Court Grants Zep Solar’s Motion to Dismiss Rival’s Non-Infringement DJ

elane@luce.com. (Eric Lane) — Tue, 16 Mar 2010 00:55:40 GMT

In a previous post, I discussed a patent infringement suit filed by solar installer Akeena Solar against Zep Solar, Inc. (Zep), groSolar and High Sun Technology, Inc. (HST) in the Northern District of California. Akeena’s complaint (akeena_complaint.pdf) accused groSolar and HST of infringing U.S. Patent No. 7,406,800 (’800 Patent”), entitled “Mounting system for a solar panel” and directed to an integrated [...]

In a previous post, I discussed a patent infringement suit filed by solar installer Akeena Solar against Zep Solar, Inc. (Zep), groSolar and High Sun Technology, Inc. (HST) in the Northern District of California.

Akeena’s complaint (akeena_complaint.pdf) accused groSolar and HST of infringing U.S. Patent No. 7,406,800 (’800 Patent”), entitled “Mounting system for a solar panel” and directed to an integrated module frame and racking system for solar panels. According to the complaint, Zep’s solar panel mounting system infringes the ‘800 Patent, and groSolar has teamed up with Zep to distribute and install Zep systems.

The complaint also included a claim against Zep and HST for a declaratory judgment (DJ) that Akeena does not infringe Zep’s U.S. Patent No. 7,592,537 (’537 Patent), entitled “Method and apparatus for mounting photovoltaic modules.”

The ‘537 Patent is directed to a photovoltaic module mounting system (10) comprising two adjacent interlocking PV module frames (12L, 12R). Each frame encloses the perimeter of a PV laminate (14) in recesses (23L, 23R). The interlocking mechanism may comprise a separate male coupling member (28) inserted into female channel portions (26L, 26R).

Last month the court dismissed Akeena’s non-infringement DJ claim, finding there was no actual controversy between the parties about the ‘537 Patent (zep_order.pdf).

Akeena had alleged there was an actual controversy sufficient for DJ jurisdiction because of certain e-mails and telephone conversations between the parties including a Zep e-mail to Akeena’s counsel to bring the ‘537 Patent to Akeena’s attention, an e-mail from Zep’s CEO to Akeena’s president stating that “Zep’s legal team is ready for a fight if that is what is needed,” and a telephone conversation in which Zep’s CEO allegedly told Akeena’s president that he would “blow up” Akeena’s patent.

But the court found that the communications at issue were made in response to Akeena’s infringement threats and merely signaled Zep’s intention to preserve its legal rights:

Significantly, Zep’s communications to Plaintiffs have all been in response to Plaintiffs’ accusations of infringement and direct threats of an infringement lawsuit. Objectively, all of Zep’s statements are reasonably read merely as preserving Zep’s legal rights, including the right to attack the validity of Plaintiffs’ patent and to assert Zep’s patent if sued by Plaintiffs.

The court also found it significant that, since the lawsuit was filed, Zep hasn’t asserted a counterclaim that Akeena infringes the ‘537 Patent.

Legally Green--ICC Releases Green Construction Code For Public Comment

shari.shapiro@obermayer.com (Shari Shapiro) — Mon, 15 Mar 2010 20:05:01 GMT

Today the International Code Council released its Green Construction Code for public comment today. You can download a copy here. The objective of the IGCC is

to develop a Green Building Code for traditional and high-performance buildings that is consistent and coordinated with the ICC family of Codes and Standards.

I have previously posted on the importance of such an effort here. Public comments can be made on the IGCC until May 14, 2010.

Once finalized, the IGCC can be adopted by local governments, and comport with the already existing building codes.

One interesting diversion from prior building codes is the integration of post-occupancy reporting. According to the AIA:

When the building is complete and the C of O is issued, building owners will be required to submit a commissioning report to the local code official within 18 to 24 months. This report will detail how the building has performed in terms of energy efficiency, building envelope performance, water use, lighting controls, etc. The report can be completed by the primary designing architect, or by a third party designated by the client or building owner. In either case, the local code official must approve the commissioning agent that completes the report. If a building does not meet its performance goals, the commissioning report will document why and prompt the parties involved in its design and construction to improve it.

