News Flash! Exxon Patents Selling Energy!

Here's an odd one.

With all of the concern about patents on business methods run amok, and patent trolls patenting the mere application of age old ideas on the Internet, with the intense scrutiny that that USPTO appears to have placed on business methods patents, including the unprecedented step of withdrawing applications from issuance, with all of the recent concern about the Sensitive Application Warning System (SAWS) that is supposed to flag applications that if issued could be controversial and subject the USPTO to undesired calumny and scorn, and which specifically includes business method applications held by highly visible public companies, with all that, how does this happen:

US Patent No. 8,865,100, "Monetizing Remote Gas Using High Energy Materials", issued on October 1, 2014. Oddly, this patent does not yet show up on Google Patents even though it was issued over three months ago.

Abstract: The present application is directed to a method and system for monetizing energy. More specifically, the invention is directed to the economically efficient utilization of remote or stranded natural gas resources. The invention includes importing a high energy density material into an energy market and distributing the high energy density material (HEDM) therein. The HEDM is produced from reduction of a material oxide such as boria into the HEDM, which may be boron. The reduction utilizes remote hydrocarbon resources such as stranded natural gas resources.

1. A method of monetizing energy, comprising:

transporting a high energy density material to an energy market from a stranded natural gas reduction process location, wherein the high energy density material is obtained from reduction of a material oxide to the high energy density material using a stranded natural gas reduction process.

9. The method of claim 1, wherein the material oxide is transported by one of a marine or overland bulk carrier.

12. A method of monetizing energy, comprising:

transporting a stranded natural gas resource to a reduction site; transporting a material oxide to the reduction site;

reducing the material oxide to a high energy density material using the stranded natural gas resource in a stranded natural gas reduction process at the reduction site; and transporting the high energy density material to an energy market.

13. The method of claim 12, further comprising: marketing a high energy density material to an energy market; and distributing the high energy density material within the energy market.

Of course, there is the obligatory flowchart:

1-23-2015 3-06-16 PM

And the specification defines "transporting":

The term “transporting” as used in the present application means carrying materials in large or bulk quantities and may include overland bulk carriers, marine bulk carriers, and pipeline transport. Transporting may refer to import and export of the materials inter-country or intra-country transport.

What is most surprising is that there was never a Section 101 rejection in this application, even though it is Class 705, and even though it screams out:

We claim the concept of "transporting" energy by land, sea and pipeline from where it is produced to the entirely abstract fiction of an "energy market."

What are you going to do about it?

I have to say that these claims really take chutzpah to write, let alone prosecute. Imagine a client comes to you with a new kitchen gadget--and I'll use my favorite, the spork:


You draft claims to the lovely thing of course, perhaps even methods of eating that involve using a first end of an eating utensil to transport a food substance to an oral cavity of a human, and second, opposing distal end of said eating utensil to transport another food substance to said oral cavity. (Bad form generally to do this, because now you have to sue the user). And maybe you have claims for making the spork by pouring molten unobtanium into supercooled carbon fiber molds.

But then the muse embraces you, and you claim this:

A method of monetizing an eating utensil, comprising:

transporting an eating utensil to a product distribution facility from a manufacturing location, wherein the eating utensil is manuactured at the manufacturing location by pouring molten unobtanium into a supercooled carbon fiber mold.

Who would even try that? I teach our patent folk to think expansively about our clients' inventions--how they are made, how they are used, intermediate components, manufacturing steps, particular materials, how they can be integrated into larger systems, and sometimes for business methods how to make money with them. But I have to admit, I would have never thought to claim putting a product on a truck and shipping to the store. Brilliant!

Now there must be an explanation here. If the HEDM itself is inventive, Exxon could have patented that, and perhaps the process of making an HEDM. I'm not a chemist so I don't have any sense of the novelty here. If they had merely followed this conventional approach, then there would be infringement in making the HEDM, and selling the HEDM in an energy market, and even in importing the HEDM, perhaps by a pipeline.

So what is gained here? Perhaps it something to do with the economics of the industry, how money is made in the transporting phase, where transporters charge by unit volume of material transported. If that is the case, then the damages are not just on the sale of the HEDM as a commodity, as would be covered only by infringing sales of HEDM, but on the infringing transport itself. Thus, this approach captures infringement by those who do the transporting but are not involved in the ultimate sale. So now their trucking, shipping, and pipeline business are infringing, even if they have nothing to do the actual sale of the HEDM. Brilliant! The teamsters should get in on this racket.

Indeed, the only patent application that I can think of that is more of an IP grab than Exxon's is one of my personal favorites. It's so direct and to the point, so short and sweet, I can show you the entire thing:

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Maybe Mr. A. J-R. Schizas works for Exxon? If not, then he should.

*The perspectives expressed in the Bilski Blog, as well as in various sources cited therein from time to time, are those of the respective authors and do not necessarily represent the views of Fenwick & West LLP or its clients.