Patent office warning

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The Danish Patent Office is publicly warning the country's wind industry of its vulnerability to aggressive business tactics by overseas competitors. "It is foolish for Danish wind turbine manufacturers not to patent their inventions. My feeling is that it will take a costly court case, or similar such action, before the seriousness of the situation dawns on them," says Søren Hansen of the patent office.

Hansen's remarks were published last month in a weekly Danish newspaper, Ingeniøren (The Engineer), in an article headlined, "Danish wind turbine manufacturers do not believe in patents." His warnings, based on an in-depth Danish Patent Office report first presented to the wind industry over a year ago, appear to be falling on deaf ears, however.

"The Danish wind turbine industry's patent activity is extremely modest when you compare it with the branch's share of the world market," states Hansen in the report. Of the around 200 wind industry inventions for which patents are sought each year, just 1.5% of them have been from Danish companies, he adds. The report reveals that just three Danish wind companies have sought technology patents anywhere in the world: Bonus, Vestas and LM Glasfiber. Vestas has patented its "Opti-Slip" generator system.

"Companies must realised that patents can be granted for solutions which have quietly functioned in practice in a Danish wind turbine for years. It might be unfair, but those are the rules," says Hansen to Ingeniøren. A patent granted by the European Patent Office (EPO) is applicable in 17 countries, including Denmark, Britain, Germany, France, Spain, Switzerland, Austria and Greece.

Significantly, the Danish patent investigation reveals that not one of the global wind industry's best-known names appears in the top-twenty list of companies most active within wind industry patent applications between 1985 and 1996. Oddly enough, the list is dominated by east European or Russian names, with only Mitsubishi and Yamaha readily recognisable.

"United Technologies Corp," an apparent forerunner of US Windpower and later Kenetech, creeps into 20th place on the list, otherwise it is Mitsubishi's second place which is the most striking. Only in later years, specifically in the top-twenty list for 1994-96, does a Danish company appear: Bonus in 11th place with applications for three patents. In this list Mitsubishi again dominates the mainly east European names, with Mitsubishi companies coming in first and 19th.

According to Lars Budtz, head of product development at Vestas of Denmark, the world's largest wind company, an EPO patent on the concept of variable speed technology would not cause the European wind industry undue concern. "If that was the case it could, without difficulty, be proved that the technology has been used and documented in more than 20 years. For example, the "Tvind" wind turbine was operational from the mid 1970s, he says.

The onus would lie on the patent holder to prove that its patent had been contravened -- and that would require a court case, continues Budtz. And if the plaintiff wished to stop the defendant from producing and marketing the product in question, it would have to place a bank guarantee with the court. The size of the guarantee is set by the court and must correspond to the defendant's losses during the period of the embargo. In the case in question this would amount to millions, says Budtz. "European patent law demands far more specific patents than the four or five broad patents obtained by Kenetech in the US," adds Budtz. "In my opinion the holder of that patent would have a very slim chance of winning a court case."

Hansen explains that after a patent is granted there is a nine month period in which "oppositions" can be registered by anybody who wishes to dispute it. In some cases, however, opponents do informally alert the EPO to their objections beforehand. There is nothing to stop the holder of the patent, however, in filing a patent infringement lawsuit during the first nine months. But if the defendant has also filed what appears to be a substantive opposition at the EPO to the same patent, a judge will typically stay the infringement suit until the patent is resolved.

The best way for the entire wind industry to protect itself against patent misuse is to become far more active in patenting inventions, says Hansen. He strongly advises the start of a "hedging manoeuvre," whereby companies build a protective ring of patents around their technology. At the same time the industry should start regular monitoring of all patent applications so that it is in a position to oppose an attempt to pate

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