Clean Tech Regulation and Government Funding

Today, I arrived at the Clean Technology Law Symposium excited to learn more about the current state of the law in clean tech.

It was an excellent event, and the organizers deserve much credit and thanks. Overall, I found myself continually impressed by how many areas of the law are implicated with clean tech law, policy, and business. Speakers touched on antitrust, international intellectual property, patent pools, compulsory licensing, economics, politics, state regulation, federal regulation, international treaties, financing, science, the current technology of the energy grids in deployment, and new developments in technology.

Arthur J. O’Donnell, executive director of CRS (the Center for Resource Solutions) gave a great keynote full of the history and culture behind the U.S. and California energy grid development and regulation. He pointed out that in most clean tech companies and industry events, there is a real dearth of folks from the existing utilities communities. And, in his opinion, leaving them out of the conversation is a big mistake. The large public utilities and the regulations that govern them are huge forces in the energy market and will continue to be so, regardless of where the clean tech revolution takes us.

Additionally, Matthew Dunne of ARPA-E (a subsidiary of the US Department of Energy) spoke about the financial assistance his organization provides to innovators in clean tech. Unfortunately, there are currently no open solicitations for competitive bids, however, he did inform us that ARPA-E does accept unsolicted proposals.

I left with a very real sense that clean tech is an exciting area for disruptive technology and, a very dynamic area of the law due the number of intersecting legal subspecialties it touches.

You Don’t Have to Talk to Their Lawyer

Occasionally, a client calls me to tell me that the other side’s lawyer reached out directly to them and wants to have a quick direct conversation to discuss the outstanding issues.

In California, Rule 2-100 of the Professional Conduct Rules says that a lawyer may not speak with the opposing party directly (if the opposing party has counsel) without getting the opposing party’s lawyer’s consent.

ABA Rule 4.2 says roughly the same thing.

In litigation or active disputes, this rule is almost always scrupulously observed. But in business deals, where things are less contentious, sometimes people forget.

So, in short, no, if their business folks decide it’s time to bring in their lawyer, you don’t have to take the call without your own lawyer to back you up. The other side’s lawyer can talk to you, but only if you (and your lawyer) consent.

Negotiating Against the White House

One of my clients is in the process of entering into a deal with the White House.

Typically, my start-up clients find it very frustrating to try to do business with government agencies. Start-ups and government agencies operate on two very different time scales.

So, it’s a pleasant surprise to learn that the White House is actually much more nimble and flexible than most federal agencies. They understand more about the world my clients live in than any other governmental agency I’ve ever worked with.

And, I must say, the folks who represent the White House are some of the nicest and most reasonable opposing counsel with whom I’ve ever dealt.

The Techiest Use of a Garden

Recently, we were invited to dinner at our friends’ home. They pulled out what appeared to be a chemistry set to make dessert:


Clearly, this was going to be a *very* technical dessert.

Apparently, our hosts were fans of molecular gastronomy. You know, like El Bulli. And the use of such fun ingredients as alginate, and sodium calcinate, plus a scale, mental math, a Vitamix for purées and high velocity hand-whisking:


First, we made the fake roe — aka, apricot peach purée boules:



Then, we made the faux nori (aka rolled chocolate over crushed tin foil):


We filled the rolls with rice pudding, aka sushi rice, and we sliced some “ginger” aka, Georgia peaches:


With the addition of pistachio-nut butter “wasabi” and raspberry purée “soy sauce” our desserts were complete:


Truly, this is one of the techiest things you can do with things that come from a garden:


The Best Part of Summer

Fresh Tomatoes Galore.

After an uncommonly cool summer, we’re finally getting some heat (it’s over 100F outside right now), and the plants are finally starting to produce like mad.


In clockwise order in all of their gorgeous glory above, there’s green zebra, thessoloniki, white oxheart, ananas noir, and sweet horizon.

But wait, there’s more…


…orange russian 117, thessoloniki, top sirloin, green zebra, ananas noir, and green giant.

In fact, now that they have the sun they’ve been waiting for, the plants will wait for no one.  Over the weekend, several of the wooden stakes I’d been using to support the tomato plants broke under the weight of the fruit that seems to grow while you watch it.  Yesterday, in an effort to limit my chores, after picking all of the cracked tomatoes for gazpacho, I picked only cucumbers and white oxhearts:


With the addition of time, heat, spices and acid these became a lovely golden rosemary tomato sauce and pickles.


And now, I just have to come up with a plan for the remaining hundred or so pounds of ripe tomatoes that need attention.

It’s a good problem to have!

Oracle is *not* going to play nice

I spend quite a bit of time talking through *theoretical* risks associated with using third party software in products, particularly with respect to software that’s been developed in connection with some type of promise of openness.