Such post-occupancy requirements, and performance reporting, will elicit the usual hand-wringing from green building law practitioners like me about what will become of buildings which do not perform to their expected levels, and what enforcement mechanisms will be implemented by local governments to require building owners to fix underperforming green buildings. Nonetheless, if buildings are going to be required by law to meet green standards, it is important that some mechanism is in place to confirm compliance.

What Type of Entity is Best for you in New Jersey

Mon, 15 Mar 2010 13:08:22 GMT

There are a number of different factors one must consider in forming an entity in New Jersey, chief among them: (a) how the entity will be taxed, (b) management, and (c) to what extent does the entity offer protection from personal liability. What follows is a brief description of entity formation in New Jersey, focusing on the above considerations.

“C” and “S” Corporations
Perhaps the most well known form of business entity is the “C” corporation. Companies such as Pepsi and Ford are “C” corporations. A “C” corporation is an entity that is separate and apart from its owners. What this means is that the earnings that are distributed to the owners are taxed both at the corporate level and at the personal level. The “S” corporation is a corporation with more favorable tax treatment. The profits and losses of a “S” corporation pass through to the shareholders of the corporation, and are therefore taxed only once. An “S” Corporation is not without its drawbacks. The current tax laws limit the number of investors, classes of stock, and have strict residency requirements. Shareholder liability in a corporation is limited to the shareholder’s investment in the corporation.

New Jersey’s corporate management structure is similar to that found in most states. Generally, New Jersey corporations are managed by a board of directors, who are elected by the shareholders. The directors stand in a fiduciary relationship to the corporation and must perform their duties in good faith. The board of directors of the corporation elect officers to handle the day-to-day affairs of the corporation.

Partnerships
General partnerships and limited partnerships enjoy “flow-through” tax treatment for tax purposes; the entity is not taxed and the partners report profits and losses directly on their personal income tax returns. Unless an agreement between the partners provides otherwise, each partner is entitled to share equally in the management of the partnership and has the authority to bind the partnership. The drawback of the general partnership is lack of limited liability protection. In contrast to a general partnership, limited partners in a limited partnership do not participate in the management of the partnership. A limited partnership must have at least one general partner and at least one limited partner. The general partner assumes personal liability for the debts and obligations of the partnership. The limited partners do not have any personal liability beyond the capital contributions they contribute to the partnership.

Limited Liability Companies
Like general partnerships and limited partnerships, limited liability companies’ (“LLCs”) profits and losses “pass through” the entity and are reflected and taxed on the individual tax returns of the members. LLCs can be managed by the members or one or more elected managers. The default rule in New Jersey is that the members manage the LLC. In this scenario, each member has the authority to bind the LLC. If the members opt to have the LLC managed by a board of managers, the members may appoint one or more managers to operate and control the business. In this instance, each manager is vested with the authority to bind the LLC.

Unlike a limited partnership, there is no requirement that at least one member of the LLC be responsible for the liabilities of the company. Furthermore, members are not liable for the debts of the LLC solely because they are members. Because of the ease of formation and its favorable liability treatment, the LLC has become increasingly popular in New Jersey.

"Women in Bluejeans"

Mon, 15 Mar 2010 00:17:55 GMT

While its been a period of time since my last entry as a guest blogger, Jim Chen's recent entry on Feminist Agricultural Law serves as a reminder of a related corollary. Specifically contrasting with the ongoing demise of traditional dominant farmers women are actively entering farming as independent owner operators. Yet whether as independent operators or as consumers women in agriculture remain primarily on the outside of mainstream legal investigations to the detriment of the nation's health.

A gendered perspective on food production is underscored when for example pesticide use in industrial agriculture is contemplated. Studies outside of legal academic investigations demonstrate that women take the brunt of the many toxic chemicals employed in conventional agriculture with the pact on their children obligating the further need of greater study. In contrast, formalistic investigations dominate studies on the regulatory state of farming leaving pesticide absorption rates for women and children on the margins of legal scrutiny.

