By John Presper

On January 26, 2022, the ITC issued the public version of its opinion finding a violation of section 337 in Certain Variable Speed Wind Turbine Generators and Components Thereof (Inv. No. 337-TA-1218).

By way of background, this investigation was instituted based on a July 31, 2020 complaint filed by General Electric Company (“GE”) alleging violations of section 337 by Siemens Gamesa Renewable Energy Inc., Siemens Gamesa Renewable Energy A/S, and Gamesa Electric, S.A.U. (collectively, “SGRE”) based on the importation/sale of certain variable speed wind turbine generators and components thereof that infringed one of more claims of U.S. Patent Nos. 6,921,985 (“the ’985 patent”) and 7,629,705 (“the ’705 patent”).  On September 10, 2021, after an evidentiary hearing, ALJ Clark S. Cheney issued an initial determination (“ID”) finding a violation of section 337 based on the infringement of claims 1, 6, 12, 29, 30, 33-35, and 37 of the ’985 patent by SGRE’s accused products (described in the complaint as “variable speed wind turbine generators having low and zero voltage ride through capability and components thereof, namely generators, power converters, uninterruptible power supplies, turbine controllers, blade pitch control systems, and converter controllers”).  See our October 22, 2021 post for more details regarding the ID.

According to the opinion, the Commission determined that SGRE violated section 337 because the use of accused wind turbine generators with a full converter generator and ABB converter using “earlier” versions of software infringe claims 29, 30, 33-35, and 37 of the ’985 patent, and that all other elements of section 337 were satisfied.  The Commission declined to review the ID’s findings in these respects.  The Commission determined that SGRE did not violate section 337 with respect to claims 1, 6, and 12 of the ’985 patent on the grounds that (1) GE failed to show that any accused product satisfies the limitation “a second mode of operation comprising the low voltage event” found in claims 1, 6, and 12; and (2) GE failed to show that any accused doubly-fed induction generator (“DFIG”) product satisfies the limitation “turbine controller causes the blade pitch control system to vary the pitch of the one or more blades” found in claims 1, 6, and 12.  Further, the Commission determined that the record does not support the ID’s finding that claims 29, 30, 33-35, and 37 of the ’985 patent are infringed by the accused full-converter wind turbine generators with “later” software, or DFIG products.

Regarding remedy, the Commission determined to issue a limited exclusion order and cease-and-desist order against SGRE.  The Commission also found that its consideration of the public interest factors warranted creating an exemption for the purpose of service and repair of existing wind turbines generators covered by the remedial orders.

UPDATE:  On March 25, 2022, the Commission issued a corrected version of its opinion.