Double click to enlarge (800×600). The new Aqua Illumination LED light in white.

Taking note of the current trends, Aqua Illumination has kept the exposed heat sink for its industrial feel while opting for a polished white body. The heatsink has also been finished with a unique anodizing process to protect the metal while giving a brushed aluminum look. Overall it is a much more refined and elegant look than the older and heavier black. It is also much more living room friendly.

The new body allows easier maintenance. Should an LED turn sour, removing a few screws on the face of the white body and you have complete access to the LED assembly and AI’s triple 45 degree optics. Be forewarned it’s unlikely that you’ll need to get in there. AI is returning with the extremely robust Cree XR-E LED. These come in white and royal blue flavors, each of which can be dimmed from their peaks of roughly 1000ma and 750ma for each respective color (w or b). Like the old unit, there are a total of 8×3 XR-E groupings (2 white : 1 blue) for a total of 24 LEDs and roughly 75w of electric consumption per AI module.

Chris and I spoke in depth on the XR-E choice and we both agree that at the moment they are the best LED for reef lighting applications. Chris is one of those reef fanatics that a quick phone call turns into an hour long dialogue about everything reefs and lighting. His enthusiasm for aquarium lighting is infectious and we at GBD have high hopes for the redesigned modular Aqua Illumination LED light… and some developing projects to come.

A look at the older LED unit with the light rack.

For the rimless crowd, the modular bracket / feet system is not ideal. However, it is extremely practical and easy to use which is why they are offering it again on the new model. For those looking for a cleaner look, each module can be hung. We’ve also heard hints of another mounting option in the future for the design conscious reefer. For the sound conscious reefer, AI’s redesigned body requires only one fan (instead of two) for even quieter operation.

Overall the design still performs the same in terms of light intensity, but the revisions and improvements are welcomed refinements:

• attractive white / anodized aluminum body
• single fan for quiet operation
• 1 power supply, rather than daisy chain multiples

It is with mixed emotions that we report the product is now licensed under U.S. Patent Nos. 7,200,018 B2 and 7,473,008 B2. Yes, these are Orbitec’s. Unfortunately this situation has been significantly skewed by certain “opinions”. While I do not agree with the patent in its current state, there is much more than meets the eye–another article, another time.

We’re all hoping to see the fresh AI LED System at MACNA, but Clough informed us there looks to be a delay on one part needed. Should it make an appearance we will not be disappointed. If not, October will be here soon.

Till then, take a look at Aqua Illuminations revamped website which includes an updated blog.

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Since news broke about the pending Orbital Technologies “Orbitec” v PFO case there has been a considerable amount of misinformation being spread across the internet. Despite what you may have read, LEDs are still an option for aquariums and the patent does not encompass the basic application of LEDs to marine aquariums.

Last month we received an e-mail direct from Marty Gustafson, one of the patent holders for Orbitec. Not much can be said as the case is still pending, but Orbitec does openly reveal that they are working with an aquarium lighting manufacturer to bring a product to market. From the e-mail:

Fortunately our product line will be released later this year under a partnership with another aquarium lighting company, and we look forward to continuing to integrate and work together in the industry. We hope that our many years of LED lighting experience for plant growth systems, aerospace applications, underwater bioreactors and controlled environments combined with our partner’s aquarium expertise will result in high quality, reliable products.

We know not much can be said by either party, but the GBD team has been doing some research on the pending litigation battle between the two companies.  PFO has acquired the services of Wisconsin based Foley & Lardner, a large and respectable law firm, and it appears they have not given up fighting this case. This prompted some additional research on our end and resulted in some very interesting findings.

As of February 9th, 2009 PFO filled a response summary judgement motion. (Note: This is 6 days after the news that PFO fired all staff and was going under) This was in response to Orbitec’s summary judgement and presents some interesting information. For example PFO is claiming that “there is strong evidence inferring intent to deceive” and that prior patents render Orbitec’s patent claims as inherent. There are always two sides to a story and it will be interesting to see how this turns out. The fillings are on hold until a judge rules on them, but we were able to get other documents like Sanjay Joshi’s deposition. In this deposition from January 23rd, Sanjay is tediously barraged with questions on his knowledge of LEDs, PFO and his thoughts on the patent. [Original deposition linked below].

