By Julia Ciardullo
Fellow

This is the second in a series of blogs that will discuss some of the most notable recent legal developments in the field of intellectual property law and green technology.  In a prior post, we discussed the expiration of the USPTO’s Green Technology Pilot Program and the enactment of the America Invents Act.  This post will discuss the latest developments in a series of pending patent infringement cases between General Electric Co. (“GE”) and Mitsubishi Heavy Industries, Ltd. (“MHI”) and its US subsidiaries (collectively, “Mitsubishi”) in what has shaped up to be a battle for control of the multi-billion dollar US wind turbine market.

International Trade Commission Investigation

On February 27, 2008, GE initiated an investigation with the International Trade Commission (“ITC”) (Investigation No. 337-TA-641), alleging that Mitsubishi’s variable speed wind turbines infringed three of GE’s patents.  On March 2, 2010, the ITC concluded that Mitsubishi was not in violation of Section 337 of the Tariff Act and declined to issue an injunction banning importation of Mitsubishi wind turbines.  GE appealed to the Court of Appeals for the Federal Circuit.  On February 29, 2012, the Federal Circuit affirmed the ITC’s determination that Mitsubishi was not in violation as to one of GE’s patents, but remanded to the ITC for a determination as to whether the second of GE’s patents was valid and infringed by Mitsubishi (the third patent had expired prior to the Federal Circuit’s decision), leaving open the possibility of a victory for GE before the ITC.  (Fed. Cir. Case No. 2010-1223).  The Federal Circuit decision can be found here.

District Court Litigations

Other wind turbine patent litigations between GE and MHI remain pending in several district courts around the US.  Most notably, on March 8, 2012, a jury in the Northern District of Texas awarded GE $170 million in damages based on alleged infringement by Mitsubishi of a GE patent relating to wind turbine electrical power regulation systems.  (Case No. 3:10-cv-00276, filed February 11, 2010).  The jury verdict can be found here.  The judge has not yet issued a final order in the case.

In an earlier case, GE filed suit in the Southern District of Texas alleging infringement by Mitsubishi of several GE patents on variable speed wind turbine control systems.  (Case No. 2:09-cv-00229, filed September 3, 2009).  The case is currently stayed pending final resolution of the ITC action.

MHI filed its own suit against GE in the Middle District of Florida alleging infringement of MHI’s patent on systems that control the pitch angle of wind turbine blades.  (Case No. 6:10-cv-00812, filed May 20, 2010).  Summary judgment arguments are currently being heard in the case.

MHI also filed an antitrust lawsuit against GE in the Western District of Arkansas alleging that GE’s variable speed wind turbine patents were fraudulently procured and that GE’s efforts to enforce them against MHI constitute an anticompetitive scheme that has cost MHI billions of dollars.  (Case No. 5:10-cv-05087, filed May 20, 2010).  On August 23, 2010, the court ordered a stay of the case until final resolution of GE’s pending infringement suits, explaining that GE victories in those cases would moot MHI’s antitrust claims.

A discussion of other major pending litigations concerning solar, biofuels and other green technology patents will be the subject of a future blog post.

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