Renewable Energy Insights

President Obama Issues a Memorandum Encouraging Development of the U.S. Electric Transmission Grid

Renewable Energy Insights — Mon, 17 Jun 2013 20:58:23 +0000

On June 7, 2013, President Obama issued a memorandum titled “Transforming our Nation’s Electric Grid Through Improved Siting, Permitting and Review.” The memo directs the Secretaries of Agriculture, Commerce, Defense, Energy, and the Interior (collectively the “Secretaries”) to engage in certain actions aimed at establishing energy right-of-way corridors on Federal lands (“energy corridors”) and improved transmission siting, permitting, and review processes. The memo focuses on expanding energy corridors outside those designated by the Secretaries of the Interior and Agriculture in 2009 in 11 contiguous Western States (as defined in section 368 of the Energy Policy Act of 2005). [Read more →]

Judge Rules Solar Cos. Must Face DuPont Patent Claims

Renewable Energy Insights — Thu, 13 Jun 2013 14:33:42 +0000

An Oregon federal judge on Friday refused to clear SolarWorld Industries America Inc. of allegations it sold photovoltaic cells with a type of conductive paste that infringed a DuPont Co. patent, ruling there were factual disputes that a jury should consider.
U.S. Magistrate Judge Dennis James Hubel denied a motion for summary judgment lodged by SolarWorld and co-defendant Heraeus Precious Metals North America Conshohocken LLC, which makes silver photovoltaic pastes that SolarWorld incorporates in solar cells, according to the suit. SolarWorld and Heraeus sought a ruling that they had not infringed DuPont’s U.S. Patent Number 8,158,504.
In shooting down the summary judgment motion, Judge Hubel found there was a legitimate factual dispute regarding DuPont’s infringement allegations under the doctrine of equivalents that would be more appropriate for a jury to hear, according to the judge’s order.
“It is apparent to the court from the record already existing in this case that there are genuine factual issues as to whether Heraeus’s accused products infringe the ‘504 patent under the [doctrine of equivalents],” the magistrate said.
Also on Friday, Judge Hubel issued a separate order ruling on DuPont’s motion to dismiss counterclaims lodged against it by Heraeus. The counterclaims alleged that DuPont had engaged in unfair competition under the Lanham Act by issuing a press release “falsely representing” that Heraeus had stolen intellectual property and infringed DuPont’s patents.
Judge Hubel on Friday kept in place the Heraeus counterclaim regarding the intellectual property theft issue, but dismissed the portion of the counterclaims regarding the patent infringement issue. He did, however, grant Heraeus an opportunity to amend the dismissed part of the counterclaim.
DuPont spokesman Daniel Turner said Monday that the company “is pleased with the court’s rulings and is committed to enforcing its intellectual property.”
An attorney representing Heraeus and SolarWorld, Matthew Moore of Latham & Watkins LLP, told Law360 he was also happy with Friday’s rulings. As a result of the summary judgment ruling, he said, DuPont’s patent infringement claim would be refined to one under the doctrine of equivalents.
“We think the results are favorable because the court has allowed us to keep the Lanham Act claim and has narrowed the infringement claim,” Moore said.
DuPont first lodged the suit in June 2012, alleging that Heraeus and SolarWorld infringed the ’504 patent. Heraeus’ H92XX and H94XX pastes allegedly infringed the DuPont patent, according to the complaint, and SolarWorld sold solar cells containing those Heraeus-made pastes.
“This case demonstrates that DuPont will act swiftly to enforce our intellectual property rights against any infringers and protect our investment and commitment to DuPont shareholders and customers,” David B. Miller, president of DuPont’s electric unit, said in a statement at the time.
Heraeus eventually lobbed counterclaims accusing DuPont of issuing an allegedly misleading press release that implied that Heraeus had engaged in “intellectual property theft” and had infringed DuPont’s patents.
Additionally, in April, Heraeus and SolarWorld filed a motion for summary judgment, asking the court to find they had not infringed the ’504 patent. Judge Hubel on Friday denied that motion.
The suit regarding the ’504 patent followed an earlier complaint, lodged in September 2011, which accused Heraeus of infringing another DuPont patent by making the H92XX and H94XX pastes. SolarWorld was not named as a defendant in the September 2011 suit, which is pending in Delaware federal court.
DuPont is represented by Peter E. Heuser and Devon Zastrow Newman of Schwabe Williamson & Wyatt PC, as well as by Matthew W. Brewer, Sean G. Gallagher, Adam K. Mortara and Asha L.I. Spencer of Bartlit Beck Herman Palenchar & Scott LLP.
SolarWorld and Heraeus are represented by Maximilian A. Grant, Matthew J. Moore, Limor L. Rabie and Elizabeth M. Roesel of Latham & Watkins LLP, Steven K. Blackhurst of Ater Wynne LLP and Alexander C. Johnson Jr. of Marger Johnson & McCollom PC.
The case is E.I. DuPont De Nemours & Co. v. Heraeus Precious Metals North America Conshohocken LLC et al., case number 3:12-cv-01104, in the U.S. District Court for the District of Oregon.