We cannot see the expert witness declarations, but we can see the titles  and it appears PFO have retained Sanjay, Dana Riddle, Tullio Dell Aquila and few others as expert witnesses. Most ought to know Sanjay and Dana for their influential work with aquarium lighting. It appears many do not know Tullio, who is a lighting industry expert. In particular he specializes in LED lighting technologies and has one of the strongest potential examples of invalidating prior art. See this 2003 article by Mike Kirda that shows an early LED unit by Tullio that was displayed at IMAC.

Orbitec has responded to this prior art claim by stating:

In that chart, PFO appears to allege that all the elements of each claim are found in a reference called “the Kirda Article,” which is entitled, ”Lighting In Reef Tanks: Some Actual Data.”  Id.  This article depicts an LED lighting system apparently built by Tullio Dell Aquila, one of PFO’s experts, and displayed in his hotel room in May of 2003.  Facts at ¶ 181…A number of claim elements are obviously not disclosed by these pictures. For example, there is no evidence of the dimming controller required by independent claims 1 & 5. Facts at ¶ 184. Indeed, Mr. Dell Aquila explicitly states in his expert report that the LEDs in the device “were not attached to a dimming controller.” Facts at ¶ 185. On this basis alone, the Kirda Article cannot anticipate. It is also impossible to tell whether the device’s housing contains the required cooling system. Facts at ¶ 186. Accordingly, the Kirda Article does not anticipate any claim of the ‘018 patent.

Does PFO have adequate evidence of prior art? We will have to see. With some additional research we were able to find dimmable LEDs for marine aquariums prior to the patent. They are your typical “moonlight”, but nonetheless they are dimmable and would suffice to grow some marine life. Below is a clipping from PFOs summary judgement listing examples of aquarium related prior art that are cited throughout the document.

Interestingly, PFO’s defense seems to be relying less on prior art from LEDs applied to marine aquariums and more on two patents (’602, ’432)  for Plant growth. The logic being that these prior Plant patents render the Orbitec patent obvious. 

While these two prior art LED lighting systems for plant growth do not explicitly disclose use with a marine habitat, such a use can be found under the principles of inherency. An invention is not novel if a prior art “reference … discloses every limitation of the claimed invention either explicitly or inherently.” Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 970 (Fed. Cir. 2001). “A reference includes an inherent characteristic if that characteristic is the ‘natural result’ flowing from the reference’s explicitly explicated limitations.” Id. (citing Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991)). In this case, the prior art LED lighting systems disclosed in Morrow ‘609 and the ‘432 patent inherently are connectable to the top of a marine habitat containing plants or other organisms as easy as they are when used to illuminate plants in other settings. Further, plant LED lighting systems can easily be used to illuminate aquariums, especially given the fact that historically lighting technology has typically migrated from commercial to horticulture then to aquarium lighting. (DPFF ¶ 154.)

Those are just some highlights from the documents, but you can find the originals here. All files are large PDFs, it may take a moment to download.

• Orbital Technologies “Orbitec” Summary Judgement 
• PFO Reply, Opposing Summary Judgement
• Sanjay Joshi Condensed Deposition 

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Although this is the last Patents 101 article, more information regarding Orbitec and LEDs is to come. Thank you to Mike for this 3 part series. If you missed the previous articles you can find them here: Part 1 & Part 2.

Q: What effect do patents have on DIYers?  Do I infringe if I make a patented product at home?

A. This is another area I’ve seen much misinformation.  Many comments have been made to the effect that, assuming a Solaris unit infringes the Orbitec patent, you could make a DIY Solaris at home or buy/sell a DIY kit of parts. These assumptions, however, are incorrect.