Agricultural legal history moreover is dominated with well-defined gaps on the impact of gendered farming interests. Yet since the earlier colonial periods when female-farming interests confronted adverse federal hostility and arbitrary treatment of their independent operations. Further study of how they sought to defend their property moreover remains primarily lacking in formal legal studies.

Additional examples surface such as the active participation of women in the rural insurgency movements of the 1920s and 1930s that sought to protect independent owner operators. Yet once again rural women witnessed injurious treatment with consequences into the present. Until recently, the agricultural census for example failed to enumerate women operators in data sets thereby losing opportunities to assess gendered capital accumulation in the operation of their interests. Into the contemporary period women operators also continue to face inequities such as in accessing credit or failing to qualify for federal funds permitted dominant based agricultural interests in specialized programs notwithstanding their origins in the populism of the past.

Against the backdrop of inter alia increasing hunger levels, consumers seeking the specialized ethnic products that women produce, and the realm of food safety issues facing the nation from large scale food production, thereby renders imperative the above plea for gendered and feminist studies in law.

Marcellus Drilling

Sun, 14 Mar 2010 15:49:15 GMT

The Philadelphia Inquirer has an interesting article on drilling in the Marcellus Shale. It ranks, for example, the players in the region by number of wells drilled in the shale since 2008. The results ... well, take a look for yourselves.

NGV's

Sun, 14 Mar 2010 15:41:05 GMT

The Dallas Morning News has an interesting article on the views of Exxon Mobil Corp.'s CEO regarding natural gas vehicles. In sum - He has doubts about the wide-spread adoption of natural gas vehicles. He sees, however, significant potential for natural gas for power generation.

Feminist agricultural law

Sat, 13 Mar 2010 20:19:41 GMT

Let me begin with a scholarly confession: Ever since I read Helen Fisher, Anatomy of Love: A Natural History of Mating, Marriage, and Why We Stray (1993), nearly two decades ago, I've longed to write an article called Feminist Agricultural Law (or, alternatively, Agricultural Legal Feminism). Fisher's observations on agricultural technology stirred my blood:

The Plow. There is probably no single tool in human history that wreaked such havoc between women and men or stimulated so many changes in human patterns of sex and love as the plow. [Id. at 260.]

Alas, it never came to pass. I envisioned Feminist Agricultural Law as an offshoot from (or at least a section of) the anticipated conclusion to my would-be "Vanderbilt trilogy" of articles on agricultural law: The American Ideology, 48 Vand. L. Rev. 908 (1995) and Of Agriculture's First Disobedience and its Fruit, 48 Vand. L. Rev. 1261 (1995). I never did finish that third article. To be sure, I salvaged some of my work in Fugitives and Agrarians in a World Without Frontiers, 18 Cardozo L. Rev. 1031 (1996) (which, in the fashion of I'll Take My Stand's Stark Young, preached agrarian ideas by remote control from New York City), and in my subsequent scholarship on Wickard v. Filburn. But neither the grand conclusion nor Feminist Agricultural Law ever emerged from my fingertips.

Read the rest of this post . . . .My own failure to finish what I started, however, takes nothing away from the idea of feminist agricultural law. At least one Australian legal scholar, Malcolm Voyce, has devoted his career to sex-based differences in farmland tenure. Organizations such as American Agri-Women (on Twitter as @women4ag) advance the cause of women farmers. As a global matter, perhaps nothing contributes more to preparedness in times of disaster — let alone overall social justice — than the complete economic and political empowerment of women. As an open supporter of Feminist Law Professors (the blog) and feminist law professors (the group as a whole), I'm glad I made this point in the latest edition of Disaster Law and Policy.

The role of women in farming is as old as agrarian society, and it remains every bit as relevant and as contested as ever. Just today, Peggy Orenstein, author of the memoir Waiting for Daisy, performed a very clever twist on the theme of Michael Pollan's classic, The Omnivore's Dilemma: A Natural History of Four Meals (2006). Her New York Times essay, The femivore's dilemma, highlights a middle way that has drawn women seeking to avoid both the glass ceiling and the gilded cage: joining the growing cohort of chicks with chicks.

