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Law360, New York (July 31, 2008) — The number of green energy patents in the United States continues to climb as companies look to capitalize on the public’s growing concern over climate change.

Stuart Soffer, a consultant with IPriori Inc., which offers expert services in intellectual property, said the U.S. Patent and Trademark Office granted 1,068 green energy patents in 2007, up from 424 in 1998.

“Between those two dates, they’ve been increasing essentially every year,” Soffer said.

He added that the biggest increase occurred in patents that refer to global warming, along with compact florescent and wind energy patents.

“It coincides with climate change as a major, serious problem settling into the popular consciousness,” Eric L. Lane, author of the Green Patent Blog and a patent attorney at Luce Forward Hamilton & Scripps LLP, said of the rise in green patents. “In Europe it was more of an issue before it became an issue here.”

IP boutique law firm Heslin Rothenberg Farley & Mesiti PC also tracks the number of patents granted across the clean energy sector. It found that the PTO granted about 900 green energy patents in 2007, up from about 725 in 2002.

There is no official way to define a green patent, and both Soffer and Heslin Rothenberg have slightly different methodologies.

According to Heslin Rothenberg, patents involving fuel cells are the most prevalent green patents, with over 120 issued in the first quarter of 2008. However, they are slowly trending downward since reaching their peak in late 2004, the firm reports.

Hybrid/electric vehicle patents and solar patents are also trending downward, while the number of wind patents and tidal or wave energy patents is increasing, according to the firm.

The firm found that in the first quarter of this year, Honda had the most new clean energy patents with 16, followed by General Electric and General Motors with 11 each.

Nissan, Toyota, Hyundai and Ford were all in the top 10. Meanwhile, more than 50 U.S. patents were granted to Japanese companies over that time period, more than 15 patents were granted to German companies and more than 20 patents were granted to Michigan-based companies, all places with a large automotive industry.

“Those are the companies that have certainly the most to gain and have the most resources to pursue [patents],” said David Miranda, a litigation partner with Heslin Rothenberg.

Soffer confirmed that although green patents cut across many different types of technologies, it is mostly big companies, from DuPont to Canon to Shell, that are applying for them.

Nonetheless, some smaller companies are getting into the act as well.

Gerald T. Welch, a partner at Sonnenschein Nath & Rosenthal LLP, said he represented a company named Independent Natural Resources Inc. that recently had five patents issued in wave technology.

According to Welch, INRI is planning to install a field of 18 pumps in the Gulf of Mexico that would make it the first company to commercially harvest wave energy.

He said one square mile of these pumps would generate as much energy as 60 square miles of wind turbines.

“This project has been nursed by angels for seven years,” Welch said. “When you can generate a kilowatt hour for 3 cents a kilowatt hour, all of a sudden there’s a huge amount of interest.”

There is an 18-month lag period between when a patent is filed and when it is published, and then an even longer period before the PTO decides whether or not to grant it. As a result, attorneys are predicting even more green energy patent filings in the future, along with more commercialization of the technologies, due to skyrocketing gas prices.

“Investment in fuel cells will continue as a result of the concern over gasoline prices,” Miranda said.

He added that there would also likely be an increase in the number of patents related to hybrid or electric vehicles.

For his part, Lane said it was hard to make a direct correlation between rising gas prices and more green energy patents because of the lag time between when a patent is filed and when it is published.

He added, however, that the overall number of green energy patents was definitely going up, and that these numbers were indicative of other trends in the clean technology sector.

“I think in general, patent filings do reflect in a broad way the amount of money that’s going into the R&D, and obviously, every year clean tech venture money goes up,” Lane said.

Thus far, there hasn’t been much patent litigation between the various green energy companies, but attorneys are predicting that will eventually change.

“As any industry develops, patent litigation rises, and this will be no different,” Lane said. “There’s a lot of competition.”

He added that there would likely be “clean tech patent trolls” at some point as well.

In one possibly prescient case, patent holding company Paice LLC sued Toyota a month ago for selling hybrid vehicles that allegedly infringed its patent.

Meanwhile, Tesla Motors and Fisker Automotive are in a trade secrets dispute over electric car designs. Additional lawsuits involving wind power have been filed with the International Trade Commission.

“I think that certainly when you have more patents in a particular field, the increase in patents will result in a corresponding increase in litigation,” Miranda said.