MasterCraft and Malibu Boats - Wakesurfing patent dispute


MasterCraft and Malibu Boats may have finally settled their long-running feud over wake-surfing patents, but there is still a lot of interesting information to be had in looking into the patent cases related to the action.

The first aspect to note in the feud is that Malibu Boats did not have just a single patent at issue, but rather Malibu Boats was working on a portfolio. As sophisticated IP players know, the real goods are a well developed patent portfolio as it significantly increases one’s leverage against a competitor.

Today we review one aspect of Malibu’s strategy in the case to drive settlement - the idea of a pending application. One might think a pending application is useless as it cannot be asserted in litigation (since the patent has not yet issued). But of course the value in a pending application is not whether it can be asserted immediately, but rather that it has the ability to change and can be asserted at some unknown point in the future. One of Malibu’s pending applications (14/075,978) finally reached a decision after the case settled, and likely provided leverage to Malibu as MasterCraft was faced with the idea that even if they won the current lawsuit, they would still face the possibility of another patent lawsuit down the road. And since up to 6 years of past damages can be had, that risk would have been a significant motivator to settle.

Turning now to the pending application, the appeal was finally heard in November of 2018. Here is a link to the oral hearing. Patent practitioners will probably enjoy reading through the transcript as it gives insight as to how various issues play out before the appeal judges at the USPTO.

In the end, Malibu was successful with its appeal and so I suspect MasterCraft was smart to settle when they did.

Volvo's Emission Problem

Volvo Trucks has just admitted to serious engine emission control problems in a new Press Release. The problem is not clearly defined, but rather the press release vaguely refers to it as follows:

The Volvo Group has detected that an emissions control component used in certain markets is degrading more quickly than expected, which could cause the engines to exceed emissions limits for nitrogen oxides (NOx). All products equipped with the component meet emissions limits at delivery; the degradation is due to a materials issue that occurs over time. A full analysis of the issue is not completed and it is not possible to assess the financial impact at this stage; however, the cost could be material.
— Volvo Trucks Press Release

One possible source that fits with this wording is degradation of an SCR catalyst using reductant injection. Another, previous, Volvo Press Release touted the advantages of such as system:

The solution was to improve the selective catalytic reduction (SCR) technology that Volvo Penta had already implemented in its Tier 4i engine generation. With SCR technology, AdBlue™ is injected into the exhaust line and reacts with NOx in the catalytic converter to turn the harmful compound into nitrogen and water. Another crucial part of Volvo Penta’s Tier 4f solution is light exhaust gas recirculation (light EGR). Because NOx is created at very high temperatures, the EGR further contributes to reducing NOx by lowering the peak combustion temperature.

How it’s different
Many of Volvo Penta’s competitors have attacked the problem from another angle, configuring their base engines’ combustion rate to produce low levels of NOx but emit high levels of PM. Their solution is to add a diesel particulate filter (DPF), which captures the soot and periodically incinerates it down to harmless ash in a process called regeneration. Though effective, this approach has its own drawbacks, including higher fuel consumption. Furthermore, a DPF requires costly maintenance and must be replaced regularly. Overall, a DPF system requires many extra parts — from air pumps and compressors to ignition coils — all of which can fail or need replacing.
While most engine manufacturers installed a DPF to meet Tier 4i and SCR to meet Tier 4f regulations, Volvo Penta uses just SCR in its Tier 4F engines — a simpler, more straightforward solution for customers, with fewer parts and less maintenance than a DPF.
“Because we believed that reducing NOx and PM emissions to Tier 4f levels could be achieved with just SCR, we put all our effort into improving that technology — and making sure we didn’t need to use a DPF, which can end up being more hassle for customers,” says David Hanngren, manager of industrial product planning at Volvo Penta. “It would have been far easier for us to use a DPF, which was already an existing technology. And ultimately our competitors’ engines with DPFs emit the same low levels of PM and NOx as ours do. But because they’re configured to perform at optimum levels, burn less fuel and produce very little smoke, our Tier 4f engines have ended up being a much better solution.”
Though Tier 4 Final is major step forward, the process of lowering emissions in off-road engines isn’t over yet — there are more stringent regulations in the pipeline for years to come. Volvo Penta is already working with innovative technologies to meet future regulations — while continuing to keep customer needs at the forefront of every new advancement it makes in emissions reduction.
— Volve Trucks Press Release

So we looked to see if Volvo has any patents describing such as system and found US 9,097,159, related to a method for detecting urea deposits in an exhaust line of an automotive vehicle, a method for eliminating urea deposits and an automotive vehicle adapted to such methods. The abstract explains the method is for detecting urea deposits in an exhaust line of an automotive vehicle and includes determination if an exhaust gas's temperature is reached, if the result of determination is positive, stoppage of urea injection, and determination of the quantity of NOx in the exhaust gases on the outlet of the selective catalytic reduction system. A comparison is performed between the quantity of NOx determined on the outlet of the selective catalytic reduction system and a theoretical quantity or a measured quantity of NOx produced by the internal combustion engine. If the comparison shows that the quantities are different, it is considered that urea deposits are present in the exhaust line.

Volvo may have discovered their in-use problem via a diagnostic approach just like the one above. The question now is - what can they do to solve the issue. No doubt, whatever the solution, it may generate important IP that other competitors may not even realize they need.

Nikola v. Tesla

Was Nikola Teslas’s middle initial “V”? That is not what this post is about. Instead, Nikola Corp. sues Tesla for patent infringement. Nikola alleges that Tesla stole its design and uses a family of design patent filings as a strategic weapon to protect its intellectual property in the heavy-duty electric truck space.

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Electric Heavy Duty Vehicles

In the current trend toward zero-emission, hydrocarbon-free forms of transportation, focus has primarily been on light passenger vehicles given the longer-haul nature of most heavy duty vehicle duty cycles as well as the high amounts of torque required for such heavy duty vehicles.  However, recent advancements in technology as well as higher customer demand for electrification is pushing some heavy duty vehicle manufacturers to explore hybrid and all-electric powertrain options. 

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Autonomous Vehicles: Patenting Outside-the-box

Autonomous vehicle technology has the potential to profoundly alter transportation as we know it.  Aside from a fundamental sea change in the public’s perception of transportation in general, autonomous vehicle technology has the potential to alter the makeup of roadways by enabling an easing of traffic congestion due to vehicles being able to travel more efficiently and closer together, to promote safer car travel, and to potentially reduce carbon emissions if combined, for example, with electric technology.

In an industry with so much potential, there are of course innumerable opportunities for development of intellectual property portfolios related to autonomous vehicles.  The focus of today’s post is to emphasize that in such an industry with so much potential, it is important to think outside the box in search of new ideas and strategies.  As an example, consider a recent patent (US 9340178 B1) granted to Google, which aims to reduce “secondary impact” in a situation where a pedestrian were to be struck by an autonomous vehicle.  Secondary impact refers to the impact of a pedestrian hitting either a roof of the car, a street surface, etc., subsequent to the vehicle striking the pedestrian (initial impact).  Secondary impact often is what results in serious injuries, as compared to initial impact.

The Google patent aims to reduce secondary impact via an eggshell-like coating over an adhesive layer, such that insects and other small animals and debris are not constantly accumulating on the surface, but where a pedestrian may become stuck to the adhesive layer in the event of a collision.  By securing the pedestrian to the vehicle, the idea is that opportunity for serious injury may be reduced, due to the avoidance of secondary impact.  For a visual representation, refer to the figure below taken from the patent.



            While such an approach is certainly different (and may or may not ever be implemented), it serves the purpose of illustrating the importance of taking a broad approach to intellectual property pursuits in this exciting new era of autonomous vehicles.  Such an approach should not only be viewed as appropriate for the autonomous vehicle space.  Whatever industry you are involved in, are you thinking outside the box to develop your intellectual property portfolio?



In a ruling issued April 4, 2017, the Federal Circuit has upheld a PTAB decision to invalidate claims 1-5, 10-19, and 21 of patent 5,602,524 to Wasica Finance GmbH and Bleuarc Finance AG (the ‘524 patent).  The ‘524 patent is related to a tire pressure monitoring system where pressure data received from respective pressure measuring devices are sent to corresponding receivers with corresponding, unique identification signals that specify the original transmitter.  The Federal Circuit found that the claims were anticipated by Italian Patent No. 1,219,753 (“Oselin”) and/or obvious over Oselin and various secondary references.  Oselin discloses vehicular systems for monitoring tire pressure.  The crux of the asserted differences between the claims of the ‘524 patent and Oselin lied in the construction of the claim terms “pressure measuring device,” “electrical pressure signal,” and “pressure transmitting signal.”  Therein, Wasica asserted Oselin failed to disclose such elements because Oselin disclosed a switch-type pressure sensor that output a binary normal/abnormal pressure signal, while the pressure signals claimed in the ‘524 patent “as properly construed” require a numerical representation of the tire’s pressure.  Both the Board and the Court disagreed with this construction of the pressure signals, ruling that the terms as broadly understood do not require a numerical representation, nor does the ‘524 specification require the terms to be limited to a numerical representation. 

Thus, one take-home lesson from the ruling is that while broad claims may seem to be the most-desirable option for wide coverage of an invention, broad claims may be hard to defend if the claim terms are not clearly defined in the claims themselves.  Relying on the Board or Court to “properly construe” generally broad claim terms may be risky, should the claims come under re-examination.