There have been several green patent complaints filed in the past several weeks in the fields of biofuels, home electrical control systems, battery chargers, and LEDs.

Biofuels

Butamax Advanced Biofuels, LLC v. Gevo, Inc.

On March 12, 2012, Butamax filed suit against Gevo in the United States District Court for the District of Delaware, alleging infringement of one of its patents relating to the production of isobutanol with recombinant microorganisms. (Butamax-Gevo_Complaint_3-12-12).

The asserted patent is U.S. Patent No. 8,129,162, entitled “Ketol-Acid Reductoisomerase using NADH” (the ‘162 patent).  The ‘162 patent discloses certain recombinant mutant ketol-acid reductoisomerase enzymes, commonly called “KARI Enzymes”.  The KARI Enzymes disclosed in the ‘162 Patent function efficiently in microbial systems designed to produce isobutanol.

Butamax alleges Gevo is making and using KARI Enzymes disclosed in the ‘162 Patent.  Butamax is seeking a judgment that Gevo is infringing the ‘162 Patent, preliminary and permanent injunctions, and damages.

Gevo, Inc. v. Butamax Advanced Biofuels LLC

On March 13, 2012, Gevo filed suit against Butamax in the United States District Court for the District of Delaware alleging Butamax infringed one of its patents related to the production of isobutanol.  This suit was filed the day after Butamax filed suit against Gevo, and on the same day Gevo’s patent issued and adds to the growing litigation between these advanced biofuels rivals (see previous posts here, here and here.

The asserted patent is U.S. Patent No. 8,133,715, entitled “Reduced By-Product Accumulation for Improved Production of Isobutanol” (the ‘715 Patent).  According to the complaint (Gevo-Butamax_Complaint), the ‘715 Patent describes “recombinant isobutanol-producing microorganisms containing a disruption in the expression or activity of an endogenous 3-keto acid reductase activity and methods for producing isobutanol using such organisms.”

Gevo’s complaint alleges Butamax makes infringing microorganisms to produce isobutanol through deletion or inactivation of the YMR226c gene.  Gevo claims Butamax describes its infringing process in PCT Publication No. WO/2011/159853, entitled “Recombinant Host Cells Comprising Phosphoketolases”.

Gevo is seeking preliminary and permanent injunctions and damages.

Home Electrical Control Systems

Powerline Innovations, LLC v. Elk Products, Inc., et al.

Filed March 13, 2012 in the United States District Court for the Eastern District of Texas, Tyler Division, Powerline’s complaint (Powerline-Elk_Complaint) alleges defendants infringe U.S. Patent No. 5,471,190, entitled “Method and Apparatus for Resource Allocation in a Communication Network System” (the ‘190 Patent).

According to the complaint, each defendant is accused of infringing the ’190 Patent in products they sell “which employ methods for establishing control relationships between plural devices in a home electrical system covered by one or more claims of the ‘190 Patent to the injury of [Powerline].”

Battery Chargers

Voltstar Technologies, Inc. v. AT&T Operations, Inc, et. al.

Voltstar filed a complaint in the United States District Court for the Eastern District of Texas, Marshall Division, alleging AT&T infringes two of its patents.

The asserted patents are U.S. Patent Nos. 7,910,833 entitled “Energy-Saving Power Adapter/Charger” (‘833 Patent), and 7,960,648 entitled “Energy Saving Cable Assemblies” (‘648 Patent).

The patents describe an energy saving battery charger that automatically shuts off when a device is fully charged or not plugged in, eliminating “vampire load”.  The charger is designed to reduce power consumption and extend battery life.

Voltstar is seeking a permanent injunction and damages.

LEDs

GE Lighting Solutions, LLC v. AgiLight, Inc.

Filed on February, 13, 2012 in the United States District Court for the Northern District of Ohio, GE’s complaint (GE-Agilight_Complaint) alleges AgiLight infringes four of its patents.

