I believe that some aspects of the patent process, such as procedural rules and fees, could be adjusted in an attempt to achieve certain policy goals.

I’ve previously suggested (see here and here) a harmonized fast track program for green technology patent applications.  This “Global Green Patent Highway” would not alter substantive patentability standards, but would provide a smooth and internationally coordinated expedited examination procedure for patent applications directed to inventions that confer a “material environmental benefit” so green patents are granted faster.

Perhaps we should take the opposite tack and consider procedural changes or fee structures that would make it more burdensome to patent technologies directly relating to activities that increase carbon emissions.

In light of this report, maybe now is the time to slow fossil fuel patenting.

In yet another example of eco-mark applicants struggling with descriptiveness, a trademark application for CARBON ELIMINATOR for a “non-chemical enzyme fuel additive” recently went down as merely descriptive of the goods.

After the Examining Attorney refused registration of the mark, Star-Brite Distributing, Inc. (Star-Brite) appealed to the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (Board).

Under U.S. trademark law, a mark that is merely descriptive of the goods or services it is being used to market or sell is not registrable on the Principal Register because that would restrict competitors from conveying information about their goods or services.  A merely descriptive mark is one that immediately conveys to consumers the nature of the goods or services.

A major problem for Star-Brite was that the product packaging states that CARBON ELIMINATOR “removes tough carbon deposits” (see below).

In addition, a product description submitted as a specimen in the application said the product “uses enzyme technology to remove carbon, gum and varnish deposits.”

Based on the packaging and description, the Board found the mark descriptive of what the product actually does:

[A]s Applicant’s specimen and product packaging make clear, Applicant’s enzyme fuel additive eliminates carbon engine deposits.

Star-Brite argued that the term “carbon” does not describe an enzyme fuel additive and the associated chemical reaction and that CARBON ELIMINATOR is a double entendre because the product reduces carbon dioxide emissions of hydrocarbon fuel-burning engines.

The Board disagreed, explaining that CARBON ELIMINATOR is descriptive of the “purpose and and result of that biochemical reaction” and noting that all meanings of the alleged “double entendre” are nonetheless merely descriptive.

The Board concluded that the mark as a whole does not convey “any distinctive source-identifying impression contrary to the descriptiveness of the individual parts.”

Finally, the Board stated that consumers would view the mark as simply signaling what the product does and, re-stating a principal policy of descriptiveness law, noted that competitors ought to be able to use the terms to describe similar products:

On this record, it is clear that consumers familiar with Applicant’s goods would immediately understand, upon seeing Applicant’s proposed mark, that the fuel additive removes carbon deposits.  Furthermore, Applicant’s competitors who also offer products which remove deposits should, like Applicant, have the opportunity to use the term “carbon eliminator” or variations thereof to explain the purpose of their products.