A number of legal and industry publications have discussed the increase in patent litigation in the clean energy industry. This is hardly a surprise, as increased commercial potential has fueled increased R&D, and increased patent activity. A seemingly inevitable result is patent litigation, as companies either fight for market share or attempt to monetize their patent portfolios.
In some sense, the clean energy sector is following the same path taken by more “mature” industries. Some guidance can be found from the semiconductor industry, for example, where developing large patent portfolios for licensing and litigation settlement leverage has proved to be a useful strategy. But this is not always an option for many companies, either because of cost constraints or because their technologies are not so amenable to multiple patent filings.
Moreover, there are changes in the legal landscape that lessen the relevance of approaches that have been developed over the last ten to twenty years. We have seen the rise, and may now be seeing the fall, in the utility of patents for protecting the economic investment in technology. To be clear, record numbers of patent applications are being filed. However, there are also readily apparent pressures on the utility of patenting as a corporate strategy. With few exceptions, these pressures may well change patent filing strategies in many industries, including the clean energy industry.