New Carbon Costs Signal Obama’s Stiffer Stance On Pollution

Renewable Energy Insights — Tue, 11 Jun 2013 17:37:34 +0000

The Obama administration recently increased the “social cost” of carbon emissions in crafting federal regulations, a move experts say reinforces expectations that it will take a tough stance when setting emissions standards and assessing the environmental impact of major projects such as the Keystone XL pipeline.

DOI Announces July Auction of 160,000 Acres for Offshore Wind Development

Renewable Energy Insights — Tue, 11 Jun 2013 17:36:21 +0000

On Wednesday, June 5, 2013, the Department of Interior’s Bureau of Ocean Energy Management (“BOEM”) issued the Final Sale Notice for the sale of commercial wind energy leases on the Outer Continental Shelf. The auction is scheduled to take place on July 31, 2013 and will offer 164,750 acres for commercial wind energy leasing off the coast of Rhode Island and Massachusetts. BOEM will simultaneously auction the area as two separate leases. [Read more →]

Supreme Court Overturns U.K. Energy Windfall Tax Decision

Renewable Energy Insights — Wed, 29 May 2013 14:20:12 +0000

On May 20, 2013, the U.S. Supreme Court ruled that a “windfall tax” imposed on a subsidiary of PPL Corporation (“PPL”) by the United Kingdom (“U.K.”) is creditable for U.S. tax purposes. The Supreme Court held that the predominant character of the tax was tantamount to an excessive profit tax, and therefore, is classified as an income tax and creditable for U.S. purposes. The Supreme Court’s ruling overturned the U.S. Court of Appeals for the Third Circuit’s (“Third Circuit”) prior decision on the matter.

In 1997, the U.K. imposed the one-time windfall tax on 32 U.K. companies that were privatized between 1984 and 1996. The 23% tax was applied to any additional profits that the companies earned beyond what the companies would have earned if they remained under government control. PPL indirectly owns 25% of one of those companies, South Western Electricity. Due to the windfall tax, PPL claimed a foreign tax credit on its 1997 U.S. federal income-tax return. While the Commissioner of Internal Revenue rejected the credit, on September 9, 2010, the U.S. Tax Court held that the windfall tax was creditable for U.S. tax purposes. On December 22, 2011, the Third Circuit reversed the Tax Court’s decision, finding that the tax was not creditable because it was a tax based on a valuation of the company, and not an income tax. PPL appealed the Third Circuit’s decision to the Supreme Court.

In its appeal, PPL noted that the Internal Revenue Code Section 901(b)(1) allows a credit for U.S tax purposes to any “income, war profits, and excess profits” that are paid to a foreign government. PPL argued that the substance of the windfall tax was equivalent to that of a U.S. income tax under Section 901(b)(1). According to PPL, any “tax based on profits above some threshold is an excess profits tax.”

The Supreme Court agreed. Justice Clarence Thomas, writing for a unanimous Supreme Court, held that the “predominant character of the windfall tax is an excess profits tax, a category of income tax in the U.S. sense.” In the analysis, Justice Thomas noted that for U.S. tax purposes, the classification is not determined on how the foreign government classifies the tax, but whether the tax in the U.S. would be classified as an income, war profits, or excessive profit tax. Justice Thomas concluded that regardless of the U.K.’s classification of the tax based on the difference of two values, the tax is nonetheless based on net income, and “[t]he economic substance of the windfall tax is that of U.S. income tax.”

A copy of the Supreme Court’s decision is available here.