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Economically Viable Sustainability Approaches

Cleantech innovations continue to thrive despite the economic climate, a sign that viability for eco-friendly energy technologies has arrived.  With increasing opportunity to innovate in this sector, many wonder which technologies areas are most likely to prevail. A recent analysis of the cleantech patent landscape trends illustrates the hot cleantech categories, the up-and-coming technology areas that are gaining momentum, as well as patentable white space areas that may still exist, and in turn reveals where investments are being made and could be made in the near future.  For those looking to leverage the momentum, knowing the demographics of ownership and areas of highest corporate interest versus individual inventor are also useful in identifying where market opportunities yet exist.

Three categories in particular held their ground as the dominant innovative leaders throughout 2009, based upon number of patents granted: solar (at approximately 31 percent), wind (at approximately 19 percent) and hybrid vehicles (at approximately 15 percent).

Representing the strongest areas of interest and investment in new technology development, solar, wind and hybrid vehicle technologies continue to lead with metering technologies now joining the high-ranks.  In particular, the top five specific areas for innovation across the cleantech landscape (based upon number of patent claims granted) are photovoltaic solar cell construction and/or materials, control systems for hybrid vehicles, blade/rotors for wind turbine generators, automated meter reading and/or load control systems, and wind turbine generator operational control. Given the market popularity of these technologies, innovations in these areas are likely to thrive well into the future.

The innovation areas showing the greatest increase in activity in their respective technology categories within the past two years are mounting systems for solar panels, wind power generation from vehicular traffic, wave-driven hydropower generation, ethanol production from biomaterials, and battery chargers for hybrid vehicles.  While these particular technologies did not make the top five, they are on the upswing, garnering increasing interest and investment, and may represent areas of new opportunity for entrepreneurs.

Entrepreneurs and others looking to capitalize on new cleantech technologies typically prefer to avoid technology areas that are ‘saturated’ with patents, and find those areas in the cleantech landscape that still have patentable ‘white space’ where more opportunities for protecting new innovations remain.  One potential way to locate patentable white space in the cleantech landscape is to find the specific technology areas where a higher-than-average percentage of patents are granted with no rejection based upon the existing state of the art (i.e. “first action allowances”).  More than 23 percent of the cleantech patents reviewed were granted in 2009 under a first action allowance, representing an increase of approximately three percent from 2008 and indicating the possibility that a relatively broad scope of patentable white space in the cleantech landscape still exists, despite the advances in patents granted during recent years.

The top five innovation areas having the greatest potential white space according to this indicator are photovoltaic solar cell construction and materials, control systems for hybrid vehicles, operational control of wind turbine generators, drive train or power transmission in a hybrid vehicle, and automated meter reading and/or load control systems, devices and/or components.

One indicator of potential licensing opportunities for those looking to enter or expand their presence in the cleantech landscape is to study the demographics of the patents recently granted to identify individual inventors who may be willing to license or sell their technologies.  Across the cleantech landscape, corporate entities continue to control the majority of patent activity by approximately a four-to-one ratio over individual inventors, and corporate entities led in all cleantech categories except hydro/wave/tidal energy.  Notably, in the category of hydro/wave/tidal energy, individual inventors accounted for 62 percent of the patents granted.  In contrast, the relatively more complex technologies such as nuclear power and hybrid vehicles that are often associated with extensive research and development efforts, regulatory oversight and corporate infrastructure, and substantial amounts of funding, are dominated by corporate entities.

Nonetheless, individual inventors remained well represented throughout 2009 with more than 18 percent of the patents granted, which is down approximately four percent from 2008 but still notably higher than the 11 percent representation of individual inventors for all U.S. patents granted two years ago.  The continued higher rate of patents to individual inventors in the cleantech landscape continues to represent an area where new technologies may be available for licensing by corporate entities or others looking for an entry point in the cleantech field, or companies looking to expand an existing cleantech presence.

The cleantech patent demographics also show that the top three countries obtaining U.S. patents for the 11 cleantech categories in 2009 patent are the United States (as expected – with approximately 58 percent), Japan (with about 13 percent) and Germany (with about 10 percent).  Among those patents granted to U.S. entities, the top three states obtaining U.S. patents are California (roughly 20 percent), New York (approximatley 12 percent) and Michigan (roughly 10 percent).  While the patents granted to California and New York entities spanned a variety of technologies, the patents granted to Michigan were predominantly in the technology field of hybrid vehicles.

For those looking to protect their technology investments quickly, take heed. Regardless who is researching and developing new cleantech technologies, or where they are located, the activities are often fast-paced.  However, once the new innovation is developed and a decision is made to seek patent protection, it can take a long time until a patent is actually granted and available for licensing or other use.  The total number of days from filing of an application until grant of a patent in the cleantech landscape ranged from a low of approximately 835 days for hydro/wave/tidal patents to a high of approximately 1,339 for nuclear patents, with a total average pendency of approximately 1,090 days or 36.3 months (assuming 30 days per month).  In view of the long pendency and relatively high first action allowance rate for cleantech patents, it may be worthwhile for patent applicants to seek accelerated examination of their patent applications so that licensing or other revenue-generating opportunities arising from the resulting patent can be leveraged more quickly.

In brief, for companies and start-ups looking to tread more ground in the cleantech landscape, solar, wind, hybrid vehicle and metering technologies continue to lead, and still have areas of patentable whitespace indicating room for innovation expansion.  For those looking to leverage licensing opportunities, the cleantech landscape has more than its fair share of patents held by individual inventors, particularly in the areas of hydro, geothermal and wind energy technologies.  For those looking to quickly leverage revenue generating opportunities from patents on their new technologies, it may be wise to consider seeking accelerated examination of their patent applications.

John M. Lazarus is a senior counsel with Foley & Lardner LLP and member of its Mechanical & Electromechanical Technologies and Green Energy Technologies Practices and Energy Industry Team. He counsels a wide variety of companies regarding patent protection strategies and patent portfolio coordination. The statistics contained within this article come from Foley’s recently released annual clean-tech energy patent report, which provides an analysis of patent filings and investment activity. Mr. Lazarus can be reached at jlazarus@foley.com.

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