I’m pleased to announce that Green Patent Blog has been honored as one of the top business law blogs.

Compiled by Feedspot, the Top 75 Business Law Blogs were selected from thousands of IP blogs.  The list reflects rankings based on a number of criteria, including Google reputation and search ranking, social media influence and popularity, quality and consistency of posts, and review by Feedspot’s editorial team.

GPB made the list of 75 top blogs, coming in at #32.

Congratulations to the top five:  Law 4 Small Business, Strictly Business, San Diego Corporate Law, Business Law Post, and The IP Law Blog – Copyright Law.

Thank you Feedspot.  It’s nice to get the recognition, but the real satisfaction of blogging comes when someone tells me my blog has served as a valuable tool for research and publication of new works on clean tech IP, and the real pleasure is in creating and publishing a well-crafted post on an original idea.

Green Patent Blog is on vacation.

 See you in the Fall.

Green Patent Blog is on vacation.

 Happy Holidays!

Green Patent Blog is on vacation.

Bucking the recent trend of donating patents relating to electric vehicle technology, EV startup Whisker Electric announced that it would maintain its patents as private intellectual property.

In a statement made today, the company’s CEO, Waylon Tusk, had this to say:

Whisker is totally committed to protecting, defending, and enforcing its intellectual property.  Accordingly, we will not donate any of our patents.  We are very paranoid about big car companies copying our technology.  So we’re going to sue anyone who tries to use our technology in good faith, bad faith, or any other faith.  We don’t care what this may mean for the development of the electric vehicle industry.

“You can’t have our patents!  You can’t even license them!  I don’t care how much you want them or how much you’re willing to pay!” added CTO and Co-founder Norm Bradelson in a surprisingly testy conference call with reporters today.

The news from Whisker is in sharp contrast to a recent string of announcements by EV maker Tesla and two major automobile manufacturers either completely opening their EV and related patent portfolios or opening them for no fee licensing or paid licensing.

However, the reaction has been swift and positive, with the company receiving multiple unsolicited offers of major funding rounds from respected VC firms within minutes of Whisker’s announcement.

In addition, Whisker’s VP of Business Development, Austin Milbarge, told Green Patent Blog that over 10,000 new pre-orders have been made today for the company’s latest model EV.

The company has also received a flood of job applications from young engineers, including some current and former Tesla employees, particular those that were named inventors on Tesla’s patents.

The news even made it into the American presidential campaign when a reporter asked Donald Trump, the front runner for the Republican nomination, his view of Whisker’s announcement.  Trump responded, “I like these guys.  This is my kind of selfish, short-sighted capitalism.  Though personally I prefer to drive a Hummer.”

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.

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.

Before we get into the new news, let’s take a quick look back at the top green IP stories of 2015.

5.  Automaker Eco-marks

Branding of hybrid and electric vehicles remained important last year, and both Chevrolet and Toyota made progress in protecting and enforcing their trademark rights in 2015.

Chevy overcame some obstacles in its U.S. trademark applications for the BOLT and CHEVROLET BOLT marks.  It seems these applications were filed as early as possible to secure registration based on Chevy’s planned production date of its all-electric concept car coming to market in 2017.

Toyota prevailed in an opposition proceeding, shutting down a Chinese company that wanted to register PRIUS as a trademark for tobacco flavors and smoking paraphernalia.

4.  Biodiesel Tax Credit Greenwashers Plead Guilty and Go to Jail

Last year, a number of people were sentenced to jail time for charges related to schemes involving false production of biodiesel renewable identification numbers (RINs).

Four individuals in Florida were sentenced to prison time for representing to the U.S. Environmental Protection Agency (EPA) that they had produced biodiesel, generating fraudulent biodiesel RINs, and selling the fake RINs to third parties.

In Texas, the operator of a company called Green Diesel LLC pled guilty to charges of claiming to produce millions of gallons of biodiesel and generating and selling about 45 million fake RINs based on the claim.  Under the plea deal, he faces more than 10 years in prison and will be responsible for $51 million in restitution to reimburse victims of the scheme.

3.  EV Patent Commons

Picking up where Tesla left off in 2014, Toyota and Ford made opening up patents directed to electric vehicles and related technology a trend in 2015.  Neither made open-ended, no restriction offers like Tesla, though.

In January Toyota announced that its patents related to hydrogen fuel cell technology would be available for use without any royalties.  The hydrogen production and supply patents are open for “an unlimited duration.”  However, the fuel cell patents are available for royalty-free licenses only until the end of 2020.

Ford followed in May with an announcement that it was offering its EV patents for license “for a fee.”  This is not a donation.  Far from it; Ford simply stated that other parties could pay to license their EV patents.

2.  High-tech Greenwashing

A new trend emerged in 2015:  that of technological greenwashing.  Rather than making false or misleading statements in ads and other marketing materials, or providing express statements of inflated numbers, this new form of greenwashing uses technology to deceive.

The most prominent example was the major news of the Volkswagen emissions scandal in which the German automaker admitted to intentionally programming a number of its diesel vehicles to activate emissions controls only during testing.  The vehicles’ software allowed the nitrogen oxide (NOx) output to satisfy U.S. emissions standards during testing while producing much higher emissions during actual driving conditions.

Another high-tech greenwashing case is the lawsuit accusing Ford of claiming that a software update for the Fusion Hybrid would increase performance and mileage.  According to the plaintiff, the car’s monitor displayed better mileage and less gas usage after the upgrade but the numbers were inaccurate and the vehicle’s actual mileage did not improve.

A troubling trend, given that the entire deception is cloaked in technology.

1. Biobutanol Patent Warriors Settle

A significant green patent case settled in 2015.  In August, Colorado-based Gevo and BP-DuPont joint venture Butamax entered into worldwide patent cross-license and settlement agreements.

The deal ended a massive patent dispute that began back in early 2011 and grew to comprise at least 17 lawsuits and 14 patents relating to methods of producing biobutanol.

The core of the deal was that Butamax takes the lead in the on-road gasoline market and Gevo gets the jet fuel market.

The litigation was notable both for its size and as the first foray of big oil into biofuels patent lawsuits.

In a previous post, I spoke with Bruce Kania of Floating Island International (FII) about the company’s floating island technology and patent portfolio.

FII’s floating islands help maintain the health of wetland ecosystems through a “concentrated” wetland effect, i.e., higher removal rates of nitrate, phosphate and ammonia as well as reduction of  total suspended solids and dissolved organic carbon in waterways.

You can hear Mr. Kania speak in a compelling TedX talk on Transition Water.  This summary of the talk explains the concept:

In our drive to provide food for a growing world population, we have invented then squandered billions of tons of artificial fertilizer, impairing most of our surface waters over the last 70 years.  By viewing this fertilizer as a resource, we can “transition” these water-borne nutrients back out through the food-web, while creating more abundance, more food, and transitioning water towards sustainability.