Battery recycling will be increasingly important over the coming years, not least as the batteries of fleets of early-adoption EVs reach the end of their lifetimes. Full of expensive and hard-to-extract minerals, it makes environmental and economic sense to recycle batteries as far as possible. The importance of recycling is central to the EU’s new battery regulation.

Due to the nature of battery recycling, it may well be that many inventions in this field can only be protected by process claims, with product claims unlikely to be feasible. After all, the definition of “recycling” is the process of converting waste material into new materials or objects.

Although an oversimplification, product claims are sometimes seen as being more valuable than process claims. One of the reasons for this is that determining infringement of a product claim can be more straightforward than for a process claim. A patent holder might simply obtain a competitor’s product and analyse it for all the features of a product claim, whereas for a process claim they might wonder what is going on behind closed doors at the competitor’s plant. Nevertheless, even if process claims are the only way forwards for protecting battery recycling inventions, that should not dissuade innovators from seeking patent protection.

Patent claims protecting a process also protect the product directly made by that process, even if that product was made in a territory where the process patent is not in force. This has particular relevance for closed-loop battery recycling inventions, where critical materials are recovered from end-of-life batteries at a sufficient quality to be re-used in making new batteries, rather than being down-graded and used in successively lower value applications. Through careful drafting of process claims, a patent protecting an invention which resides solely in a battery recycling process could provide protection for a variety of downstream battery-related products, from raw materials to batteries themselves, giving more teeth to the process patent than might immediately meet the eye.

Indeed, with the EU battery regulation set to impose gradually increasing minimum levels of recycled content for new batteries entering the EU market, and for the recycled levels to be reported on the battery passport, European patents protecting recycling processes could be exceptionally valuable – even if the patented recycling process is actually performed outside Europe.

Of course, the process claims protecting the core of a battery recycling invention are valuable by themselves, regardless of the protection also provided for downstream products. It would be an unusually bold and risky approach for a competitor to knowingly infringe process claims, relying solely on the hope that the patent holder would never know what they are doing. The simple existence of a robust patent protecting a battery recycling process is likely sufficient to prevent copy-cats or generate licensing revenue, without the need to begin infringement proceedings.

Moreover, with the recent opening of the UPC, holders of process patents have more options for enforcement. The UPC can grant “saisie” orders, which are court orders for inspection of premises and seizure of products and documents where it is reasonably believed that infringement may be occurring – effectively sending the bailiffs to your competitor’s door to find out whether they are indeed infringing. Such orders have long been part of French patent practice (saisie is the French for seizure), but with the opening of the UPC they have now been extended and harmonised across much of Europe, adding to the deterrent provided by a process patent. After gathering evidence of infringement through a UPC saisie order, infringement proceedings can be initiated with enough certainty.

In summary, process claims should be at the core of the IP strategy of a battery recycling innovator, not least due to the attractive options for enforcement in Europe provided by the UPC, and to the protection provided for products directly made by a patented process. Our firm’s multi-disciplinary Energy team is well-placed to advise on these matters and can assist in gaining broad and robust patent protection in this area, as well as handling national or UPC litigation.