I try to explain to my clients that just because things have gone smoothly thus far with respect to a particular piece of code does not mean that it will continue to go smoothly.

Oracle has just made this explanation *much* easier for me by suing Google for its use of Java in Android.

The complaint is pretty straightforward (I guess he likes it here, because after spending so much time here with respect to the Prop 8 litigation, David Boies is named as pro hac vice on behalf of Oracle).

The complaint alleges infringement by Google in its use of Java technology in the Android Platform. 7 patents held by Oracle America (the new name of the former “Sun” subsidiary) are asserted. It also alleges copyright infringement.

In many ways, this move is shocking. The entire Java mobile development community is going to be reeling. But, in other ways, I think there will be some closure. Many of my clients have been waiting to see how Oracle would treat Java. And now we know…

In particular, I’m curious how the release of Java (including the Hotspot JVM upon which the Google JVM may very well be based) under the GPL v 2.0 by Sun prior to the Sun-Oracle acquisition will play into this. Does the GPL v 2.0 license contain an implicit patent license and/or create an argument for patent exhaustion?

**UPDATE: I have been informed that the Google JVM Dalvik is a completely new implementation, written from scratch by Google, which, assuming it’s true means that any arguments based on the GPL release of the Hotspot JVM are going to need to be much more complicated (e.g. it may play into the damages calculation, or perhaps they will still try to make the patent exhaustion argument).

Stay tuned.

This should be VERY interesting.

Summer Harvests and Storage

Finally, we’re getting into the time of year when the tomato plants are so productive that we can’t eat everything they give us. The rest of the garden is no slouch either.

Tonight’s gorgeous harvest was limited to slicing tomatoes and paste tomatoes (no cherry tomatoes, no squash, no cucumbers), and even so, I’ve got my work cut out for me over the next couple of days.


Last weekend, the harvest was reasonably bountiful:


So, I spent much of the weekend doing the very meditative acts of canning, pickling, and slow roasting.


I yielded 5 pints of Tomato Sauce from chopped up tomatoes:


Plus, a tupperware full of slow-roasted tomatoes, 2 quarts of pickled green tomatoes (so delicious!), a quart of pickled squash, and two colorful quarts of tomatoes in their own juice.


At the end of the canning, the kitchen was a disaster. Imagine an entire kitchen covered with splashes of juice and seeds. Even my shoes were caught in the crossfire.


I’ve learned, though. This weekend, I’ve recruited help.

Summer Harvests

Summer’s first harvest is always some type of squash. This year, we didn’t grow the Zucchini Romanesco, which is sad, because it’s such an amazing producer (see last year’s huge fruit that kept growing and growing in our weeks of neglect):


But, we did grow some yellow summer squash that are producing like mad:


And, our first tomato harvest was a welcome addition to the kitchen:


Especially the crazy megabloom sweet horizon (it must have been 2 pounds, at least):


The next week’s harvest was almost double:


And, most importantly, we finally had enough ingredients to make the first garden Gazpacho of the summer:



Open Source Hardware

One of the main differences between GPL v 2.0 and GPL v 3.0 is the modifications made to address some folks’ concerns that to truly embrace the idea of “Free” or “Open” software, the license must also prohibit restrictions at the hardware level that would prohibit folks from modifying the software.

The natural extension of this concept is the idea that there should be a way to contractually ensure that hardware should also be “Free” or “Open” to modification by its users.

In the software world, we have the Open Source Definition or “OSD,” as a set of community-defined principles to guide the use and development of the term “Open Source Software.”

Now, in the hardware world, a consortium of folks have proposed a draft Open Source Hardware Definition that hopes to establish the same thing for the term “Open Source Hardware.”

Today’s version of the draft indicates that they are drawing from the OSD, as well prior drafts of their proposal and the TAPR Open Hardware License.

I wish them the best in their efforts to converge on an agreed set of principles and look forward to working with the term FOSS/H in the future.

Independence Day Harvest

After closing some end-of-fiscal-quarter transactions for clients, I was very excited to get some quality time in the garden.

First, I harvested all of the leeks and onions that were ready:


Then, I moved in on the row of shallots:


And finally, I took out the garlic,


which I set into a *very* messy braid a few days later (this one is about twice as neat as mine).

I tied up, pruned, and ogled my tomatoes (that just won’t seem to ripen due to the coolest summer I can recall since we moved here…):


And I checked in on the development of the 5-or-6-bloom megabloom sweet horizon tomato, which did not disappoint:


At the end of the holiday weekend, the garden looked much more civilized than it had in days prior:


And, since I accidentally knocked down some green tomatoes in the course of my work, I put them to use in that great southern tradition of fried green tomatoes (but California fusion-style, cooked in a wok, and encrusted with panko):