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On August 7, 2009, the administrative law judge assigned to the investigation issued an initial determination finding a violation of Section 337. On review, however, the ITC commissioners reversed that determination. In its opinion, the ITC found that all three of GE’s patents were valid but that there was no infringement. In addition, the ITC concluded that GE had not shown the existence of a protectable domestic industry with respect to one of the patents. GE is planning to appeal the ITC’s decision to the Federal Circuit. In addition, GE recently filed a complaint against Mitsubishi in the US District Court for the Northern District of Texas alleging infringement of two more of GE’s 148 patents relating to wind turbine technology.

These cases involve two major players in the rapidly expanding wind turbine industry. According to a June 2009 report issued by the ITC, from 2003 to 2008, imports of wind-powered generating sets increased more than 600 percent to $2.5 billion annually, and GE’s domestic wind turbine sales rose by over 300 percent during the same period. In 2008, GE was the leading wind turbine manufacturer in the United States, with a 43 percent market share, while Mitsubishi was ranked seventh. Globally, GE was the world’s second largest supplier of wind turbines, with a 16.7 percent market share, while Mitsubishi was ranked eleventh, with a 2.6 percent market share.

The ITC investigation attracted considerable attention from lawmakers, in part because of the US government’s desire to promote the development of clean energy technology and the use of renewable energy. Seventeen members of Congress wrote to the ITC prior to the issuance of its final determination. Senators Blanche Lincoln and Mark Pryor of Arkansas, where Mitsubishi plans to construct a $100 million wind turbine manufacturing facility, wrote a letter stating, “[p]romoting a diversity of technologies in the wind energy sector will be essential if the nation is to achieve the Administration’s goal of developing 20 percent of our electricity from wind by 2030.” President Obama has made reference to achieving such a goal, which was the subject of a July 2008 US Department of Energy report entitled 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply. Meanwhile, Senators Charles Schumer and Kirsten Gillibrand of New York, where GE recently opened its $45 million Renewable Energy Global Headquarters, wrote a letter warning that: “Any efforts that weaken intellectual property right protections relating to clean technology pose a substantial competitive risk to U.S. businesses and workers and inhibit the creation of new green jobs and the transition to a green economy.”

The ITC’s investigation is another example of what appears to be a steady increase in litigation over clean energy patents. Last year we reported on a lawsuit between Paice LLC and Toyota Motor Company over patents related to hybrid electric vehicles. Paice has since filed a complaint with the ITC alleging that Toyota has violated Section 337 by importing hybrid electric vehicles and components that infringe Paice’s U.S. Patent No. 5,343,970. The investigation is Certain Hybrid Electric Vehicles and Components Thereof, Inv. No. 337-TA-688.