The asserted patents are U.S. Patent Nos.:

7,160,140 entitled “LED String Light Engine”

7,520,771 entitled “LED String Light Engine and Devices that are Illuminated by the String Light Engine”

7,633,055 entitled “Sealed Light Emitting Diode Assemblies Including Annular Gaskets and Method of Making Same”

7,832,896 entitled “LED Light Engine”

The patents relate to various components of LED string lights.  Some of the components GE asserts are infringing include overmolded wire housings, flexible electrical connectors, several annular gaskets, and dome shaped optical element covers for LED’s.

GE is seekeing injuntive relief and damages.

Koninklinjke Phillips Electronics N.V. et al. v. Nexxus Lighting, Inc.

Phillips filed a complaint (Philips-Nexxus_Complaint) in the United States District Court for the District of Massachusetts on March 26, 2012, alleging Nexxus infringed six of its patents.

The asserted patents are U.S. Patent Nos.:

6,013,988 entitled “Circuit Arrangement and Signalling Light Provided With the Circuit Arrangement”;

6,250,774 entitled “Luminaire”;

7,038,399 entitled “Methods and Apparatus for Providing Power to Lighting Devices”;

7,358,679 entitled “Dimmable LED-Based MR16 Lighting Apparatus and Methods”;

7,737,643 entitled “LED Power Control Methods and Apparatus”; and

7,802,902 entitled “LED Lighting Fixtures”

The accused products are Nexxus’ PAR 30, PAR38, R30, MR16, MR16-HO, R16-GU10 products.  Phillips is seeking preliminary and permanent injunctions and damages.

David Gibbs is a contributor to Green Patent Blog.  David is currently in his third and final year at Thomas Jefferson School of Law in San Diego.  He received his undergraduate degree in Geology from the University of California, Berkeley.

 

Last year several individuals, including a green building consultant, an architect, and an engineer, sued the U.S. Green Building Council (USGBC) in federal court in New York, alleging that the organization made false or misleading statements in connection with its Leadership in Energy and Environmental Design (LEED) certification system for green buildings.

Specifically, Henry Gifford and the other plaintiffs accused the USGBC of making false statements regarding the energy and money-saving aspects of LEED certification in a 2008 press release, which says the results of a 2008 study:

indicate that new buildings certified under the [USGBC’s] LEED certification system are, on average, performing 25-30% better than non-LEED certified buildings in terms of energy use

The plaintiffs brought a federal false advertising claim under the Lanham Act and state claims under the New York Deceptive Trade Practices Act. 

Both the federal and state claims were based on the premise that the plaintiffs were harmed by the allegedly misleading statement because it diverted customers from the plaintiffs’ business to LEED-accredited professionals.

The court disagreed and last month dismissed the suit. 

In a 9-page Order (Gifford-USGBC_Order), Judge Leonard B. Sand held that the plaintiffs lacked standing to sue the USGBC for the alleged false advertising because they could not demonstrate that their businesses were damaged by the statements at issue.

To show standing for a claim of false advertising under the Lanham Act in the Second Circuit (which includes New York federal courts), a plaintiff must (1) be a competitor of the defendant, or (2) show a reasonable interest to be protected against the alleged false advertising and that the interest is likely to be damaged by the alleged false advertising.

The court held that the plaintiffs are not competitors of the USGBC because plaintiffs provide advice on the design and construction of energy efficient buildings while the USGBC reviews and rates designs created by others.

As to the reasonable interest prong, the court held the plaintiffs had failed to establish a causal nexus between the USGBC’s alleged false statement and clients of the plaintiffs supposedly lost to LEED-accredited professionals:

With the exception of Gifford, each Plaintiff designs and consults on specific elements of individual buildings, including heating and cooling systems, moisture and mold remediation, and architectural design.  Plaintiffs do not allege that LEED certified buildings do not require such services or that those services must be provided by a LEED-accredited professional in order to attain certification.  Because there is no requirement that a builder hire LEED-accredited professionals at any level, let alone every level, to attain LEED certification, it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.