From the depths of remembrance and heights of romance, I now reach present time and real space. In the here and now, I remain painfully aware that I will probably never write a comprehensive piece called Feminist Agricultural Law. But I shall not flinch from promoting the idea, even if by so doing I am effectively assigning the mission of completing that piece to another scholar. I shall continue to ponder feminist agricultural law and agricultural legal feminism. These ideas lie close to the project — the one and only project — I regard as the sole legitimate expression of legal scholarship, that of translating legal knowledge for real-world use, that of realizing the dream of the law made flesh.

What Constitutes a Differing Site Condition?

ccheatha@wthf.com (Chris Cheatham) — Fri, 12 Mar 2010 22:25:38 GMT

[I have said many times that the legal principles that will apply to green building projects will be very similar to existing legal principles in the construction law field. On Fridays we will be reviewing legal developments from the construction industry that most likely will be applied to green building projects.]

When I prepare construction claims for clients, one of the first steps is to gather the facts and develop potential legal bases for the claims. There is one legal basis that clients seem to know, and argue for, more than any other: Differing Site Conditions.

A Differing Site Condition is essentially an unanticipated physical condition encountered by a contractor at a project site, which requires additional work by the contractor. Most federal contracts contain a Differing-Site-Condition clause. As described in Foster Constr. C.A. & Williams Bros. Co. v. U.S.:

"The purpose of a [differing site] conditions clause is thus to take at least some of the gamble on subsurface conditions out of bidding. Bidders need not weigh the cost and ease of making their own borings against the risk of encountering an adverse subsurface, and they need not consider how large a contingency should be added to the bid to cover the risk."

The typical example of a Differing Site Condition occurs when boulders or other large objects are unexpectedly found below the surface and require removal prior to construction.

Contractors often want to argue that a non-physical condition constitutes a Differing Site Condition. Here are two examples of non-physical conditions that I have seen argued as Differing Site Conditions:

1. The contractor expected certain labor conditions in the surrounding area. When he started the project, labor conditions had changed due to a competing project.

2. The contractor properly relies on site boundaries in preparing its bid. When the project starts, the site boundaries change.

Do you think these two scenarios constitute an actionable Differing-Site-Conditions claim?

Photo: ubac

President Tries to Jump Start Climate Legislation as Public Support Dwindles

Fri, 12 Mar 2010 20:24:24 GMT

The President called together key Senators and members of his cabinet in hopes of re-invigorating stalled discussions in the Senate over climate change legislation. This summer the House of Representatives passed a bill that would require greenhouse gas reductions of 17 percent by 2020 compared with 2005 levels. Since legislative debate moved to the Senate, a viable bill has yet to emerge.

Senators Kerry, Lieberman and Graham have been attempting to hammer together a compromise that they feel could garner the 60 votes needed in the Senate. At yesterday's meeting Senator Kerry stated he expects a bill to emerge from their discussions by the end of the month.

The renewed effort comes as a recent Gallup polls shows Americans with the highest level of skepticism for global warming:

The poll notes the highest skepticism is among Republicans. However, there is has been a general trend upward.

The poll results come after months of mounting criticism of the United Nations climate science panel's findings regarding the likelihood of climate change. Fact checks revealed some of the more drastic impacts claimed in the UN's report appear to have been exaggerated by the authors. This from the Times:

The latest criticism of the IPCC comes a week after reports in The Sunday Times forced it to retract claims in its benchmark 2007 report that the Himalayan glaciers would be largely melted by 2035. It turned out that the bogus claim had been lifted from a news report published in 1999 by New Scientist magazine.

Turns out the more likely date for melting the glaciers is a few hundred years away. Just yesterday the UN announced it would perform an independent review of the the study in the face of mounting criticism. This from the U.K. Guardian.

In an announcement at the UN in New York Ban Ki-moon, the UN secretary general, and Rajendra Pachauri, the much-criticised head of the Intergovernmental Panel on Climate Change, said the InterAcademy Council, which represents 15 national academies of science, would conduct the independent review.

The announcement follows months of controversy which, while not altering the scientific consensus on climate change, has given fresh ammunition to opponents of action on global warming.

