Patent encumbrance of large automotive NiMH batteries

The high-power NiMH battery of a Toyota Prius

The patent encumbrance of large automotive NiMH batteries is the encumbrance of the commercialization of nickel metal hydride (NiMH) battery technology by corporate interests. Nickel metal hydride battery technology is important to the development of battery electric vehicles (BEVs or EVs), plug-in hybrid electric vehicles (PHEVs) and hybrid electric vehicles (HEVs).

Background

The modern nickel-metal hydride (NiMH) electric vehicle battery was invented by Dr. Masahiko Oshitani, of the GS Yuasa Corporation, and Stanford Ovshinsky, the founder of the Ovonics Battery Company. The current trend in the industry is towards the development of lithium-ion (Li-Ion) technology to replace NiMH in electric vehicles. Some manufacturers maintain that NiMH batteries are important to the commercialization of plug-in hybrid electric vehicles (PHEV)s and battery electric vehicles (BEVs) because Li-Ion technology, while functionally superior due to its higher specific energy and specific power, is prohibitively expensive, relatively untested with regards to its long-term reliability, and can be subject to dangerous overheating and fire if cells are controlled incorrectly or damaged.

General Motors and the US Auto Battery Consortium

The Ovonics technology was acquired by General Motors for use in its EV1 electric car, but production was ended shortly after the NiMH batteries began to replace the lead-acid batteries of earlier models

In an interview in the 2006 documentary Who Killed the Electric Car?, Ovshinsky stated that in the early 1990s, the auto industry created the US Auto Battery Consortium (USABC) to stifle the development of electric vehicle technology by preventing the dissemination of knowledge about Ovshinky's battery-related patents to the public through the California Air Resources Board (CARB).

According to Ovshinsky, the auto industry falsely suggested that NiMH technology was not yet ready for widespread use in road cars. Members of the USABC, including General Motors, Ford, and Chrysler, threatened to take legal action against Ovshinsky if he continued to promote NiMH's potential for use in BEVs, and if he continued to lend test batteries to Solectria, a start-up electric vehicle maker that was not part of the USABC. The Big Three car companies argued that his behavior violated their exclusive rights to the battery technology, because they had matched a federal government grant given to Ovonics to develop NiMH technology. Critics argue that the Big Three were more interested in convincing CARB members that electric vehicles were not technologically and commercially viable.

In 1994, General Motors acquired a controlling interest in Ovonics's battery development and manufacture, including patents controlling the manufacture of large NiMH batteries. The original intent of the equity alliance was to develop NiMH batteries for GM's EV1 BEV. Sales of GM-Ovonics batteries were later taken over by GM manager and critic of CARB John Williams, leading Ovshinsky to wonder whether his decision to sell to GM had been naive. The EV1 program was shut down by GM before the new NiMH battery could be commercialized, despite field tests that indicated the Ovonics battery extended the EV1's range to over 150 miles.

Chevron and Cobasys

By 2001, the Ovonics technology was owned by the oil company Chevron.

In 2001, oil company Texaco purchased General Motors' share in GM Ovonics. Texaco was itself acquired by rival Chevron several months later. The same year, Ovonics filed a patent infringement suit against Toyota's battery supplier, Panasonic, that ultimately succeeded in restricting the use of its large format NiMH batteries to certain transportation uses. In 2003, Texaco Ovonics Battery Systems was restructured into Cobasys, a 50/50 joint venture between ChevronTexaco and Ovonics, now known as Energy Conversion Devices (ECD) Ovonics. Chevron's influence over Cobasys extends beyond a strict 50/50 joint venture. Chevron held a 19.99% interest in ECD Ovonics as of a public filing made January 15, 2003. In a later filing on May 17, 2005, Energy Conversion Devices announced that they had exercised an option to purchase back 4,376,633 shares of stock from a Chevron subsidiary, and would cancel and return them to authorized-unissued status. This is the exact number of shares that was listed as owned by ChevronTexaco in the January 15, 2003 filing.

ChevronTexaco also maintained veto power over any sale or licensing of NiMH technology. In addition, ChevronTexaco maintained the right to seize all of Cobasys' intellectual property rights in the event that ECD Ovonics did not fulfill its contractual obligations. On September 10, 2007, ChevronTexaco (now known as simply "Chevron") filed suit claiming that ECD Ovonics had not fulfilled its obligations. ECD Ovonics disputed this claim. The arbitration hearing has been repeatedly suspended while the parties negotiated with General Motors over the sale of Cobasys back to GM. As of March 2008, no agreement had been reached with GM.

