Patent Claims and Climate Change

earth in a puddle of water

IAM reports that:

Toyota continues to dominate US patent filings for green technologies, while other companies with strong portfolios include General Electric, Panasonic, Hyundai and LG, according to a recent patent analysis.

According to Anaqua, the top 10 green technology US patent holders are:

Rank 2020 2022 2022 difference
1 Toyota Toyota Same
2 Panasonic General Electric Improved from 6 to 2
3 Nissan Samsun Electronics New
4 State Grid Corp of China Ford New
5 Honda Panasonic Dropped from 2 to 5
6 General Electric Raytheon New
7 Robert Bosch GM Global Tech New
8 Toshiba Hyundai Improved from 10 to 8
9 LG LG Same
10 Hyundai Samsung SDI Co New

As IAM reports,

Among others, the green technology patenting areas that landed the companies on the 2022 ranking include:

  • The auto OEMs focused on green transportation technology related to electronic control of traditional engines, electric and hybrid vehicles and automotive batteries.
  • Samsung and its subsidiary Samsung SDI were patenting in the areas of Lithium-ion batteries, automotive batteries, battery improvement and manufacturing technology, energy storage systems, electronic materials technologies and efficiency in user displays, solid state devices and semiconductors.
  • Raytheon, which merged with United Technologies Corp in 2020, owns green tech IP in the areas of aircraft engine efficiency, enhanced materials science, gas turbine and jet propulsion technology, and more.

A recent presentation at the American Intellectual Property Law Association (AIPLA) Mid-Winter meeting led to a discussion about how to structure patent claims in a world facing climate change and the resulting resource scarcity.

As this blog notes, one relevant issue in patent drafting is the difference between “comprising” and “consisting of”:

For example, “comprising” is an open-ended term that allows for inclusion of unspecified ingredients. “Consisting of,” on the other hand, is a closed term, and courts have generally interpreted claims with this phrase to cover only the combination of specified components recited in the body of the claim, i.e., no more and no less.

In Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp.,

Multilayer Stretch Cling Film Holdings, Inc. (“Multi-layer”) brought suit against Berry Plastics Corp. (“Berry”), alleging infringement of at least claim 1 of U.S. Patent No. 6,265,055 (“the ’055 patent”), which relates to multilayered plastic cling wrap films. The district court construed the claims of the ’055 patent as not covering (i.e., closed to) blends of the four resins expressly recited by those claims or unlisted resins, instead requiring that each of five inner layers within the film be composed of only one of the listed resins.

The Federal Circuit explained that

The presumption that a claim term set off by the transitional phrase “consisting of” is closed to unrecited elements is at least a century old and has been reaffirmed many times by our court and other courts. We are unaware of any case that has construed a patent claim’s use of “consisting of” to have the same open meaning as “comprising,” and Multilayer points us to none.

This is relevant to climate change, as the above-cited blog explains, because

claiming an invention that eliminates or minimizes ingredients may provide a strategy for green tech to obtain valid and enforceable patents that cover greened-down products.

I.e., patents can be drafted in such a way to cover both inventions with more ingredients and/or components, and versions of the same inventions that are simpler and thus impose less of a burden on the environment.

Categories: Patents