Threat to "Green" patents

One of the less publicised elements of the international climate change negotiations has been how less developed countries are to be able to access new technologies that would allow them to industrialise while minimising the impact of this on the environment. Suggestions have included restrictions on the ability to patent or on the rights granted to patent holders in this area and the introduction of compulsory licensing schemes. If you are developing technologies in this area then you need to make your voice heard to your member of parliament, trade body and the relevent government departments well ahead of the next round of talks in Durban later this year.
Intellectual Property Magazine asked me to write a short piece on the issue and with their kind permission the text of that article appears below.
Green Technologies and Access for All
Governments around the world are becoming increasingly concerned about how the world will meet its growing energy needs; fossil fuels are a finite resource and cause environmental damage the extent and nature of which remains uncertain but the alternatives are themselves controversial such as nuclear power or seem more promise than reality as the power of the oceans remains unharnessed. Th Te concerns together with a growing world population anxious to share in the benefits of industrialisation have led to a growing movement towards international cooperation to counter the potential damage of unfettered fossil fuel use but also a general spur to innovation in the fields relating to clean technologies.
This urgency has been increased by the adoption of the Kyoto Protocol in 2007 setting out ambitious goals to reduce carbon emissions on a global scale . Some countries have been very active in working towards these goals and the European Union among others has already announced that it is ahead of target in a number of areas. At home we have seen the Scottish Government establish even tougher targets and embrace the opportunity to stimulate the economy through innovation in this sector. Patent offices in a number of countries such as the UK and US have established fast track processes for the sector and since Kyoto the number of patent applications worldwide in clean tech has grown expotentially however some 80% of these applications have come from only six countries-the US, the UK, France, Germany and interestingly, India and China.
The Kyoto Protocol already envisaged the need to ensure that these new technologies were introduced on a global scale otherwise the elimination of emissions in one part of the globe would be made meaningless by increases elsewhere. Developing countries quite reasonably note that the industrialised West gained its current ascendancy without much consideration for the environment and through largely unfettered use of natural resources but now that these matters are better understood and more seriously considered they are being asked to deny themselves the opportunity to build their own economies and raise living standards of their own populations by the same methodology. More controversially they claim that the operation of the international patent system works to penalise them a second time by denying them access to these monopolised technologies. Since Kyoto the climate change discussions have been looking at how access to the new technologies could be assured.
As one of the most discussed ideas was some form of compulsory licensing there was an immediate flurry of studies in the West as to the potential impact of such schemes. The Trade Directorates General of the European Commission commissioned a report analysing the barriers to adoption of new technologies in the sector in developing countries. This report concluded that the existence of patents were not a substantial barrier but rather the lack of economic development in the poorer countries together with the high costs of implementation, uncertainties as to the worth of some of the technologies and the under development and small size of the local market were all considerably more important factors in hindering adoption of new technologies. The report further noted that for those countries now in the throes of industrialisation a strong patent system would actually stimulate local industry and increase the amount of technology transfer that was undertaken . The US Chamber of Commerce commissioned a report from Garten Rothkopf which concluded that compulsory licensing would have a major impact on jobs in the US and would also lead to a significant loss of export markets to US firms. This report also raises the important point of how any technologies subject to a special regime could be effectively defined. It is puzzling that while in the months leading up to the Copenhagen meeting on climate change American business was able to energise both the media and politicians behind their interests in maintaining the strength of the patent system to the extent that Congress forbade the US negotiators from agreeing to any provision that would weaken the status quo while in Europe there was little media or public discussion of the issue at all .
Green tech projects come in all shapes and sizes but those that will perhaps have the greatest impact in offering new ways of generating energy tend to require huge amounts of investment; if the patent system is weakened investors will be reluctant to resource this high risk, high cost type of development. While many governments in the industrialised world including the UK are showing a commitment to the sector it cannot be assumed that they understand the part that the patent system plays and more importantly what it does not do if those involved do not take the time to explain to their representatives why it is so important to them. Not everyone does see a problem with compulsory licensing; just as the US Chamber of Commerce was publishing its report against compulsory licensing Alison Brimlow, the President of the European Patent Office gave a speech proposing that patent owners in this sector be denied the right to monopolise their intentions but that instead they should be entitled to charge only a licence fee to allow others to access their inventions.
In spite of some lobbying by countries such as India, intellectual property ownership was not addressed in the Copenhagen Accord although there was further progress on the question of technology transfer. The Accord agreed to establish “a technology mechanism to accelerate technology development and transfer in support of action on adaptation and mitigation”. Over the next year discussions continued on this subject leading up to the plenary meeting in Cancun. Cancun again saw the issue of ownership put aside while the goals of the Technology Mechanism became both broader and less well defined. The working groups this spring have sought to develop processes for how the two bodies to be established under the Mechanism are to work. These are the Technology Executive Committee and the Climate Technology Centre and Network. There are also still questions as to how this whole project is to be funded and managed and how it will relate to the Green Climate Fund. The next full meeting is in Durban at the end of the year when it is planned to finalise the Mechanism. In a statement following a recent meeting of a group of countries including India and South Africa, China and Russia it is made clear that this group is determined to put intellectual property back into the mainstream discussion on climate change so one should expect to see compulsory licensing or even some limitations on patenting in the sector being proposed in Durban. In considering any lobbying activity is important to also keep an eye on any developments in the TRIPS negotiations as that mechanism has already set a precedent for a the compulsory licensing regime for certain classes of medicine.
To be effective any argument should be based on a detailed analysis of the factual impact on your own situation and the broader economy which should also offer practical suggestions as to how the overall goals of scientific dissemination and effective implementation could be achieved by other means. It is worth looking at the proposals for the Climate Technology Centre and Network for inspiration as some of the suggestions for collaborations and stimulating internal innovation may prove to be opportunities rather than threats.

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