The High Court in London last month ruled against German manufacturer Enercon in a claim of patent infringement against Siemens, Dong Energy and A2Sea. It is a judgment that could have significant impacts on those investing in wind innovations.
The German manufacturer, which brought the action via subsidiary Wobben, said the trio used Enercon’s patented technology in turbines used at UK offshore wind farms including the 630MW London Array, 210MW Westermost Rough and 172MW Gunfleet Sands. It has valued its legal action at around £13m.
Specifically, Enercon claims Siemens, Dong and A2Sea used a system similar to its ‘storm control’ technology, which shuts down turbines in high winds (over 25m/s) and does not re-start them until the wind is consistently slower. The German firm first filed a patent for this way of operating a turbine in September 1995, and this patent runs to August 2016.
However, the UK High Court ruled the patent was invalid and, even if it was valid, the other parties would not have breached it. The judge said that the idea pre-dated Enercon.
We do not expect this to be the end of the case. Enercon is able to appeal the ruling; and the judgment would need to be ratified by the European Patent Office if it is to be used in Europe more widely. Even so, this is a significant ruling because the judge ruled the idea did not show enough ‘inventiveness’ to make the patent applicable.
Put simply, innovators in the wind industry will need to show their ideas are sufficiently inventive if their patents are to stand up.
The case is also important because it shows how all firms in the development process, from the developers and investors to the manufacturers and contractors, are at risk from legal actions over patent infringements. It also shows how firms should arm themselves with information and projects and turbines in order to protect themselves in these cases.
We expect it to be more common for such cases to end up in court.
Spending on research and development by major manufacturers has fallen since the world financial crisis hit in 2008, and has not recovered. It is therefore natural for manufacturers to look to protect their inventions. They may only give marginal gains but, in an era where we are looking at how to bring down the cost of wind energy and increase their lifetime yield, technology that gives such marginal gains could make all the difference.
It is disappointing for the wind industry to spend money fighting legal battles when it could be developing innovative new products. Nevertheless, in an increasingly competitive market similar such cases will undoubtedly come to light in the future.
And for claimants like Enercon? We think there are two lessons.
First, defendants are not backing down and simply licensing the product to avoid a legal fight; and, second, these patents have to demonstrate a degree of ‘inventiveness’ that Enercon could not show this time.
Having a patent is fine, but it’s simply an expensive folly if it does not stand up in court.
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