Two Questions Every Wind Energy Company Should Ask Itself

As the world celebrates Global Wind Day on June 15th, we are reminded of the economic, political, and legal issues that must be addressed to further advance wind technology.  With regard to the legal issues, consideration must always be given to the patent landscape.  In the past twenty years, nearly 500 U.S. patents have issued with the words “wind turbine” in the claims; 123 patents issuing in 2008 alone.  The technologies covered vary from improvements in blade design to methods for detecting ice on a wind turbine.  Patents are government validated assets.  For those who do not own the assets, patents become economic roadblocks.  Companies in the wind-energy industry must face the reality:  You either own the assets, or are subject to the roadblocks.

Before bringing a new product to market, every wind energy company should ask itself two important questions:

1)    Does someone have a patent that can stop me from selling my product?

2)    Can I prevent someone else from selling my product?

The first question is one of “freedom-to-operate;” i.e., identifying the roadblocks.  A proper freedom-to-operate analysis requires:

i) a complete review of the final product;

ii) a review of the pool of enforceable patents; and

iii) consideration to pending patent applications.

It is important to note that a patent can cover only a sub-system or component of the whole.  Further, ignorance of another’s patent is not a defense to infringement.  Therefore, it is important to consider the freedom-to-operate of every aspect of the final product before going into production.

After conducting a freedom-to-operate analysis, the next question is whether you can prevent others from selling a product similar to yours.  Again, a proper analysis requires a complete review of the final product.  All sub-systems and components should be considered for patenting.  In addition to patenting the final commercial product, consideration should also be given to patenting modifications of the product.  Patents are more effective roadblocks when they cover more than just the commercial embodiment of the invention.  Patenting various modifications of the invention can prevent a competitor from “designing around” the patent claims.

In sum, the patenting process is the means for a company to set roadblocks for its competitors.  Questions of freedom-to-operate, i.e., identifying roadblocks, and patenting, i.e., setting roadblocks for competitors, should be at the forefront of any new product development.