Cobasys contracts demonstrated that the company was willing to sell smaller NiMH batteries (less than 10 amp-hours) for use with hybrid electric vehicles (HEV). For instance, in March 2007, GM announced that it would use Cobasys NiMH batteries in the model year 2008 Chevrolet Malibu hybrid. Toyota uses NiMH batteries in all of its HEV models. However, Cobasys' sales policies raised questions about its willingness to sell larger format batteries for use in EVs and PHEVs.

In her 2007 book Plug-in Hybrids: The Cars that Will Recharge America, Sherry Boschert argues that large-format NiMH batteries (i.e., 25 amp-hours or more) are commercially viable but that Cobasys would only accept very large orders (more than 10,000) for these batteries. The effect is that this policy precludes small companies and individuals from buying them. It also precludes larger auto manufacturers from developing test fleets of new PHEV and EV designs. Toyota employees complained about the difficulty in getting smaller orders of large format NiMH batteries to service the existing 825 RAV4 EVs. Since no other companies were willing to make large orders, Cobasys was not manufacturing nor licensing any large format NiMH battery technology for automotive purposes. Boschert quotes Dave Goldstein, president of the Electric Vehicle Association of Washington D.C., as saying this policy is necessary because the cost of setting up a multimillion dollar battery assembly line could not be justified without guaranteed orders of 100,000 batteries (~12,000 EVs) per year for 3 years. Boschert concludes that, "it's possible that Cobasys (Chevron) is squelching all access to large NiMH batteries through its control of patent licenses in order to remove a competitor to gasoline. Or it's possible that Cobasys simply wants the market for itself and is waiting for a major automaker to start producing plug-in hybrids or electric vehicles."

In an interview with The Economist, Ovshinsky subscribed to the former view. "I think we at ECD made a mistake of having a joint venture with an oil company, frankly speaking. And I think it's not a good idea to go into business with somebody whose strategies would put you out of business, rather than building the business." In the same interview, however, when asked, "So it’s your opinion that Cobasys is preventing other people from making it for that reason?", he responded, "Cobasys is not preventing anybody. Cobasys just needs an infusion of cash."

Critics also argue that historical evidence demonstrates the willingness of the oil industry to engage in such anti-competitive behavior. In 1949, the U.S. Supreme Court found Chevron (then known as Standard Oil of California) guilty of conspiring to buy and dismantle the Los Angeles electric street car system, in what became known as the Great American streetcar scandal. In an effort to prevent the passage of California's zero emission mandates in late 1993 and early 1994, oil companies also funded a series of advertisements that questioned the viability of electric vehicles.

Cobasys' problems with other potential customers also raised questions about the company's sales policies. In October 2007, International Acquisitions Services, Inc. and Innovative Transportation Systems AG filed suit against Cobasys and its parents for refusing to fill a large, previously agreed-upon, order for large-format NiMH batteries to be used in the Innovan electric vehicle. In August 2008, Mercedes-Benz sued Cobasys for again refusing to fill a large, previously agreed-upon order for NiMH batteries.

Current status of the Ovonics battery technology

Multiple companies have tried to develop NiMH battery technology without making use of Ovonics' patents. Electro Energy Inc., working with CalCars, converted a Toyota Prius from a hybrid electric vehicle to a PHEV using its own bipolar NiMH batteries. Plug-In Conversions uses Nilar NiMH batteries and the EAA-PHEV open source control system in its Prius PHEV conversions. These organizations maintain that these developments are allowable because their NiMH battery technologies are not covered by Cobasys' patents. However, these batteries did not become commercially available until late 2007. The technical capabilities of current bipolar NiMH technology are also significantly more limited than those of the ECD Ovonics technology. For example, the operating temperature range for ECD Ovonics NiMH batteries, an important consideration for their use in consumer road vehicles, is −30 to +70 °C (−22 to 158 °F), while the operating temperature range for Nilar's bipolar batteries is a more limited −6 to +52 °C (21 to 126 °F).

On July 28, 2009, Automotive News reported that Cobasys would be bought from Chevron and Energy Conversion Devices by battery maker SB LiMotive, a joint venture of Bosch and Samsung. At the time of the 2009 Cobasys sale, control of NiMH battery technology transferred back to ECD Ovonics. In October 2009, ECD Ovonics announced that their next-generation NiMH batteries will provide specific energy and power that are comparable to those of lithium-ion batteries at a cost that is significantly lower than the cost of lithium-ion batteries.

On February 14, 2012 BASF announced that it had acquired Ovonic Battery Company from Energy Conversion Devices Inc.