Power Engineering - Commentary: High court decision needs to become well-known in energy management circles

June 3, 2002 -- The Supreme Court recently sent a well-known patent protection case back to the U.S. Court of Appeals for the Federal Circuit for a rehearing after rejecting a lower court's decision on the matter, and one energy industry inventor celebrated the news.

[Editor's Note: The Festo case, as it is commonly called in the patent community, attempts to resolve whether new products can be essentially copies of patented products with only a few changes. The Supreme Court threw out the appeals court decision, saying it was wrong to reinterpret a long-standing doctrine of patent law in a way that would makes it harder for inventors to prove patent infringement, Reuters News Service reported.

The long-standing doctrine is called the "doctrine of equivalents," in which a product that is not an exact copy could still infringe an existing patent if it is only different from the patented product in insubstantial ways. The Court of Appeals for the Federal Circuit will now try to draw the line between protecting patents and helping new inventors improve on ideas, the USA TODAY reported.

Festo is an American subsidiary of a German company which makes a magnetic rodless cylinder for the robotics industry. Its rival, SMC, a division of the Japanese company Shoketsu Kinzoku Kogyo Kabushiki, developed a very similar device at a lower price, prompting Festo to sue for patent infringement. An appeals court in 2001 had ruled in favor of SMC, stunning the patent community.]

On the technology front, the U.S. Supreme Court weighed in last week with a patent decision that will affect the energy industry, a big user of advanced technology. Thus, the potential impact of the high court decision needs to become well known in energy management circles.

The nearly 15-year-old Festo case was destined to decide (and did) if copycat invention would be the rule of law or not in this new century in America, and the unanimous high court ruling said no. In my view, by rewarding innovation the high court assured our technological and business leadership for many decades to come, if not another 100+ years.

According to a USA Today report last week, about 1.2 million patents are affected and billions of dollars in future settlements. Some recent potential awards are approaching $1 billion, according to an attorney in the article.

The US Patent Office is probably going to tighten up on what constitutes an "improvement" claim to a previous patented innovation. Adjustments to an idea that are claimed to save money in manufacturing when the idea is essentially similar to an existing patent will likely not be allowed under the new rules.

To my view, the courts have simply gone back to the way patents were decided; if it isn't a real innovation, it shouldn't get a patent in the first place.

The bottom line is that if you make something cheaper and/or better and base it on a patent that is essentially similar to the original innovators idea, the innovator will almost certainly be collecting their royalties.

So watch out, corporate America, in addition to cooking your books and lying to your employees and shareholders, it won't pay to be a copycat either.

Lloyd Weaver is a mechanical engineer and inventor in wastewater and energy technologies. He is the inventor of PCPG or Pulverized Coal Pressurized Gasifier. Just as the pulverized coal burner revolutionized steam power about 50 years ago, inventor Weaver envisions PCPG improvements and new processes can re-revolutionize pulverized technology to super-clean 50% plus efficiencies using combined cycles. Weaver can be reached at lloyd@suscom-maine.net.

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