The World Intellectual Property Organization recently released its 2017 IP report entitled “Intangible Capital in Global Value Chains.”

The report tackles several questions about the types, roles, and importance of intangible assets in global value chains.  One key question is what role intellectual property plays in generating a return on these assets.

Although much of the report deals with traditional consumer products such as coffee and smartphones, of interest to readers of this blog is the chapter on innovation in the solar photovoltaic (PV) industry and, particularly, the section on PV related patent filings.

The report notes that the number of patent filing increased from less than 2,500 in the early 2000s to over 16,000 in 2011, a reflection of the growing market demand for PV installations.  Most of those technologies originated in Japan and US until 2008, but by 2010 China had surged ahead to become the top PV patent filing economy.

The report addresses the question of China’s technological catch-up, positing that China enjoyed technology transfer by purchasing production equipment from international suppliers and cultivating skilled executives educated abroad to work for Chinese companies and teach at Chinese universities.

Another finding is that China, in particular, patents minor inventions or incremental improvements while maintaining critical innovations focusing on process as trade secrets.  From this the report concludes that process innovations “are instrumental for introducing new PV products into the market and maintaining existing ones.”

According to the report, a more detailed look at the patent filings reveals that about two thirds of patenting activity relates to cell and module technologies; silicon, ingots and wafers constituted under 10% of patent filings, and the remainder is equipment.

The report finds that the growth in PV patenting activity has reversed recently; between 2011 and 2015, the number of PV-related patent filings fell by 44 percent.  This fall has occurred in all major PV innovating countries except China.

The decrease is a result of two forces, the report concludes.  The first is a decline in the number of applicants (though the number of applications per applicant has increased), particularly in the US, Germany, Japan and Korea.  This is because many players have exited the market, and market entry is difficult.

The remaining players, however, seem to be filing more patent applications and increasing their R&D intensity.  This focus on the next generation of technologies “suggests that IP-protected knowledge assets may become more valuable in this time of sectoral recomposition.”

The second reason for the decrease is a reduction of the internationalization of PV patents.  In other words, applicants are filing in fewer countries outside their home country, opting out of international patent protection.  The report finds that in the mid-2000s, each PV invention was filed on average in three different patent offices, but by 2015, the average was only 1.5.

The report notes that PV patent applicants typically file in only a few countries/jurisdictions (China, US, Japan, Korea and Europe) and rarely file in, e.g., Australia, Russia, Latin America, Africa, and the Middle East, or anywhere else.

While most innovation studies focus exclusively on patent data, the report has an interesting section on “reputational assets” such as trademarks and brand-related activities.

The report finds that trademark protection for PV products and services has grown in the last decade.  Data from the US and international trademark application databases show that PV-related trademark filings were four to six times higher in 2016 than they were in 2005.

In the conclusion to the PV IP chapter, the report states that because PV panels and systems are now “mostly commodities rather than differentiated goods . . . the dynamics of the industry have been profoundly driven by strategies to reduce production costs, rather than by product innovation.”  In addition, the solar PV market is “saturated with an incumbent technology whose depressed prices provide tight profit margins for companies.”  Accordingly:

Firms can dedicate their R&D efforts either to high-level process innovations that will reduce production costs in the dominant technology, or to new solar PV product innovations whose production prices are below those for the incumbent technology.

With respect to China, the report calls the PV industry “a case study of a compelete form of technology transfer to an emerging economy.”

The U.S. Federal Trade Commission (FTC) has been very active in combating greenwashers, those advertisers and marketers of green products and services that make false or deceptive claims of environmental benefits.

America’s consumer watchdog agency has addressed greenwashing in two ways.   First, the agency has attempted to preempt it through guidance to advertisers in its Guides for the Use of Environmental Marketing Claims, commonly know as the Green Guides, which provide a framework for green marketers to formulate permissible environmental benefit claims for products and services.

Second, the FTC has undertaken a number of enforcement actions against greenwashers, including against an LED manufacturer for misleading environmental benefit claims and a recent lawsuit against Volkswagen on behalf of consumers.

In a recent piece published on Law360, three attorneys from the WilmerHale law firm wrote that the FTC appears poised to take a more active role in the area of rooftop solar installations.

