The role of intellectual property in the renewable energy sector

The energy transition is well underway. The spotlight will fall on the UK later this year when the 2021 United Nations climate change conference COP26 comes to Glasgow, with a view to setting earlier and more ambitious zero emissions targets. Reduced or more efficient and sustainable use of hydrocarbons to support people’s activities across the globe is only half the picture. Renewable energy sources constitute an increasingly important part of the energy mix, and the business case for investment in the development of renewable energies technologies grows ever stronger.

As with other sectors, intellectual property plays a key role in enabling companies to protect their investments in research and development, to maximise business returns and differentiate themselves in a fiercely competitive market.

In this article, IP partner Jon Moorhouse discusses the role of IP in the rollout of renewable energy and provides an overview of some of the considerations the industry engages with on a regular basis.

As with other sectors, patents play a central role in protecting rights in technology. Within renewables, most investment continues to be in solar and wind power. For instance, a 2020 World Intellectual Property Office study found that over half of renewables-related patent applications were in relation to solar, with the next highest proportion (roughly 25%) relating to wind.

Alongside patents, many renewables companies will use – and carefully protect – trade secrets and confidential information on various aspects of the relevant hardware and how they manufacture and deploy it. This could be confidential design documents, the results of data interpretation and analysis, or the algorithms and software developed to do this.

Wind and solar energy

A fundamental aspect of wind power generation is the turbine, and it is no surprise that turbine technology is a heavily patented technology area, and inevitably the subject of patent litigation.

For example, earlier this year, engineering giant General Electric recently brought a patent infringement action in the UK High Court against its competitor Siemens Gamesa Renewable Energy, concerning a method of keeping the wind turbines connected to power even if the grid voltage temporarily drops, so that the critical pitch of the blades can still be controlled.

At stake for Siemens with defending this claim is the ability to supply its turbines to other major UK windfarm projects. Patent disputes are not swiftly resolved and even if Siemens prevails, there could be costly delays. If Siemens loses, it will face the usual challenges of developing a work-around solution, or perhaps paying an appropriate licence fee.

Solar power, on the other hand, could be said to differ from wind in that solar energy companies in Europe will often buy in, rather than manufacture, the hardware they need, and will focus their expertise on project design and development.

This means that manufacturers may secure patent rights on different aspects of their hardware, and the solar energy provider will need to seek appropriate contractual protections and licences in the relevant procurement contracts, such as all necessary software licences and an indemnity in relation to any third-party IP infringement claims brought arising from their deployment of the hardware in a new field.

The solar company would then develop and protect its own in-house know-how around design optimisation – what factors to consider when selecting a site, the topography of the solar array, storage and design, as well as project development and asset management – that it will leverage in order to differentiate itself from the competition.

Partnering on projects

A further challenge, not unique to this sector, is how to interact with R&D partners, whether from academia or industry, and with JV partners or service companies when setting up large projects. It is vital to ensure careful contractual management of the exchange – or not – of existing information and IP rights between parties, and of the ownership and use rights for any new IP developed. Unauthorised publication of a key invention at the wrong time could destroy novelty and the ability to obtain an exclusive position via a patent, or otherwise diminish a competitive advantage.

For example, a solar energy company may well need to engage engineering, procurement and construction contractors. It will most likely need to share design documents and other confidential information in order to instruct the contractor: the service contract will need to have appropriate secrecy and restricted use arrangements in place and the solar company will still need to be selective as to what it actually shares with a contractor in order to implement the project.

Brand and reputation management

Technology is not the only issue. Reputation is paramount — arguably more important than ever for energy companies looking to plot a successful course through the energy transition, leveraging their ‘green’ credentials to retain their societal licence to operate, by responsive dialogue with local communities and actively supporting the global sustainability agenda.

Copyright, trademark and design right protection of names, logos, packaging and broader branding, along with concerted efforts to combat counterfeiting, vigilance on the internet and social media and so on, will all play key roles for businesses in the renewable energy sector.

The creation, protection and exploitation of intellectual property provides fundamental support for renewables businesses’ objectives at each stage of the cycle: managing reputation and brand alongside deployment of technology, from energy generation to storage, distribution and ultimately use by the consumer.

This is an abridged version of a longer article that first appeared in Intellectual Property Magazine in June 2021.