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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.
© 2013 Andrews Kurth LLPAbout the Author
