Although the U.S. courts thought differently, the Regional Court of Düsseldorf in Germany has upheld Hanwha Q CELLS’ patent infringement complaint filed on March 4, 2019, finding that JinkoSolar, REC, and LONGi Solar unlawfully incorporated Q CELLS’ patented technology into specific solar products of the respective brands. The lawsuit charged that the three companies have infringed the German part of European Patent EP 2 220 689 (‘689 patent), which protects a unique passivation technology also used in Q.ANTUM – a technology for increasing the efficiency of solar cells.
On June 16, the German Court concluded that JinkoSolar, REC and LONGi Solar have distributed certain solar modules in Germany that contain solar cells which use technology covered by the ‘689 patent, without a prior license agreement with Q CELLS.
As a result of the Court’s decision, Q CELLS is granted a right to enforce the injunction provisionally, including restrictions on import and sales of the infringing products of the respective brands. The decision of the court is provisionally enforceable upon Q CELLS provision of a security. The court ruled that the accused companies are legally obliged to take measures to recall the patent-infringing products distributed since January 30, 2019 from the distribution channels. In addition, the court granted a claim for destruction of patent-infringing products in possession of JinkoSolar, REC and LONGi Solar.
Q CELLS began researching PERC-based cell technologies back in 2008 which led to the development of its Q.ANTUM technology that uses this patent-protected passivation technology. Q CELLS began mass-manufacturing Q.ANTUM solar cells as early as 2012, and has since produced more than 3 billion such solar cells globally.
Dr. Daniel Jeong, CTO of Q CELLS, said: “We are pleased that the Regional Court of Düsseldorf has confirmed what we knew to be true all along. As we eagerly stressed when we filed the lawsuit in 2019, intellectual property laws exist to incentivize innovation and protect those innovations from being unfairly used. The protection of intellectual property rights is of foremost importance for our fast-evolving solar industry to ensure continued development of breakthrough technological innovations.”
Jeong added, “Also, we cannot ignore the possibility that the accused companies might have applied the ‘689 patent to their other products. Q CELLS will continue to take all necessary actions including direct litigations as well as industry dialogues, if and when our rights are violated by another party in other regions. With regards to the recent U.S. ITC decision on patent infringement complaint, Q CELLS will bring the case to the court and make an appeal.”
The U.S. International Trade Commission did not find that JinkoSolar, REC or LONGi Solar infringed on Q CELLS’ patent. A similar patent infringement complain has been filed in Australian courts by Q CELLS against Jinko and LONGi. That case has not yet had a ruling.
While opposition proceedings challenging the patent’s validity are still pending before the European Patent Office (EPO), the Düsseldorf Court found EP’689 infringed by the solar products of LONGi Solar, JinkoSolar and REC. The decisions can be appealed to the Higher Regional Court of Düsseldorf.
As a next step following the decision of the Regional Court in Düsseldorf, Q CELLS will actively consider all possible pathways forward in order to devise meaningful solutions in the best interests of the company as well as a healthy innovation landscape in the solar industry.
June 19 update:
JinkoSolar has released a statement on the decision. The solar panel company said the alleged patent relates to third-party solar cells in older Jinko-branded modules that are no longer in production. As such, the court decision has no impact on current and future Jinko customers.
“We respectfully disagree with the recent decision of the Düsseldorf court, which did not take any independent expert evidence and based its decision on one-sided allegations,” said Kangping Chen, CEO of JinkoSolar. “We continue to believe that Hanwha’s claims are without merit and were brought solely to slow down our business momentum. We will pursue all legal avenues to vigorously defend against Hanwha’s claims, including contesting the validity of the patent associated with the cell technology in question. Providing JinkoSolar’s customers with industry-leading solar modules remains our top priority and we will continue to work tirelessly to achieve that end.”