A workshop held by the FTC in June examined consumer protection issues in the rooftop solar industry, which operates amid a “complex matrix of laws, regulations, policies, subsidies and incentives.”

According to the article, the FTC believes it has the expertise to protect consumers of rooftop solar installations:

The FTC has taken the position that it is “uniquely positioned” to ensure that “consumers are well-informed about its pros and cons and the options available to them” regarding rooftop solar generation.

The agency, of course, has the authority to target deceptive advertising, and it noted at the workshop that the Green Guides are applicable to the marketing of rooftop solar installations.

Furthermore, the FTC has issued “Solar Power for Your Home” guidance for consumers and recently opened an enforcement action relating to allegedly illegal robocalls for solar marketing.

While a number of state officials believe primary regulatory responsibility for the rooftop solar industry should be on the state level, the article said, they recognize that the FTC could play a role in identifying best practices and consumer communication templates.

So we can expect to see more from the FTC to keep greenwashing in check as the rooftop solar industry expands.

Green Patent Blog is on vacation.

Happy Holidays!

Where most of us just gaze through windows at the world outside, SolarWindow Technologies, Inc. (SolarWindow) and DryWired both look at them and see opportunities for clean tech innovation.  And both are examples of successful navigation of the federal trademark process for protecting their eco-marks.

SolarWindow sees windows as platforms for renewable energy generation.  The Maryland-based company makes a see-through solar energy generating coating technology for windows, particularly for application to tall towers and skyscrapers.

A , written when SolarWindow was called New Energy Technologies, discussed the company’s trouble with its SOLARWINDOW trademark application.

The word mark was rejected by the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (Board) as merely descriptive of the technology.  U.S. trademark law’s prohibits registration of marks that are “merely descriptive” of the goods or services.

The Board found that the definitions of the individual words “SOLAR” and “WINDOW” and the descriptive use of the combined term in the industry rendered the trademark merely descriptive.  The Board noted the effect of the mark on relevant consumers:

[I]t is clear that SOLARWINDOW would immediately inform these consumers that applicant’s goods are used to convert existing windows or create windows that are capable of collecting and generating solar energy.

But SolarWindow’s branding bounced back, with a strategy of incorporating distinctive design elements to its trademark.  The result: diminished descriptiveness problems.  The company received a Notice of Allowance in Application No. 85/673,542 for its design mark with window elements:

A Notice of Allowance was also issued in Application No. 86/014,061 for the company’s design mark with square and circle:

SolarWindow has also filed Application No. 86/615,006 for another updated design mark with block and lines and Application No. 86/615,014 for the block and line design alone.

DryWired, based in Los Angeles, makes liquid nanotechnology for windows that shields against energy loss by reducing heat transfer through the coated windows.

Sold under the brand name Liquid NanoTint, the translucent coating uses a combination of solvent borne tin-oxide based nano-particles and an inorganic adhesive binder.

It’s essentially nanotech insulation, forming a 10-micron thick self-leveling coat that bonds directly to glass and protects the inside of the building from the sun’s UV rays and reduces infrared heat transfer to keep the indoor environment cooler in summer and prevent heat loss in the winter.

DryWired owns Application No. 86/396,246 No. for the trademark LIQUID NANOTINT for “antimony tin oxide based liquid thermal insulation nanocoatings for glass.”  The application easily passed through examination and will be registered shortly.

Should you feel the need to go window shopping for some green window dressing this holiday season, you’ll know who to call.

Green Patent Blog is on vacation.

 

 

In February, three individuals filed a proposed class action lawsuit against BP Solar and Home Depot accusing the solar panel maker and retailer of greenwashing in connection with certain solar panels (see the complaint here).

Plaintiffs Michael Allagas, Arthur Ray, and Brett Mohrman alleged that there is a latent defect in the junction box of the BP solar panels that causes the box to fail and results in a total loss of functionality of the solar panels.

Specifically, the plaintiffs allege that the defect in the junction box and solder joints between connecting cables makes the solder joint overheat, which causes electrical arcing that generates temperatures of 2000-3000 degrees.  According to the plaintiffs, the heat melts the junction box, burns the cables and solar panels, and shatters the glass cover of the panels.

The plaintiffs also alleged that BP’s advertising and marketing materials about the solar panels are false or misleading.

