By Eric Schweibenz
On October 4, 2011, Westinghouse Solar, Inc. (“Westinghouse Solar”) and its subsidiary Andalay Solar, Inc. (“Andalay”) (collectively, “Westinghouse”)—both of Campbell, California—filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Zep Solar, Inc. of San Rafael, California (“Zep”), Canadian Solar Inc. of Canada, and Canadian Solar (USA) Inc. of San Ramon, California (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain integrated solar power systems and components thereof that infringe one or more claims of U.S. Patent Nos. 7,406,800 (the ‘800 patent) and 7,987,641 (the ‘641 patent) (collectively, the “asserted patents”).

According to the complaint, the asserted patents generally relate to a solar panel with integrated racking and grounding.  In particular, the asserted patents are directed to an integrated solar module frame and racking system for a solar panel.  According to the complaint, splices couple the solar modules together into a larger rooftop array structure composed of multiple modules.  The racking system allows the solar modules to connect to a roof through use of brackets.  The integrated solar module frame and racking system allows for rapid installation of the solar panel on a roof with a minimal number of parts required for assembly.  Individual solar modules may be easily added and connected to existing modules as desired.

In the complaint, Westinghouse states that the Proposed Respondents import and sell products that infringe the asserted patents.  The complaint specifically names the “Zep System”—and solar power systems that incorporate and/or are compatible with the Zep System—as infringing products.

Regarding domestic industry, Westinghouse states that its Andalay System practices one or more claims of each of the asserted patents.  According to the complaint, Westinghouse employs over 36 employees in the U.S., whose work can be categorized within four core functions—research and development, operations, sales and marketing, and general/administrative.  The complaint states that Westinghouse markets and sells its Andalay System and related products to a network of authorized dealers across the country, including Lowe’s Home Improvement Stores, Lennar Homes, Icon Solar Power, LLC, Econ Solar Group, Real Goods Solar, and REC Solar. Additionally, Westinghouse specifically refers to its headquarters in Campbell, California and to a warehouse facility in San Jose, California.  Westinghouse further states that, for calendar years 2009-2010, the total costs that it has incurred in the U.S. that are attributable to the design, manufacture, marketing, sale, and distribution of its Andalay System are at least $37,247,005.

As to related litigation, Westinghouse states that Akeena Solar, Inc. (the entity now known as Westinghouse Solar) and Andalay initiated a lawsuit against Zep and several of Zep’s distributors in the U.S. District Court for the Northern District of California on October 22, 2009, alleging infringement of the ‘800 patent and seeking a declaratory judgment of non-infringement of one of Zep’s patents.  Zep then sought reexamination of the ‘800 patent, and the district court stayed the litigation pending the reexamination.  At the conclusion of the reexamination, the U.S. Patent and Trademark Office cancelled nine of the twelve claims of the ‘800 patent.  Zep then submitted a second request for reexamination targeting the three remaining claims of the ‘800 patent, and this second reexamination is still ongoing (and the district court case remains stayed).  Additionally, Westinghouse states that Zep and two if its licensees initiated a lawsuit against Westinghouse and Akeena Solar, Inc. in the U.S. District Court for the Northern District of California on August 2, 2011, seeking a declaratory judgment of non-infringement and invalidity of the ‘641 patent.  Lastly, Westinghouse states that Zep has filed a request for reexamination of the ‘641 patent, and that this reexamination proceeding is ongoing.

With respect to potential remedy, Westinghouse requests that the Commission issue a permanent exclusion order and a permanent cease and desist order directed at the Proposed Respondents.