While the plaintiffs here took on a certifiying organization directly, most greenwashing cases are brought against manufacturers and sellers of products for alleged false or misleading acts or statements made in connection with their own products.

This decision should keep it that way, at least for organizations that certify green skills and services, because it makes establishing the requisite standing to get into court very difficult for putative challengers.  

For green skills certifiers the universe of direct competitors is rather small, and non-competing plaintiffs are likely to have a hard time showing causal links between false or misleading statements and damage to their businesses.

Ecolite Concrete (Ecolite) is a San Diego company that provides sustainable construction materials using proprietary modeling software and a patent-pending system for making pre-fabricated concrete (read the Sustainable Industries article here)

The manufacturing process starts with project plans developed by the company’s EcoCAD modeling and engineering software, which produces a shop drawing of each wall panel.  Ecolite has filed an application to register the ECOCAD service mark for “computer-aided engineering services for others” (77194288_app.pdf).

The wall panel info is sent to roll-forming machines, where the shop drawing is translated into appropriately sized and marked steel framing members.  The steel members are snapped into place and fastened together into assembled frames forming the composite panels.

These panels are covered by U.S. Patent Application Pub. No. 2007/0062151, entitled “Composite building panel and method of making composite building panel.” 

 

Concrete (12) is then poured into the composite panel (10), which includes the frame (14) and has a front face (16) and a rear face (18).  The panel also has a high performance steel lath (not shown) attached to the assembled frames to provide additional strength.  The concrete is then smoothed and cured, and the panels are kept in a storage facility or shipped to the construction site.

The Sustainable Industries piece says that Ecolite’s automated steel system is the first of its kind in the U.S.

It also provides benefits for green builders.  According to the company’s website, Ecolite’s concrete mix is made of about 25% recycled content and Ecolite walls can assist builders in achieving LEED green building ratings for their projects by providing credits in several LEED categories. 

 

Serious Materials is a Silicon Valley company that makes sustainable building materials.  Serious Materials’ new EcoRock drywall is one of the greenest building materials on the market.

The EcoRock manufacturing process requires 80% less energy than production of tradional gypsum drywall and results in substantially reduced carbon dioxide emissions.  These reductions are due to a streamlined process that omits the most energy-intensive steps such as calcining (dehydrating) and oven-drying the drywall material.

Serious Materials owns U.S. Patent Application Pub. No. 2008/0286609 (‘609 Application), which is directed to the EcoRock wallboard and manufacturing method. 

Gypsum wallboard generally consists of a hardened gypsum core sandwiched between two sheets of paper or other fibrous material.  A major ingredient of the core is calcium sulfate hemihydrate, commonly known as calcined gypsum or stucco.  The calcination step to harden the core requires energy intensive heating of the gypsum and produces large volumes of carbon dioxide.

Serious Materials’ new process allows wallboard to be made from non-calcined materials.  According to the ‘609 application, the EcoRock drywall core is made from a novel binder containing a metal silicate such as calcium silicate and an acid phosphate, together with certain fillers.  Liquids such as water or phosphoric acid are added to this “dry mix” to form a slurry. 

The key is that the combination of binder components creates an exothermic reaction that heats the slurry naturally, obviating the need for energy-intensive heating equipment.  This elegant solution may be the most significant innovation in a process that has been used, by some accounts, for over 100 years.

Indeed, the EcoRock drywall won the 2008 Popular Science “Best of What’s New” Award in the green tech innovation category.

An interesting note from the trademark side:  Serious Materials’ U.S. Trademark Application Serial No. 77/035,889 (ecorock_app.pdf) for ECOROCK for “drywall” sailed through the U.S. Patent & Trademark Office (ecorock_allowance.pdf) with nary a peep from the examining attorney about being “merely descriptive” of sustainable building materials, despite the mark’s “ECO” component.  (see some previous posts on descriptiveness and ) 

The “ROCK” component and the plain vanilla goods description apparently won the day for Serious Materials’ mark.

