Today we add the latest installment in our Eschew IP Obfuscation campaign. We look at recent events in the emerging "Windustry" - the US wind market.
On May 11th, Susan Decker of Bloomberg.com reported that General Electric had asked the U.S. International Trade Commission (ITC) to block Mitsubishi Heavy Industries from importing rival equipment into the United States claiming that it misappropriated three of GE's patents. "Turbines made by Mitsubishi, Japan's largest heavy machinery maker, infringe three patents..." Ok, three patents, which ones?
The article goes on and adds, "Today's wind turbines use different technology, than covered by the GE patents, Mitsubishi lawyer Roger Taylor told the judge. "GE is forced to twist and contort the meaning of its patents to prove infringement." GE says Mitsubishi is infringing, Mitsubishi says not so fast, this is a stretch. We also learn, the ITC acts as a third party arguing on behalf of the public, and has taken the position that there was no violation of GE's patent rights. When did that happen?
On June 10th, the Lexology business intelligence newsletter included a post from Joanna Boag-Thompson of Sherpherd & Wedderburn LLP citing, "GE is the proprietor of three patents which relate to variable speed turbines. Ms. Boag-Thompson notes that GE alleges that the turbines sold by Mitsubishi infringe GE's patents and therefore that Mitsubishi's import of turbines should be blocked. Further in the post she notes that, "An initial ruling is set to be issued by the ITC on 7 August. The initial ruling will be issued by one judge (Carl Charneski) and, once the initial ruling has been issued, the full US ITC then has until 7 December to complete its investigation and either modify, accept or reject the initial ruling. Any order to block imports could, however, ultimately be overturned by the US trade representative Ron Kirk for policy reasons."
The articles report that GE got into the wind turbine market in 2002 after buying the wind turbine assets out of bankruptcy from Enron Corporation. GE had about $6 Billion in global sales of wind turbines in 2008. Mitsubishi's web site says, "Since the 1980s, Misubishi has pioneered the development of high-efficiency wind turbines." Still no details on the patents, GE's so Mitsubishi's, we press on.
Greenstockscentral.com notes in their coverage notes that the three patents asserted by GE were issued in 1992, 2005, and 2008, and are related to variable speed turbines that adjust to insure there is a consistent power being supplied to the electrical grid without damaging the machines and to deal with periods where there is low voltage on the grid, such as a during a power outage. Greenstockscentral.com's info apparently came from National Wind Watch. They point back to Susan Becker at Bloomberg.com. Still no patent numbers. But at least we have some kind of clue to the age of the patents.
But, if GE only got into the wind turbine business in 2002, where did the 1992 patent come from? Enron? Was GE doing R&D work in that area but wasn't selling products. Why are these innovations important? Were their licensing discussions that broke down, are there other infringement matters that are underway? How did the ITC staff make it's decision so quickly? Or at least it looks like it was quick given the information available on the ITC investigation. So the information quest continues. Find the source documents, the complaint to the ITC.
The case is In the Matter of Certain Variable Speed Wind Turbines and Components Thereof, 337-641, U.S. International Trade Commission.
A 337 Investigation is a trade remedy investigation involving claims regarding intellectual property rights including allegations of patent infringement by imported goods. This is a particularly onerous process because a finding that imported goods are infringing a US patent stops the goods at the border. Immigration and Customs Enforcement get an order from the judge and stops the products from entering the US. This is a "we're not messing around" kind of move. If you are on the wrong side of one of these actions, it's a very big problem especially when your dealing with products as expensive as a wind turbine.
Next stop, the ITC website. After a circuitous hunt riddled with dead links and curiously misleading information perhaps designed for the Intellectual Property Cognescenti, we find that public documents are in something called EDIS. To get to the public documents requires creating a user ID.
(Information police: this user ID sign up form includes a list of states NOT in alphabetical order. Strangely disorienting. Does the ITC not know how to alphabetize? Then there's the security question, "What city was your mother/father born in?" Which one? Mother's city, Father's city, does the slash indicate they want both with a slash? Does the ITC assume everyone's parents were born in the same city? But I digress.)
After the get a user ID drill and logging into EDIS, we get to the search screen which takes us to the investigation screen, which then tells us the investigation is confidential and we can't see the documents. So the public document portal doesn't contain public documents after all. We move on but still don't know what EDIS stands for...Electronic Docket Information System? Who knows.
This is kind of perturbing, We can see how keeping the trade secrets of how GE implemented the inventions disclosed in its patents might be confidential but what about the the patent numbers? Come on. But we learn that the investigation number is now 337-TA-641.
This is just too hard.
How about checking the GE site next? Very nice web site, plenty of big brother stuff about how the smart grid will monitor our electricity so that we'll all be doing laundry at 2am but nothing on the web site about the wind turbine infringement. On its R&D GE page says, "GE became the first organization in history to be assigned its 50,000th patent. GE achieved this historic milestone in 1978, the year of the company's centennial. And, they have 36,000 technologists, impressive. Nice R&D blog, "From Edison's Desk" on what GE is up to including the Smart Grid work in Miami. GE gets the new media thing - YouTube Video created by GE put on YouTube and then linked into their blog.
Note to self, add GE.com to list of prior art search locations. Still no patent numbers.
More hunting. According to a news report four of the world's top wind turbine manufacturers are GE Energy, Gamesa, Siemens, and Vestas and they are worried about a tax credit that is about to expire. Vestas has some nice patents. Gamesa is a Spanish company, apparently a smaller player. Only GE manufacturer's wind turbines in the US according to a review of a George Mason University feasiblity study of the Pickens Plan to move to replace natural gas consumption in energy production with wind energy. No mention of Mitsubishi though. Still no patent numbers.
With more hunting we do learn from the Department of Energy that the US has the fastest growing market for wind. In 2007 we eclipsed Germany in Incremental Wind Capacity and are second only to Germany in Cummulative Wind Capacity. (Information police...does this make any sense. Germany's is smaller then the US in population, and land mass. What this says to me is we don't have much wind yet.) Turns out that Maryland, home of the Coronado Group, isn't represented in the "Windustry".
Then we find some interesting business data, courtesy of SC for Green blog scforgreen.com. "Wind turbine imports from Europe and Asia rose from $60 million in 2004 to $2.5 billion in 2008, according to Customs data reviewed by McClatchy Newspapers. Imports of other equipment usually, but not always, used for wind power production also increased in the same period. The value of AC generators and towers, for instance, jumped from $84 million to $1.6 billion." Exponential growth on the import front. Significant market expansion on the import front. Could be bad for business if you are GE. Still no patent numbers.
So, here's what we have so far:
- GE thinks Mitsubishi misappropriated the technology disclosed in three of its patents.
- Mitsubishi thinks GE is stretching their old technology patents to address current products. But if one of the patents was issued in 2008 how old could it be. Is this a blame it on USPTO moment?
- The ITC is investigating and has already made a decision sometime or other that they don't think GE's patent rights are being violated. We have no idea how they came to this decision or when.
- The three GE patents are of the 1992, 2005, and 2008 vintage.
- The US eclipsed Germany in the amount of incremental wind capacity but since Germany is considerably smaller and has less people, and we can assume less energy requirements, we don't really know what this means.
- Imports of wind turbines and their parts have grown exponentially over the last five years.
- Round one of the decision at ITC comes August 7th.
- Boone Pickens, Jeff Immelt, and others are anxious to build wind based energy generation capacity.
- WHAT ARE THE PATENT NUMBERS?
- Why do these inventions matter?
- When do these patents expire?
- Are any of the other competitors using GE's technology, did they license it?
- Why is finding out this stuff so hard?