Fuel Cells and Bayh-Dole: The Pursuit of a Hydrogen Energy

By Gene Quinn on November 4, 2012

HyperSolar, Inc. has developed a technology that they claim will produce hydrogen that is renewable and utilizes natural power sources: sunlight and water. According to a press release issued last week, they have filed a patent application along with the University of California, Santa Barbara, asking for the “protection and stability of electroactive units used for production of fuels and chemicals.” According to HyperSolar, Inc., their invention could greatly reduce the cost of manufacturing and using fuel cells.

HyperSolar is currently in a year-long sponsored research agreement with the University of California, Santa Barbara. This arrangement between HyperSolar and UC is yet another example of the private sector working closely with a University to develop and deploy technologies. Such a relationship between the private sector and University researchers would not have been possible prior to the passage of Bayh-Dole in 1980.

The Bayh-Dole Act, which was enacted on December 12, 1980, was revolutionary in its outside-the-box thinking, creating an entirely new way to conceptualize the innovation to marketplace cycle. Prior to Bayh-Dole, which grants ownership rights in patented innovations to Universities, it was nearly impossible for federally funded research to be licensed. The process wasn’t working.

In my interview with Senator Birch Bayh (ret.), who was the driving force behind the Bayh-Dole legislation, he explained to me that it was certainly logical to believe that since taxpayer dollars funded the innovation any inventions coming therefrom should be freely available. The business reality, however, was that federally funded innovations were not being licensed, which meant that federally funded research was largely not benefiting anyone. Senator Bayh was willing to explore a new solution, indeed a counter-intuitive solution, that leveraged ownership and exclusive rights. The result has been a staggering success of epic proportions.

In the 30+ years since Bayh-Dole was enacted it is responsible for the creation of 7,000 new businesses based on the research conducted at U.S. Universities. As a direct result of the passage of Bayh-Dole countless technologies have been commercialized, including many life saving cures and treatments for a variety of diseases and afflictions. In fact, the Economist in 2002 called Bayh-Dole the most inspired and successful legislation over the previous half-century.

Who knows whether the HyperSolar/UC technology will ultimately lead to the dawn of a hydrogen energy economy. What we do know is that without the forward-thinking legislation that gives Universities incentive to partner with the private sector there would be no such potential. As alluring as alternative, cheap, clean energy is, efforts to get from where we are to where we ultimately need to go will be extremely expensive and the research highly speculative. Such high cost and extremely speculative research is realistically only carried out by Universities.

What is a fuel cell?

Fuel cells combine chemical energy, such as hydrogen, with an oxidant such as oxygen (air) to produce electrical energy, through the use of metal electrodes. Because of the corrosive aspect of the chemical reactions involved, almost all conventional fuel cells use electrodes made from platinum and other durable, but costly materials.

Fuel cells are similar to batteries, which is also employ an electrochemical energy conversion. With a battery, all the chemicals used are stored within the battery body, so it will eventually use up all the energy available. With a fuel cell on the other hand, there is a constant flow of chemicals to and from the cell so the energy can never be completely used up.

The platinum electrodes used in fuel cells are the most costly, especially fuel cells used to power vehicles. For example, the current production cost of the Honda FCX hydrogen fuel cell vehicle is estimated to be $120,000, and the planned Toyota vehicle is expected to retail at $138,000. While automotive use of fuel cells is still experimental, industrial and residential use of fuel cells for electricity generation is a fast growing market. Research firms project that the fuel cell market will reach $785 million in 2012, with an estimated compounded annual growth rate of 16.6% from 2010 to 2014. HyperSolar is hopeful that its proprietary coating can be used to protect less expensive metals in order to replace platinum electrodes, which will lower the cost of fuel cells in the current market and the emerging automotive market.

Ultimately, the HyperSolar goal is to make the process of converting hydrogen into usable energy cheaper. According to the CEO of HyperSolar, Tim Young: “A big hurdle in our solar to hydrogen conversion process is the stabilization of the electrodes against photocorrosion. We recently developed an efficient and low cost protective polymer coating that allows for good electrical conductivity as well as preventing photocorrosion. This was a significant achievement for solar to hydrogen production. However, our continued research has revealed that this coating may offer broad benefits in many electrocatalysis applications, such as fuel cells.”

HyperSolar says that their technology is not only low cost; it can utilize any water source, even wastewater and seawater. This makes the technology even that much more green. Unlike other energy sources that produce harmful emissions and pollution, hydrogen fuel produces only water as a byproduct.

Why is this all of this important?

Young says that the development of their technology is very promising because of what it could mean for a hydrogen economy. “As fuel cells become more affordable, we believe the demand for our renewable hydrogen technology will increase correspondingly,” Young explained.

