UK Government makes a big splash for offshore wind but wind power innovators must avoid being all at sea when it comes to IP

Boom times for off-shore wind

In April 2022, when the UK Government announced its goal for 50GW of offshore wind by 2030 with bold claims like “we will be the Saudi Arabia of wind power”, many commented that the goal was perhaps overly ambitious.

However, just a year later, a sixth round of auctions resulted in 5.3GW of new offshore wind projects. Moreover, just last week, the UK awarded a record breaking £22 billion in contracts for eight new offshore wind farms as part of Allocation Round 7. With a collective 8.4GW increase in capacity, the UK Government is making proactive steps towards the 2030 goal by investing in and providing market solutions for new wind power.

It is therefore clear that the ambitious 2030 target is more than just hot air. Given this, innovation will prove to be instrumental in allowing the supply chain to deliver the desired capacity. In particular, new technologies allow for the installation of wind turbines in deeper water and maximise operational efficiency during the operational life of an offshore wind farm.

As inventors seek to secure an edge over the competition, a significant increase in patent applications directed to offshore wind and related technologies is to be expected. Over the last 20 years, many patent applications have been filed related to floating foundations, transportation equipment, and the installation of turbines. In the near future we can expect this to remain the case, as floating wind technology remains of high interest to the UK government, which seeks to support wind farms in deeper regions of the North Sea. This, naturally, gives rise to the question of whether patent protection extends to off-shore locations.

Enforceability issues

The territorial scope of UK patent protection is defined by the Patents Act 1977, which, in Section 132 (3), states, “the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.” Territorial waters in this case refer to sea area extending 12 nautical miles from the coast. This partially solves the question for many existing wind farms, as UK offshore windfarms are currently on average around 10.5 miles from the coast. However, newer wind farms under construction tend to be larger and are built on average at around 87 miles from the coast. The question therefore arises: how can a wind farm technology innovator ensure a patent’s protection at sea and outside of UK territory (or indeed any national territory)?

Maximising the value of your IP

Presently, there doesn’t appear to be a way to extend a patent’s reach beyond territorial waters. In Siemens Gamesa v GE Energy (2022), Siemens Gamesa attempted exactly that, arguing that the wind turbine fell within the scope of the Petroleum Act 1988 which dictates coverage can be extended beyond territorial waters for “activities connected with the exploration of, or the exploitation of the natural resources of, the shore or bed of waters to which this section applies or the subsoil beneath it”. However the High Court refuted this argument, and ruled that the patent’s coverage could not be extended beyond territorial waters as a wind turbine does not explore or exploit the natural resources of the shore or bed of waters .

The result of the judgement is clear and with the UK government looking to build further and further from its coast, a UK patent’s protection might not be enough to monopolise new off-shore wind technology.

So what can innovators do? In the coming years, we can expect to see patent applications drafted with an aim to cover activities taking place outside the territorial limit. Consequently, careful consideration will be needed as to how to obtain patent protection which is enforceable within territorial limits. One technique is to pursue patent claims directed only to component parts, which are completely manufactured on-shore as opposed to when they form the larger turbine.

Furthermore, detailed consideration of the supply chain of said parts and the processes by which they are made may inform a wind technology innovator as to where to pursue patent protection in order to achieve optimal commercial success. On the other hand, it may be possible to avoid competitors’ patents by assembling components outside of the territorial coverage of their portfolio. For example, the Faroe Islands are not covered by a Unitary Patent or the Unified Patent Court (on account of not being part of the EU) and require a Danish national patent to extend patent protection to. Therefore, the islands could represent a possible location to assemble potentially infringing turbines if the patents in question have not been validated in Denmark.

Furthermore, to fully optimise IP strategy, the above questions and considerations must be contemplated in the context of the 20-year lifetime of a patent, which is typically shorter than the lifetime of an offshore wind farm. Therefore, protecting innovations essential to the maintenance of turbines, for example, is an option for gaining an advantage over the competition.

Conclusion

Allocation Round 7 has shown that there is a high level of confidence and investment in the British wind sector. As this flows into industry stakeholders, more patent application filings, oppositions and patent enforcement is to be expected. Consequently, wind power innovators  stand to benefit commercially by carefully considering factors relating to enforcement in their IP strategy.

The HGF Energy team has many years of experience dealing with these types of questions and would be pleased to advise wind power stakeholders on how to achieve their commercial objectives with an IP strategy.

This article was written by Trainee Patent Attorney Aaliyah Adesida and Patent Attorney James Hitchen