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There is probably no dispute that patents relating to
"green energy technology" have been increasing given the
amount of resources that governments, universities, and private
investors have poured into the sector. In fact, subjective
observation of such activity by many of our energy clients seems to
confirm this. However, there appears to be no definitive
quantitative study examining the number and types of patents issued
in the area. Similarly, a definitive study on patent litigation in
the sector does not seem to exist. The author is undertaking an
ongoing review of the patents and litigation in the
"cleantech" sector with the ambitious idea of publishing
the results later this year. Unfortunately, such a review is
proving difficult for a number of reasons.
Green energy technology is difficult to define and involves a
number of disciplines. That is, the phrase can encompass renewable
energy such as solar, wave, wind, geothermal, hydro, nuclear, and
biofuels made from renewable resources like biomass. Similarly,
green energy can include fuel cells, hydrogen, and hybrid electric
vehicles. Green energy could also arguably include smart grids or
utility metering, waste and water purification, and recycling
efforts.
Unfortunately, green energy or cleantech does not have a
specific assigned class at the U.S. Patent and Trademark Office.
This, of course, makes obtaining definitive data on patent filings
and issuances difficult. What's more, the U.S. Patent and
Trademark Office may often categorize a particular patent in
numerous classes. This means that meaningful data collection
may require word searching and the inherent problems with such a
subjective effort.
The greentech accelerated examination program at the U.S. Patent
and Trademark Office was begun in December 2009 and is helpful in
reviewing patent statistics to some degree. The program ended in
2011 when the total allotted 3500 eligible applications had been
processed. The program essentially allowed applications pertaining
to green technologies to be advanced for examination so that the
examination proceeded faster. The program had a list of 79
different assigned classes that were eligible for inclusion in the
program. An application had to be initially classified in one of
these classes to be considered. As of April 26, 2012 there were
1062 patents that had been issued through the program leaving less
than 2500 applications still in the program. In looking at the 5550
applicants for the program, over 77% were in Technology Centers
1700, 2800, and 3700. That is, the majority were deemed to be
chemical, electrical or mechanical as opposed to biotechnology,
transportation, or communications. While this provides some data,
the phase-out of the program coupled with its voluntary nature
still make obtaining reliable data difficult.
District court patent litigation in the cleantech sector is even
more difficult to analyze than data from the U.S. Patent and
Trademark Office. It appears that the only proper and reliable way
to conduct the analysis is to review the title of each patent in a
patent litigation and investigate further if it appears such may be
relevant. The preliminary data seem o suggest that renewable energy
patent litigation is more prevalent followed by hybrid vehicle
patent litigation. However, a more detailed analysis will confirm
this.
The prevalence and trends of cleantech patents and patent
ligation still needs to be further analyzed and quantified.
However, there is no doubt that innovation in the area continues
and the value of intellectual property can and will be an
increasing focus for the cleantech industry. The high cost of
energy coupled with environmental concerns will ensure continued
investments in the industry in both the private and public sector.
With such investments will come the duty of the investors to
protect and defend any intellectual property rights arising from
the investments. Accordingly, the importance of patents and
patent litigation in cleantech will only increase.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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