The suit, filed in US District Court in San Jose on January 30, seeks unspecified damages and a preliminary and permanent injunction against the two defendants. Both New World Power, a rival American wind plant developer to Kenetech, and Enercon deny wrongdoing and say they will contest the lawsuit vigorously. Westinghouse has separate agreements with Enercon and with New World regarding wind technology and development.
Kenetech maintains that it has the rights to variable speed wind turbine technology in the United States and that neither New World nor Enercon have such rights in America. The lawsuit is a test case since Kenetech's US variable speed patents are apparently broad. If it proceeds, the suit may test the strength of those patents -- and Kenetech's ability to corner the market for variable speed in the near term throughout the United States.
In the suit, Kenetech refers to Enercon's E-40 turbine. Enercon is currently in the process of transferring the E-40 technology for manufacture in the United States. The most immediate project likely to be affected by Kenetech's action is a proposed 40 MW wind plant at Big Spring, Texas, to be built by New World using Enercon E-40 turbines for Texas Utilities Electric Co. Ground was to have been broken at the end of 1995 or the first quarter of 1996. The first phase will be 10 MW, for eventual expansion to 110 MW.
New World says it will vigorously contest the patent infringement. The Connecticut-based company says it had reviewed the Kenetech patents in detail well before the suit was filed and that neither the turbine nor its mode of operation infringes upon Kenetech's patents. New World says the suit is without merit. Enercon has also issued a similar statement from its Bremen office in Germany, promising to vigorously contest Kenetech's complaint.
If Kenetech is successful with its suit, it would have a powerful patent. As wind technology has progressed, an increasing number of companies believe that wind turbines operating in variable speed mode, as opposed to fixed speed, hold the key to a range of specific markets. Aside from Kenetech and Enercon there are other companies selling or developing variable speed technology, including Markham in the UK, Lagerwey of the Netherlands, and Nordic Windpower.
Legal action such as Kenetech's is not unusual in the world of business in the US, but it is the first major salvo between companies in the wind business over US and European turbine technology. It comes as wind development in America begins to break out of California and be increasingly adopted by utilities. Kenetech, which has been capturing contracts across the country, has been a major driving force behind this new era of US wind energy. Observers say the imminent arrival in America of Enercon's technology, respected by even US experts and now with backing from Westinghouse, was likely to prompt a business war.
Under an agreement announced before the lawsuit was filed, Westinghouse is to build and market Enercon turbines in the Western hemisphere. Westinghouse had also previously been selected as general contractor for the turnkey Texas project. It will also be involved in operation and maintenance of the project.
"It's a little sabre rattling," says Mickey Craig, director of renewable projects at Westinghouse in Orlando, Florida. "We feel pretty goodÉ It is a frivolous suit." Westinghouse was party to the patent investigations and may get involved in the lawsuit, he warns. Meantime, the Texas project is likely to be delayed, Craig predicts.
Specifically, Kenetech's six page suit refers to US patents for variable speed wind turbine and a variable speed wind turbine with reduced power fluctuation and a static VAR mode of operation. The patents in question were issued in 1992 and 1993, says the suit. The suit does not indicate at all how Kenetech believes the patent is infringed. In addition, Kenetech alleges unfair competition and claims that Enercon is preventing it from fully commercialising its technology. Kenetech, based in Livermore, California demands a jury trial.
As early as this year, Enercon and Westinghouse plan to manufacture turbines in the United States. Most likely, they will be built at the Westinghouse plant in Round Rock, Texas, formerly where the magnets for the now-halted supercollider high-tech research plant were to be made. As many as 200 turbines a year are to be manufactured at the plant, Enercon says.
Both the Enercon E-30 and E-40 are to be made in the US, says Craig. Other facilities will also be opened in addition to the "strong possibility" of using Round Rock. More projects using Enercon turbines are likely in Mexico and Central or Latin America.