What does this mean for everyone if the patent is approved? It could mean a greener and cheaper energy source, less cost and less waste. It could also mean an entirely new industry will be created, which could lead to millions of high paying jobs. It could also be a significant step toward energy independence, as well as reducing the cost of energy, which would be good for families and good for businesses. Cheaper, plentiful, green energy with the economic benefit of more jobs. Who doesn’t want that?

What about solar power?

While we dream of a hydrogen energy economy, particularly one that can use waste water and sea water to produce cheap and abundant hyrdrogen, companies like HyperSolar are not only seeking scientific advances in the realm of new energy technologies. They continue to attempt to improve another abundant energy source that continues to be extremely attractive, but highly illusive due to the fact that it is so expensive. Solar power is not yet a meaningful solution to our energy problems, but someday in the future could provide at least a meaningful part of the overall solution.

The most costly part of the solar energy equation are the solar cells used in solar panels. Solar panels are a green source of electricity that utilizes the sun’s power rather than using fuel or other pollution-causing sources. Many current solar solutions use a photovoltaic cell technology that is only able to convert a part of the harvested sunlight into usable electricity. This shortcoming means that solar power manufacturers must use more solar cells in order to deliver enough electricity. Since solar panels are costly, this has prevented solar energy from becoming a major electricity source.

Some have sought to solve the costly solar cell problem before and offer other solutions. One such solution was a concentrated photovoltaic that used cheap optical elements like mirrors and lenses to gather sunlight onto a smaller surface so that lesser amounts of photovoltaic cells need to be used. The problem with this solution was that opticals tended to have a non-zero focal length, requiring the modules to be bulky and tall, rather than flat like solar panels.

HyperSolar has a patent application pending on another technology. While we do not yet know what is in their hydrogen fuel cell patent because it has not yet been published, we do know about this other solar technology.

U.S. Patent Application No. 20120006382 explains that the method used to harness solar energy is different than many other approaches. The patent application explains:

The present invention provides a highly advantageous device for concentrating incident light, and is particularly applicable to photovoltaic systems, and in particular to increasing the performance of conventional photovoltaic cells and panels. Using these devices enables the light incident on photovoltaic cells to be increased, thereby reducing the photovoltaic cell area needed for a particular level of power generation. Furthermore, the light concentration and resulting decreased photovoltaic cell area can be accomplished without requiring a tracking mechanism to keep the cells oriented to the sun. The devices are useful for essentially any flat panel photovoltaic system, including silicon-based panels and Group III-V panels. Thus, the present light concentrators provide more efficient use of photovoltaic materials without the complexity of producing hybrid cells.

Indeed, it sounds like the previous HyperSolar solar technology will be married with the new fuel cell technology. “By simultaneously reducing the cost of solar powered hydrogen production and fuel cells, we can move several steps closer to the reality of a hydrogen economy. If further development proves successful, we hope to aggressively target the immediate and existing fuel cell market with our coating technology to reduce the cost of fuel cells.”


Maybe soon we will be able to add clean, plentiful, cheap, green energy to the long list of life altering technologies born from the most successful piece of domestic legislation since World War II.

Thank you Bayh-Dole.

The Author

Gene Quinn

Gene Quinn is a patent attorney and the founder of IPWatchdog.com. He is also a principal lecturer in the PLI Patent Bar Review Course, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam.

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields, but specializes in software, systems and electronics.

is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.

Gene is a graduate of Franklin Pierce Law Center and holds both a J.D. and an LL.M. Prior to law school he graduated from Rutgers University with a B.S. in Electrical Engineering.

You can contact Gene via e-mail.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 3 Comments comments.

  1. David November 5, 2012 9:48 am

    This is the second article on Bayh Dole I have seen in recent days with the implication that prior to Bayh Dole, the technologies were being locked up (not licensed). Bayh Dole was before my time, but my understanding was that universities weren’t patenting things before, and all those technologies would have been in the public domain for anyone willing to find them in the research literature. Certainly, there was little motivation for professors to file a patent that was just going to be handed to the federal government and provide no benefit to the universities or labs doing the work.

    Was there limited licensing prior to Bayh Dole because there was limited patenting, or was it a failure to license patented technologies “owned” by the Federal government?

  2. Gene Quinn November 5, 2012 7:46 pm


    There was a failure to license patented technologies because the regime in place was exceptionally onerous. It was so burdensome to license patented University technologies that it just didn’t occur.

    For an excellent discussion of the history of Bayh-Dole, the problems and the solution read my interview with Senator Birch Bayh: