Intellectual property and wind energy

• Author: Mr Tim O'Callaghan
• Law Firm: Piper Alderman
• Published date: 22 August 2023

Private industry and governments continue to invest in wind power generation as one of the leading forms of renewable energy. The wind energy sector, therefore, finds itself at the forefront of the global initiative of moving towards sustainable energy sources. Consequently, the importance of regulating intellectual property (IP) rights within the industry has become increasingly relevant in Australia.

IP in Australia

Australian legislation and common law makes it possible to hold exclusive rights over IP, regulating its use and facilitating technology transfer. IP rights are held in intangible property created from human intellect and/or creativity including rights in designs, patents, trade marks, copyright and trade secrets.

IP in the Wind Energy Sector

IP rights play a vital role in protecting ownership, and promoting the ongoing innovation within the wind energy sector. Commercialising innovation is made possible through trade marks, registered patents, registered designs, and unregistrable IP that subsists in trade secrets and copyright.

In 2019 it was identified that since 1995 the wind industry had suffered more than $5.2 billion in commercial losses associated with avoidable IP risks.¹ IP holds particular importance due to the nature of the large scale construction and maintenance required, in which there is frequent engagement of contractors and the exchange of confidential information. This occurs at various stages, including the design, engineering, procurement, civil works, turbine installation and maintenance cycles. Consequently, the effective management of IP rights is crucial within the windenergy sector.

Patents

What are patents?

Patents protect inventions which are novel and inventive by providing a government-granted right to exclude others from making, using and selling a claimed invention for a period of generally 20 years.² Patents are concerned with how things operate, often without particular regard to how they look. To be patentable, the invention must include an 'inventive step', being a step which has never been publicly done before in the world, and which would not have been obvious to a person who is skilled in the relevant art. Following registration, replication of a similar invention withoutauthorisation may constitute infringement, which can be enforced in court.³ As such, patents are a valuable source of IP which provide a monopoly right of exploitation for 20 years which can then be licenced to others.⁴

An application for a patent must be lodged with the Patent Office before the subject of the application is used or exhibited publicly.

Patents in the wind energy sector:

Patents play a central role in protecting rights in the wind industry, making up approximately 25% of all renewable energy-related patent applications. The exponential expansion within...