The latest polling and issues at the UN form the backdrop to efforts to pass climate legislation and their influence should not be under appreciated. Some Senators are pushing for dropping cap and trade entirely from the bill leaving a national mandate on renewable energy. The President has commented he is not in favor of this approach and still believes a price on carbon is the way to go.

Senator Kerry made comments that the proposed bill to appear at the end of the month will look much different than anything which has been revealed to date. Most likely it will be much narrower in scope than the House passed bill. It may take a sector approach versus the much broader cap proposed in the House bill. Emissions from the utility sector could be the only regulated pollutants.

Regardless, with criticism mounting on the key UN report and public opinion showing reduced support, it will be tough to pass any climate legislation. At the same time, it appears the bills designed to prohibit the EPA from moving forward with greenhouse gas regulations under existing Clean Air Act authority are for show only.

Best guess is that all this political maneuvering will leave us with EPA regulations beginning this month and no climate legislation in 2010. Word to the wise...we will be revisiting this approach down the line.

Recent Reforms to UN's Clean Development Mechanism

Fri, 12 Mar 2010 14:43:55 GMT

This was written by Jennifer Smokelin and Dave Wagner.

Overshadowed by the activities in the final few days at the Copenhagen climate change conference, the UN agreed to revise some elements of its Clean Development Mechanism (CDM). Despite ongoing concerns about the long-term (post-2012) future of CDM, these reforms are significant.

Perhaps most significantly, the CDM reforms direct the CDM Executive Board to establish new procedures for stakeholders to appeal decisions. This on the heels of the CDM Executive Board’s controversial recent decision to reject applications from ten Chinese wind energy projects. The Executive Board has also been granted permission to streamline registration and issuance procedures for emission reduction projects and provide new funding to accelerate the development of CDM projects in countries with fewer than ten CDM approved projects in operation. Following a number of investigations which found that some of the firms tasked with independently verifying that CDM projects deliver real emission cuts had been cutting corners, the reforms also call for an improved system of “continuous performance monitoring” of these third-party certifiers.

Update on NuvaRing® Litigation

Fri, 12 Mar 2010 13:09:36 GMT

The NuvaRing® Mass Tort is presided over by Judge Brian R. Martinotti, in the New Jersey Superior Court - Bergen County. Previously, counsel for both plaintiffs and defendants had chosen ten initial bellwether cases for case specific discovery and trial. On, March 3, 2010, Judge Martinotti held a Case Management Conference. During that conference, Judge Martinotti determined that the discovery deadline on the initial bellwether cases would be March 15, 2011, culminating in proposed trial dates some time in May 2011.

As we have discussed in previous posts, studies have shown that the ingredients contained in the birth control product NuvaRing® have been linked to various forms of severe side-effects including: heart attack, stroke, deep vein thrombosis (also known as DVT or blood clots), internal organ damage, myocardial infarction and pulmonary embolism.

At Stark & Stark we pursue claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. Contact Stark & Stark to speak with one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturers of NuvaRing®.

Storage Report

Fri, 12 Mar 2010 13:03:47 GMT

The Energy Information Administration (EIA) is reporting a draw of 111 Bcf from storage last week, leaving 1,626 Bcf as of Friday, March 5, 2010. This is well within the 5-year range:

For more, see here.

CERAWeek

Fri, 12 Mar 2010 12:04:29 GMT

This has been CERAWeek in Houston, one of the largest industry conferences of the year. The NYT has a good article on how much of the conference seemed to focus on the opportunities presented by shale gas for the country. For other articles, see here at the Houston Chronicle.

Summary of Climate Legislation in the 111th Congress: Is Cap-and-Trade Dead?

Fri, 12 Mar 2010 02:01:10 GMT

In 2009, federal climate legislation stalled in the wake of economic downturn, health care reform, and the failure to reach an internationally binding agreement in Copenhagen. The unexpected loss of a Democratic Senate seat in January further weakened the prospects of enacting federal legislation this year. Recognizing that significant compromises in the content and scope of climate legislation will likely be required to pass a bill in 2010, proponents of climate legislation in the Senate have begun to explore alternatives to the economy-wide cap-and-trade model. These proposals include a cap-and-dividend scheme, a stand-alone energy bill, or a hybrid scheme combining one or more alternatives. Details on the policy shift, including recent Senate activity, are provided below.