As for building a patented product yourself, the patent laws prohibit making, using, and selling a patented invention.  So if you build a patented LED light in your basement, you infringe because you made the patented invention.  In fact, you technically infringe for even using an infringing product that you purchased, regardless of how reputable the company manufacturing or selling the product might be. 

Q: So I could be sued for a DIY project or use of a Solaris?

A. Technically yes, but in the real world, it is unlikely. As the damages would likely be very small compared to the cost of bringing the suit, it is not a financially viable lawsuit.  (However, please don’t think of this as a license to go building patented products – in the often analogous realm of copyright law, think about what happened to unsuspecting Napster users who downloaded music and were sued by the RIAA for infringement.  There is always an exception…)

Q: What about a company selling a kit to make a product that infringes?

A. Even though a company doesn’t actually make, use, or sell an invention, they could still be liable for indirect infringement if they sell a kit to make an infringing product.  Specifically, if a company is shown to have knowingly contributed to the infringement of another, or induced infringement by another, they can be liable for indirect infringement.

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EcoTech Marine’s Vortech line of pumps may just be the first of many exciting releases from the PA based company. Although they are forced to non-disclosure agreements, new products are on their way this year. According to reports, one of these releases will a modified Vortech pump that will be marketed to the Spa industry early in ’09 to help increase revenues.

More important to us aquarists, in May of this year EcoTech will be releasing an unidentified new aquarium product that will utilize their patented magnet technology. Now how could this patented technology be applied to other pieces of marine equipment?

Originally the Vortech magnet idea was developed by founders Tim Marks and Patrick Clasen for a Kalkwasser reactor. Given the advance nature of the pump today, this seems a bit overkill. Other potential applications may include return pumps and protein skimmers. Given the open output of the Vortech, the technology could be applied well to Klaes style skimmer.  A Vortech pump fitted with a titanium mesh impeller at the bottom of a cone skimmer would provide some serious advantages. I have no idea if this is what EcoTech has in store, but I’d venture a guess that they have thought of it.

Because we know EcoTech is a business savy company, we also know the two new ’09 products are not all they have planned for the future. It turns out that this year  EcoTech will also be applying for a $200,000 grant from the Pennsylvania NanoMaterials Commercialization Center. The amount of the grant is not relevant, the center that they are applying through is.

Back in 2007 we got information regarding a spin off of EcoTech–EcoTech NanoSystems. Don’t let the name fool you, this subsidiary was not created to develop all-in-one nano reef aquariums. It was made to explore the potential application of nanotechnology to aquariums.

According to reports from their Alma mater, Lehigh University, EcoTech NanoSystems has teamed with an outside researcher to seek applications for an environmentally friendly surface coating that will inhibit the growth of algae and other life forms.

After hearing directly from the patent owner that he was willing to give them a license for the patent, EcoTech began doing preliminary profitability analysis and valuations on the project.  The end goal of this project is to develop a coating that can be used in aquariums, tiling, pools, and other surfaces to inhibit the growth of algae. That was still in 2007.

Since that time we had not heard much about EcoTech NanoSystems, but after doing research and finding out about the Pennsylvania NanoMaterial Commercialization Center Grant it appears NanoSystems is progressing and the valuations were promising.

Besides being the Director of Finance at EcoTech Marine, Patrick Clasen has also publicly stated via LinkedIn that his position is also President of EcoTech NanoSystems. NanoSystems is definitely up to something, but we’ll have to wait to find out what exactly and how much this nano coating will cost.

Co-Founder Tim Marks has said the upcoming product in May will utilize the Vortech patented technology meaning the nano coating is not likely to make it in 2009, but the neat freak inside me hopes it’s sooner rather then later. If the said nano coating would inhibit the growth of algae on the glass of aquariums, I can only imagine the impact it would have on the aquarium world. Microalgae is arguably the greatest enemy and detractor of aquaria.

Given the recent aquarium LED patent fiasco, EcoTech’s success is a prime example of how patents can be good for the industry if done correctly. According to EcoTech, revenues tripled from 2007 to 2008 making them one of the fastest growing and best run businesses in the industry.

