Key Takeaway(s): First Solar indicated that it will withdraw its Section 337 complaint relating to TOPCon patents in light of a federal action restricting imports of polysilicon and its derivatives, but will continue to pursue existing patent litigation in federal court. The decision highlights how patents can be strategic assets even if they are not directed to the company’s core technology, and how federal policy can influence IP strategy.
First Solar, the largest solar technology and manufacturing company in the United States, announced that it intends to withdraw its Section 337 complaint and terminate the investigation currently pending before the US International Trade Commission (ITC). The company announced that it will continue pursuing its existing TOPCon patent lawsuits in federal courts, including against Canadian Solar, Jinko Solar, and Trina Solar. First Solar’s general counsel explained that the decision is in response to the federal government’s recent national security action on imports of polysilicon and its derivatives: “The Trump Administration’s Section 232 action helps level the playing field at the border, and we are more determined than ever to enforce our IP rights and defend the rule of law here at home.”
The patents at issue relate to n-type tunnel oxide passivated contact (TOPCon) cells, which are an advanced type of silicon solar cell. First Solar does not manufacture TOPCon solar cells, and instead specializes in cadmium telluride (CdTe) solar cells. First Solar acquired the TOPCon patent portfolio in 2013.
Shortly after, BYD, a Chinese company that also manufactures solar products, filed a lawsuit seeking a declaratory judgment of non-infringement, invalidity, and unenforceability of one of First Solar’s TOPCon patents.
The ongoing TOPCon patent battle illustrates how key patents can be strategic assets, even if they are not directed to the company’s core technology. Additionally, the recent developments highlight how government policy can influence enforcement strategy. Energy executives should assess not only whether their patent portfolios protect existing products, but also whether they can create strategic value through licensing or enforcement. Additionally, energy executives should consider how federal trade policies may factor into intellectual property strategy.
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