Comprehensive Cap-and-Trade Climate Legislation: Still Viable but Unlikely

Economy-wide cap-and-trade is the centerpiece of the House-approved American Clean Energy and Security Act of 2009 (H.R. 2454, also known as the Waxman-Markey bill). The bill would initially target large stationary sources (> 25,000 mtCO2e), with smaller sources gradually phased-in as EPA lowers the emissions threshold. Uncapped sources would be subject to potential EPA regulation under Clean Air Act (CAA) Section 111 (New Source Performance Standards), but the bill would prohibit EPA from regulating GHGs under other key CAA programs (e.g., PSD and Title V). The bill would also require the development of industrial energy efficiency standards.

Although Waxman-Markey has been superseded by negotiations in the Senate, it has served, and will likely continue to serve, as a point of reference for future Senate work. For example, the Clean Energy Jobs and American Power Act (S. 1733, also known as the Kerry-Boxer bill) was modeled on the provisions of Waxman-Markey with several key modifications, including a slightly more stringent cap and the retention of EPA’s authority to regulate GHGs under the PSD and Title V programs. Strong opposition to EPA’s use of revised modeling in its economic impact analysis led Republicans to boycott the mark-up while it was in Committee, preventing formal debate and the consideration of amendments. As a result, the bill was generally considered dead on arrival in the Senate.

Despite these setbacks and the recent policy shift toward alternative climate measures (see below), a core group of industry and environmental groups continue to support economy-wide cap-and-trade. Edison Electric Institute and several of its member companies, for example, are advocating for an economy-wide approach.

Patchwork of Emerging Climate Policy Alternatives

In Fall 2009, Senators Kerry, Graham, and Lieberman initiated “dual track” negotiations involving industry groups and the White House in the development of bipartisan climate legislation. The Senators have thus far declined to release a framework for the legislation, a desire to “keep everything on the table.” Although the Senators initially appeared in favor of an economy-wide cap-and-trade system, recent statements indicate they may abandon cap-and-trade in favor of a hybrid approach that combines cap-and-dividend (see discussion of CLEAR below) with cap-and-trade for certain sectors. In order to garner the necessary 60 votes in the Senate, the bill is expected to feature significant compromises on incentives for nuclear power and expanded oil and gas drilling. The effort has already earned the support of the U.S. Chamber of Commerce, which is widely perceived as a leading critic of climate legislation.

A second bipartisan initiative in the Senate, the Carbon Limits and Energy for America’s Renewal (CLEAR) Act, is receiving an unexpected amount of support for its “cap and dividend” proposal. Under this approach, fossil fuel refineries and importers would be required to purchase “carbon shares” for each ton of carbon sold. 75% of the revenues would be refunded directly to U.S. residents through tax-exempt monthly dividends. The remaining 25% would fund energy technology research and development, adaptation, and assistance for energy-intensive and trade-sensitive sectors. Notably, only covered entities would be authorized to participate in trading (i.e., there would be no external market). According to Senators Cantwell and Collins, this feature is designed to avoid the creation of a new speculative commodity market that may cause volatile price spikes and harm to consumers and the economy. Over 40 companies and organizations have announced plans to lobby on the bill.

It is also possible that the Senate will pass an energy bill in lieu of, or perhaps in combination with, comprehensive climate legislation. Senator Graham recently circulated a draft stand-alone energy bill that would mandate “clean energy” production targets over the next 15 years. New nuclear facilities and coal-fired power plants that sequester a minimum of 65% of GHG emissions, as well as traditional renewable power sources such as wind and solar, would qualify as clean energy under the bill. Although Kerry and Lieberman have reviewed Graham’s draft bill, they have not yet agreed to include it in the comprehensive package. Others Senators are considering whether to revive the American Clean Energy Leadership Act (S. 1462, also known as the Bingaman Energy Bill), which passed the House Energy and Natural Resources Committee in June 2009.