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Disclaimer: The following is provided for informational purposes and should not be relied on as legal advice. If you have a patent-related question, you should contact an attorney.

Part 1

Q: What is the purpose of the patent system?

A: Since the patent system has come under much attack recently, I think it is important to provide some background on the principles underlying the system.  It’s not perfect (we’ll get to that later) but there are many very good reasons why the patent system exists. I’ll lay out three of the primary purposes here:

Promoting Innovation: The patent system seeks to reward innovators with a temporary monopoly.  It is an answer to the “free rider” problem – if everyone can just wait until someone else spends the money to develop a product and then copy it, then no one has incentive to develop the product, and it never gets developed in the first place.  A patent, however, allows a company to spend more on R&D because it knows it can market the product free of competition for a number of years. 

Promoting Disclosure and Sharing of Ideas: The tradeoff for being given a temporary monopoly is that you must publicly disclose your invention in enough detail that “one skilled in the art” could recreate the invention, without undue experimentation.  Without a patent, innovators would be incentivized to hide their ideas (when this is done, they may acquire a trade secret, of which the recipe for Coke is a famous example).  With public disclosure, it makes it easier for others to build upon what has been created in the past, again promoting innovation.

Protecting the “Basement Inventor”:  There are some people with great ideas, but no resources to make their idea happen.  Picture Jack (or Jill) Inventor who walks into Deltec’s offices with the next great skimmer design, but no patent protecting it.  Deltec says it’s a great idea, then turns around and builds it into their next skimmer line, leaving Joe Inventor with nothing but a story to tell about “that was my idea!”  So if patents weren’t available, he’d probably just keep that idea to himself, and its possible the world would never see it.  The patent system, however, allows Joe Inventor legal recourse and provides him negotiating power to sell a license for his improved skimmer to Deltec, and the world is better off for it.

Q: So you’re a patent attorney, this sounds like rhetoric to promote your profession – what about all these patents trolls I keep hearing about that don’t even make the product they’ve got a patent on?

A: I’ll be the first to admit the patent system is not perfect, but when you consider the above principles, I do think its better than any alternative.  First, I’ll say see above about protecting the basement inventor – remember he doesn’t make the product he invented either, and allowing that little guy to make it big with his idea is as American as apple pie.  Its tough to protect him though, without opening the door for patent trolls, who also don’t make anything. 

There is also a massive backlog at the Patent Office, and Examiner’s are human and can miss references that show an idea existed or that claims of a patent should have been narrowed to cover less.  Imagine you are a Patent Examiner and you’ve never seen an aquarium return pump, and you have 5 hours to figure out what a patent application on an aquarium return pump is claiming, and to figure out if its actually new (which theoretically involves figuring out if the design is out there somewhere in the world since aquarium return pumps were invented 40 years ago).  You do your best, but occasionally things do get through the cracks, and it’s the old story of the bad ones that make the news, while you hear nothing about the good ones.  There is no easy answer to this either.  You could hire more Examiners, hire more specialized Examiners, have them spend more time on each application, etc., but remember this drives the cost of a patent up, which favors big corporations and puts a patent out of reach for many people.

Q:  So lets say a patent “slips through the cracks” and now I’m being sued.  It covers my product because it is so broad, but I don’t think the patent ever should have been issued in the first place.  Am I just out of luck?

A: No, there are a number of options to fight a patent that you think shouldn’t have been issued.  One route is at the U.S. Patent & Trademark Office (USPTO), the agency that handles the issuing of patents.  A third party can file what is called a re-examination to challenge the patent.  Without providing too many boring specifics, you generally present the USPTO with evidence showing that at the time of the invention, the invention was not new, or that it was obvious to one skilled in the art.  If the USPTO accepts your petition for re-examination, it is possible that the patent can be invalidated (essentially thrown out), or that the inventor may have to narrow the scope of the patent so it covers less.  It is also possible that a lawsuit may be “stayed” (i.e., paused) during the re-examination.  While more expensive, you can also file counterclaims in the lawsuit that the patent is invalid based on the same evidence.

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