June 2020 update at bottom.
Global solar panel manufacturer JinkoSolar announced that the Administrative Law Judge (ALJ) in the U.S. International Trade Commission investigation into whether module competitors infringed on Hanwha Q CELLS’s manufacturing patent found that Jinko’s products do not infringe on the patent. ALJ MaryJoan McNamara issued an initial determination granting JinkoSolar’s motion for summary determination of non-infringement. The Commission will now review the ALJ’s ruling and issue its opinion on that ruling within 30 days.
REC released a similar statement on April 14. According to REC CEO Steve O’Neil, “The order is a testament to REC’s confidence that Hanwha Q CELLS’s claims against REC are and have always been without merit.”
Q CELLS filed the complaints with the U.S. courts in March 2019, alleging that the three companies were unlawfully importing and selling solar cells and modules that infringe Q CELLS’s patented passivation technology — a technology that can be applied in many ways but is commonly used in PERC modules. Q CELLS was requesting that the ITC issue a limited exclusion order and cease and desist orders, essentially preventing the other module manufacturers from importing product into the United States.
“Hanwha Q CELLS invests substantial capital in research and development and protects that investment with intellectual property,” Q CELLS said in a press statement last year. “Hanwha Q CELLS will not tolerate infringement of its intellectual property rights and strongly believes that infringement by JinkoSolar, REC and LONGi will be ultimately confirmed under a correct interpretation of the patent.”
The original patent claims asserted by Q CELLS related to U.S. patent 9893215-B2, which was first filed by Q CELLS and SolarWorld in 2008 and granted in 2014. The patent is for a method of “manufacturing a solar cell with a surface-passivating dielectric double layer.” This manufacturing method covers a broad range of potential products, including any using PERC technology.
A number of solar installers submitted statements to the ITC last year expressing concern that if Q CELLS succeeded in banning the import of other solar modules, there would be increased competition and limited supply of solar panels, especially since most modules use PERC technology these days. Even with Q CELLS’ new 1.7-GW solar module factory in Georgia, the company would not have enough inventory to meet existing U.S. utility demand.
In addition to the ALJ ruling, the U.S. Patent and Trademark Appeal Board (PTAB) instituted inter partes review (IPR) proceedings in December 2019 of the patentability of specific claims of the ‘215 patent. The PTAB’s decision states that JinkoSolar and REC have “established a reasonable likelihood of prevailing in showing that claims 12-14 of the ‘215 patent are unpatentable.”
“These independent determinations by two separate bodies confirm what we have said from the start of this litigation: Hanwha’s lawsuit, based on a single patent, was without legal or technical merit, and was brought only to slow down our momentum,” said Kangping Chen, CEO of JinkoSolar. “JinkoSolar strongly supports fair competition in the marketplace, and respects the valid intellectual property of all participants in our field. We look forward to continuing to serve our global customers with innovative, industry-leading solar modules, and extending our marketplace momentum.”
A full written decision on the issue of patentability should be released by December 2020.
Q CELLS also issued similar patent infringement complaints in Germany (against Jinko and REC) and Australia (against Jinko and LONGi). This U.S. decision does not affect the cases in the two other countries.
June 2020 update:
On June 3, 2020, the ITC issued its final determination in JinkoSolar, REC and LONGi’s favor, affirming the Administrative Law Judge’s initial determination in April, which was based on analysis of detailed, expert testimony, that the mentioned products do not infringe Hanwha’s patent.
“We welcome this final decision from the ITC, confirming what we have known all along: our products do not infringe Hanwha’s patent,” said Kangping Chen, CEO of JinkoSolar. “From the start, we have believed that the case brought by Hanwha was legally and technically meritless and a transparent attempt to disrupt innovation and slow our momentum. The ALJ’s decision confirms that Hanwha should never have brought this case in the first place. JinkoSolar is a true innovator, and this outcome validates our technology. Our top priority is to provide our customers around the world with the industry-leading, sustainable, high-quality, high-performance solar modules they have come to expect from us.”
““JinkoSolar strongly supports fair competition in the marketplace, and respects the valid intellectual property of all participants in our field. We look forward to continuing to serve our global customers with innovative, industry-leading solar modules, and extending our marketplace momentum.””
There’s your “counter claim” from JinkoSolar. By the end of the year will JinkoSolar have bifacial solar PV manufacturing online and begin to under cut these ‘other’ solar PV manufacturers in price point and technology once again? China seems to be the ‘pros’ of intellectual property ‘borrowing’ then when called out in trade filings invoke the concept of (valid) intellectual property, the Chinese retool their product lines and move on to the next technology and continue price manipulation and tariff avoidance.