Other alternatives under consideration include an electric utility sector cap on GHG emissions (Voinovich and Lugar), a carbon tax (Dorgan, Murkowski, and Corker), and a bill that would reduce emissions by doubling nuclear power production and promoting development of carbon capture and storage, biofuels, and solar technologies (Alexander and Webb). While these alternatives are not likely to be politically viable on their own, Senators Kerry, Graham and Lieberman may incorporate certain elements into the bipartisan bill they ultimately introduce. The Senators have also initiated discussions with Senators Cantwell and Collins, reflecting the possibility of a merger of the CLEAR Act and the bipartisan bill.

Temple Law School Symposium to Address Green IP

elane@luce.com. (Eric Lane) — Fri, 12 Mar 2010 01:46:37 GMT

The Temple Journal of Science, Technology, and Environmental Law’s (TJSTEL) 2010 annual symposium will be about legal issues at the intersection of intellectual property and green technologies. Entitled “The Greening of Intellectual Property,” the symposium will examine the many points of intersection between the intellectual property field and the green movement and assess the importance of this overlap to the legal community, [...]

The Temple Journal of Science, Technology, and Environmental Law’s (TJSTEL) 2010 annual symposium will be about legal issues at the intersection of intellectual property and green technologies.

Entitled “The Greening of Intellectual Property,” the symposium will examine

the many points of intersection between the intellectual property field and the green movement and assess the importance of this overlap to the legal community, the nation, and the world

The speakers include Robert Bahr, the Acting Associate Commissioner for Patent Examination Policy, who will talk about the USPTO’s Green Technology Pilot Program and Duke Law Professor Jerome Reichman, who will speak about green innovation strategies.

The first panel is entitled “IP Rights: Helping or Hurting Green Technology? The Effect of Green Energy Patents on Pollution and Emissions Programs in Developing Countries” and will be moderated by Temple Professor Greg Mandel.

The second panel will discuss the effects of recent court decisions such as In re Bilski on green patenting. An ethics panel will include Daniel Desmond, Pennsylvania’s “Energy Czar,” who has been involved in developing the state’s alternative energy policies.

The symposium will be held on Friday, March 19th at Temple University. The full schedule is here: schedule-of-events-2010.pdf. Registration information is available here.

Green IP has become a hot academic topic, with several law schools holding symposia on the subject in the last year or so.

Conservation Advocacy Group Files Lawsuit to Force ESA Decisions on Dozens of Pacific Northwest Species

Thu, 11 Mar 2010 23:58:58 GMT

Last month, the Center for Biological Diversity (CBD) filed a lawsuit in the U.S. District Court for the District of Oregon alleging that the U.S. Fish and Wildlife Service violated the Endangered Species Act (ESA) by failing to take action on a number of listing petitions.

When a listing is petitioned, the Fish and Wildlife Service has 90 days to determine whether action may be warranted and then 12 months to issue it's finding.

The CBD’s lawsuit alleges that the Service has failed to issue 90-day and 12-month findings, for dozens of northwest species in violation of the ESA.

Stoel Rives attorney Ryan Steen issued a law alert exploring the significant implications surrounding these suits and the potential ESA listings.

BC Hydro Selects 19 Projects in First Stage of Clean Power Call

Thu, 11 Mar 2010 23:35:48 GMT

470 days after it received proposals from 43 proponents for 68 clean energy projects, BC Hydro announced today the results of its 2008 Clean Power Call.

In the first stage of awards, BC Hydro selected 19 projects for electricity purchase agreements (EPA's) comprising 2,450 GWh/year being less than half of the 5,000 GWh/year acquisition target it had requested from developers in the 2008 Clean Power Call.

Of the 19 projects selected for EPA today, run-of-river and wind projects almost evenly split the generation capacity awarded. This is noteworthy because currently in BC there is only one operating wind park, while there are over 35 run-of-river projects generating to the BC grid. Perhaps, BC Hydro may be seeking more wind energy as quality run-of-river projects become more difficult to find.