While the northern California federal court hearing the case previously dismissed some of the plaintiffs’ claims, a recent decision denied BP and Home Depot’s motion to dismiss the remaining claims.

The court found the pleadings sufficient to support plaintiffs’ express warranty claims for breach of the express defect and power warranties because they stated that a latent defect existed at the time the product was sold and that they relied upon BP Solar’s power warranty in purchasing the solar panels.

Similarly, the implied warranty claims were held to be sufficient because plaintiffs clearly alleged a latent defect in the solar panels that renders them unmerchantable and unfit for their intended use.

With respect to the advertising and marketing materials, the plaintiffs cited various sweeping representations made by BP Solar, including:

Promises that the solar panels will “drastically reduce or eliminate your electric bills . . . forever,” and will “increase the value of your home.”

A statement that “No other system can operate at a higher level of safety than those offered by BP Solar.”

BP Solar also made some specific representations about the output and life of the solar panels, including product data sheets warranting 80% power output for a 25-year period and a 90% power output for a 12-year period with a 5-year warranty of materials and workmanship.

The court held that plaintiffs’ claims under the Consumer Legal Remedies Act could go forward because the statements include “factual representations” that could be “likely to deceive a reasonable consumer.”  The court concluded:

A reasonable consumer could have relied on these statements as descriptions of the quality and power capabilities of the solar panels.

The court maintained the plaintiffs’ fraud claims because they allege that BP knew of and concealed the defect:

The amended complaint also alleges BP’s knowledge of the latent defect in the solar panels, BP’s concealment of the defect, particular instances when information regarding the defect and risk of fire could have been revealed, and the warranties all three plaintiffs relied upon that failed to include the concealed information.

The court also denied the defendants’ motion to strike the class allegations, but left the door open for BP and Home Depot to contest those upon a subsequent motion by the plaintiffs for class certification.

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 (www.teslamotors.com.cn), 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.

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.

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.

DuPont Tate & Lyle BioProducts (DPTL) is a joint venture between DuPont and Tate & Lyle which provides natural and renewably sourced industrial materials.  In collaboration with Climalife, DPTL has developed and launched a new line of heat transfer fluids (HTF) under the brand name Greenway. 

The Greenway fluids are marketed for use in solar thermal (AKA concentrating solar power) applications.  The key ingredient in the heat transfer fluids is DPTL’s Susterra brand propanediol, a bio-based glycol.

DPTL owns several patents and pending applications relating to its bio-derived propanediol (Bio-PDO), including U.S. Patent No. 7,988,883 (‘883 Patent), specifically directed to use of Bio-PDO in heat transfer compositions.

Entitled “Heat transfer compositions comprising renewably-based biodegradable 1,3-propanediol,” the ‘883 Patent is directed to heat transfer or antifreeze compositions comprising biologically-derived 1,3-propanediol having a bio-based carbon content of at least 1%. 

The independent claims of the ‘883 Patent include a recitation that the composition “has a lower anthropogenic CO2 emission profile” compared to 1,3 propanediol with no bio-based carbon.  The Bio-PDO can be generated by genetically-engineered E.coli bacteria or other microorganisms. 

The patent makes the argument that its bio-based process is carbon-neutral.  According to the ‘883 Patent, the compositions have less environmental impact because they take their carbon from plant feedstocks and release the carbon into the atmosphere to be used by plants again:

The biologically derived 1,3-propanediol (Bio-PDO) for use in the current invention, produced by the process described herein, contains carbon from the atmosphere incorporated by plants, which compose the feedstock for the production of Bio-PDO. In this way, the Bio-PDO used in the compositions of the invention contains only renewable carbon, and not fossil fuel based, or petroleum based carbon. Therefore the compositions of the invention have less impact on the environment as the propanediol used in the compositions does not deplete diminishing fossil fuels and, upon degradation releases carbon back to the atmosphere for use by plants once again. Thus, the present invention can be characterized as more natural and having less environmental impact than similar compositions comprising petroleum based glycols.

Like some of the patent litigation involving solar ovens and solar mounting systems, the Greenway HTF product containing patented propanediol is another example of green IP extending into downstream solar and penetrating the niche market opportunities offered by the clean tech industry.