Build It Green, a Berkeley, California non-profit organization, will provide green building certification for new San Francisco residences.  San Francisco Mayor Gavin Newsom recently approved a green building ordinance that requires new small residential buildings (those having four dwellings or fewer) to achieve certain ratings from Build It Green’s GreenPoints rating system.

Starting next year, the homes must achive 25 GreenPoints.  In 2010 and 2011, the residences must demonstrate a minimum of 50 GreenPoints, and that number rises to 75 in 2012. 

Under the San Francisco ordinance, commercial buildings and larger residential buildings can either get certified by the U.S. Green Building Council’s LEED certification program or achieve GreenPoints ratings.

The GreenPoints rating system appears to be a lesser known, California equivalent of the LEED certfication.  Like its more famous cousin, the GreenPoints rating takes into account energy efficiency, resource conservation, indoor air quality and water conservation.

Build It Green has a dozen trademark, service mark and certification mark applications for various aspects of its green building ratings and services, including U.S. Application Serial No. 77/359,607 (77359607app.pdf) for the GreenPoint Rated logo (shown above).

But Build It Green has had some difficulty in registering its eco-marks.  Not surprisingly, the marks BUILD IT GREEN (for dissemination of educational materials and programs in the field of green building) and CERTIFIED GREEN BUILDING PROFESSIONAL (for certification of professionals in the field of green building) were initially refused by the U.S. Patent & Trademark Office (PTO) as “merely descriptive” of the services provided.

This is because one can’t get a federal registration for a trademark if it merely describes or is a generic term for the goods or services provided.  The rationale is that registering such terms would restrict the ability of competitors to provide those goods or services.  (see previous posts about my descriptiveness battle , ,  and here)

However, the word mark GREENPOINT RATED is moving towards registration.  Build It Green successfully overcame a rejection in which the PTO stated that there may be a likelihood of confusion between its mark and GREENPOINT LANDING.

In its response, Build It Green pointed out the differences in the terms of the marks and argued that the latter mark refers only to the Brooklyn neighborhood where the applicant’s property transaction occurred.  The PTO was persuaded, and the GREENPOINT RATED mark has moved out of substantive examination.

Last month California adopted a statewide green building code which pushes builders to reduce energy use in their structures by 15% below the state’s current mandatory energy efficiency standards.  The standards cover both commercial and residential construction, including public institutions such as schools and hospitals. 

The California Green Building Standards Code will be administered by the California Building Standards Commission (Commission), which is responsible for the state’s building codes.  The new code will take effect 180 days from adoption and applies to all new construction statewide, although compliance will be voluntary until 2010.

The code provides standards for energy efficiency, water conservation, material conservation, resource efficiency and environmental quality.  If these measures are met, the complying buildings would meet the requirements for a silver rating under the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) certification.

A friend of mine at the Department of Energy pointed out that requiring targets for green buildings that meet a certain LEED certification level could eliminate the market for the certification altogether in the state; if all new buildings are de facto LEED certified, then why spend the money for official certification to distinguish your building?

Of course, there are other certifying organizations that will benefit from the new code.  For example, Section 705.2.1 of the code requires that wood-based materials and products that make up at least 50% of a major building component, such as framing, floors or millwork, be certified by one of several standards setting organizations, including the Forest Stewardship Council, the Sustainable Forestry Initiative (SFI) Standard and the Programme for the Endorsement of Forest Certification (PEFC) Schemes.  Other building aspects that require certification include heating and cooling systems and carpeting.

The Commission says that the code is the first of its kind in the U.S., and here’s hoping that other states follow in California’s footsteps.  Such comprehensive policy measures are very important for combatting global climate change:  according to the USGBC, buildings nationwide account for 39% of U.S. energy use and 39% of carbon dioxide emissions.