Here are more details from today's announcement:

14 hydro-electric (run-of-river) projects were selected and will provide BC Hydro with 1,203 GWh of firm electricity per year. The successful run-of-river developers, projects and respective project capacity are as follows:

C-Free Power Corp., a 19 MW's in Gold Bridge, BC
Cloudworks Energy Inc., 3 projects (37, 18 and 21MWs) in Harrison Hot Springs and Mission, BC
Creek Power Inc. (Innergex and Ledcor owned), 3 projects (74, 23 and 16MWs) in Pemberton, BC
Kwagis Power LP (Brookfield Renewable Power), one 45MW project in Port McNeill, BC
NI Hydro Holding Corp. (Stlixwim First Project Corp. and Stlixwim Partnership), 3 projects (45MW) in Sechelt, BC
Plutonic Power Corporation and GE Energy, one 124 MW project in Powell River, BC
Selkirk Power Company Ltd., one 44MW project in Golden, BC
Swift Power Corp., one 20 MW project in Terrace, BC.

Five wind energy projects were selected and will provide BC Hydro with 1,247 GWh of firm electricity per year. The successful wind developers, projects and respective project capacity are as follows:

Finavera Renewables Inc., 4 projects (117, 45, 71 and 60MWs) in Tumbler Ridge and Chetwynd, BC
CP Renewable Energy Limited (Capital Power, formerly EPCOR), one 142 MW project in Tumbler Ridge, BC

Congratulations to all the developers, whose patience has finally been rewarded.

The bulk of the work has only now begun. Immediate next steps for the above developers are the Section 71 hearings before the British Columbia Utilities Commission and raising capital to help finance construction of these projects.

Those developers with projects still remaining in the Clean Power Call who were not awarded EPA's today (there are 28) will take comfort in BC Hydro's statement that it expects to select additional projects for EPA awards in late March.

Given that only half of the expected capacity of the Clean Power Call has been filled by today's 19 EPA awards, there is certainly more to come on this good news story for the BC renewable energy sector.

You can follow me and the Megawatt blog on Twitter.

Treasury Creates Safe Harbor for Smart Grid Investment Grants

Thu, 11 Mar 2010 23:27:17 GMT

Yesterday, the Energy and Treasury Departments jointly issued guidance regarding the federal income tax treatment of Smart Grid Investment Grant payments received pursuant to the American Recovery and Reinvestment Act (ARRA).

The guidance, which was issued as Revenue Procedure 2010-20, generally provides that a corporation receiving a specified grant will not recognize taxable income upon receipt of the grant, but will be required to reduce the tax basis of its assets by the amount of the grant.

Stoel Rives issued a law alert today regarding this guidance, further exploring what the guidance addresses, and notably, does not address.

National Hydropower Association Regional Meeting Underway in Juneau

Thu, 11 Mar 2010 23:22:52 GMT

Mary Jo Miller from our Portland office and Jonn Kauffman of our Anchorage office are in Juneau today and tomorrow attending the National Hydropower Association's Regional meeting, where Mary Jo is participating on a panel discussing funding mechanisms available for building hydropower projects. Mary Jo will present a case study describing the various loan, grant, and tax incentive funds used by one of our clients, the Central Oregon Irrigation District, to replace its existing porous open irrigation canal with an underground steel pipe combined with a 5MW hydropower system. The project will conserve water supply, increase river flow and water quality for local fish and wildlife species, and generate clean power for the local community. COID accessed eight different sources of funding to make this project a reality. Mary Jo's case study presentation is available here.

Short-Term Energy Outlook

Thu, 11 Mar 2010 21:52:57 GMT

The Energy Information Administration (EIA) has released its Short-Term Energy Outlook for March, 2010. Regarding natural gas prices:

EIA expects this year’s annual average natural gas Henry Hub spot price to be $5.17 per million Btu (MMBtu), a $1.22-per-MMBtu increase over the 2009 average. EIA projects price increases to continue in 2011, averaging $5.65 per MMBtu for the year. Projected working gas inventories end the first quarter of 2010 at about 1,550 billion cubic feet (Bcf) compared with 1,644 Bcf in the previous Outlook because of colder-than-normal weather in February. Natural-gas-weighted heating degree-days were nearly 11 percent above the 30-year norm last month.

It makes that prediction based in part on an expectation that total marketed natural gas production will decline by 2.7 percent to 58.7 Bcf/d. For more, see here.

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