Recent litigation over tunnel oxide passivated contact (TOPCon) solar cell technology illustrates how patent enforcement can shape manufacturing strategy, limit technology adoption, and create ripples downstream. Solar cell technology provides a useful lens for understanding how intellectual property (IP) risk works in the U.S. solar industry, as Isaku Begert, associate at Marshall, Gerstein & Borun LLP, explains.
Intellectual property risks increasingly affect everyone, from manufacturers investing heavily in process innovation to developers and asset owners who create value by financing, installing and operating projects.
A growing controversy facing U.S. solar manufacturers centers on patents covering manufacturing methods for nuclear tunnel oxide passivated contacts (TOPCon), addressing fundamental process steps rather than incremental design features.
Starting in 2024, thin-film PV manufacturer First Solar has begun a patent enforcement campaign, including U.S. infringement lawsuits and an International Trade Commission action to restrict imports of allegedly infringing TOPCon cells and modules.
The impact was immediate. Manufacturers are re-examining TOPCon roadmaps, licensing strategies and production timelines, as uncertainty over module availability impacts downstream purchasing decisions. The dispute illustrates how shared IP risk arises from the same patent rights, but has a different impact on manufacturers and non-manufacturers.
Patent risk
For manufacturers, TOPCon shows how IP risk peaks during technological transitions and scale-up. Moving from legacy architecture to next-generation cells requires new materials, interfaces, designs and processes, many of which may already be patented.
Once enforcement begins, manufacturers have limited options. Litigating infringement claims or attempting to obtain a license will take time and incur additional costs, with no guarantee of a positive outcome. Designing around existing patents will also slow market entry and may require expensive retooling and retraining.
The other option is to delay adoption and continue to rely on older cell architectures, but this could leave the manufacturer at a technological disadvantage and behind the efficiency benchmarks that drive demand. IP considerations are now embedded in production strategy and capital allocation. In the TOPCon context, patents actively influence which technologies are viable at scale.
Downstream exposure
While manufacturers experience IP risks at the process level, those who purchase, import, install and operate solar energy systems and their components experience IP risks at various stages, mainly at import and implementation.
Under U.S. patent law, liability can arise from importing, selling, or using a product made using a patented process, even if production takes place abroad. For developers and engineering, procurement and construction (EPC) companies that routinely import solar panels, this often creates overlooked exposure.
In practice, panels are usually selected late in project development, purchased worldwide and treated as interchangeable. Yet the legal risk depends on the underlying production steps that are not necessarily visible in certifications or data sheets.
TOPCon emphasizes this vulnerability. If certain cells or modules are found to be infringing and become subject to exclusion orders or injunctions, downstream companies could experience supply disruption, with modules being delayed or blocked at ports. This in turn leads to project delays requiring redesign or re-tendering, increased commercial risk including missed milestones or financing complications, and potential exposure to litigation.
Even without a definitive ruling, uncertainty can change behavior. Developers may avoid certain technologies or vendors to reduce risk, even if performance is superior.
Shared challenges
What makes TOPCon a useful case study is that it highlights both sides of the market in different ways. Manufacturers must decide how to innovate and scale, patenting and actively enforcing key processes. Developers and other stakeholders must decide how much to rely on imported technologies that could later be restricted.
These decisions are interdependent. If manufacturers delay TOPCon implementation or pass on licensing costs through pricing, downstream companies will feel the impact. If developers avoid TOPCon due to perceived risks, manufacturers’ incentives change accordingly.
This shows that IP risk is shared within the solar energy value chain. Even if it manifests differently at each stage, different principles apply.
For manufacturers, it is critical to integrate Freedom-to-Operation (FTO) analysis early on as part of the adoption decision before major capital investments.
Developers and asset owners, meanwhile, must consider IP posture in addition to cost and performance when selecting suppliers. The most disruptive IP issues often arise late, after capital has been committed and schedules have been established. Early visibility and contingency planning are critical.
Variable in the supply chain
The TOPCon patent dispute is a live stress test for how the U.S. solar industry manages risk during a rapid technology transition. IP risk can determine whether technologies remain available when projects are ready to build.
The lesson is clear: IP has become a variable in the supply chain. Companies that view it as a late-stage legal issue risk having to make reactive decisions with limited options. Those who integrate IP into strategy and procurement will be better positioned to deal with disruption without sacrificing performance or timelines.
About the author
Isaku Begert is an associate at Marshall, Gerstein & Borun LLP, where he focuses on intellectual property litigation involving complex, technology-driven disputes. His practice includes patent enforcement and defense issues across a range of sectors, with particular experience in manufacturing-oriented and process-based technologies. Based in Chicago, he represents clients in U.S. federal patent litigation nationwide.
The post Avoiding IP problems first appeared on pv magazine Global.
