The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 20 August 2009

Is IP causing global warming?

According to noises coming out of WIPO and other places in recent months (including the EPO President - see here, for example) IP, and patents in particular, have a role to play in how mankind is to deal with the apparent threat of global warming.

(right: is the solution to recycle IP? Source: jcdesignz)

According to a newsletter from law firm Sidley Austin (here), kindly forwarded to the IPKat by one of his regular readers, some possibilities for how IP rights could be affected seem to be quite radical and, to many IP owners, clearly potentially worrying. Proposals that have been put forward by China and India (among others) to the UN body UNFCCC include the following:

  • Excluding "climate-friendly" technologies from patentability [clearly quite different from the 'Green Channel' now in action in the UK], including the possibility of revoking existing patents;
  • Mandating technology pools for licensing green technology freely or cheaply [the IPKat fails to see how the free option is effectively any different from the first proposal];
  • Mandating or encouraging compulsory licensing for particular green technologies;
  • Reinterpreting international agreements on IP and climate change; and
  • Establishing a new international body to address technology transfer, including IP issues.
All of the above proposals seem to assume that IP is somehow a barrier, rather than an incentive, to the introduction of technologies that can either mitigate or alleviate the effects of global warming (leaving aside the question of whether mankind has anything to do with causing global warming in the first place). To the IPKat's mind this implies that the questions being raised are to do with whether IP is going to be a cause of more global warming (if technologies are hindered) or the saviour of mankind (if it helps the right technologies to be implemented).

The IPKat would, however, like to offer a third view, which is one that appears to be shared at least in part by one commenter in this year's WIPO magazine special on climate change and IP (see here). This view is that IP has very little, or possibly absolutely nothing, to do with global warming, and (this is where the IPKat is taking the point to its logical conclusion) that any tinkering of the kind suggested by the proposals above is very likely to cause more harm than good. In this Kat's view, applicants should instead be left to get on with trying to patent what they see as important, and the market (perhaps with government assistance in deciding which technologies to help out) should be left to sort out which of these is actually important and will prosper. This is presumably not a view that would be shared by those at WIPO and the UNFCCC, who would have to find better things to do with their time than fly round the world (emitting lots of carbon dioxide in the process) to meet and discuss this apparently pressing issue.

The Sidley newsletter also expresses an opinion about this matter, which the IPKat would tend to agree with:
"These discussions [at WIPO, UNFCCC and elsewhere] are highly charged and may reconfigure the international legal framework in a way that undermines the vital intellectual property rights of innovative industries and puts jobs and investments at risk. Innovative companies with valuable intellectual property should work with governments, international organizations, and like-minded stakeholders to influence the outcome of these deliberations in an appropriate manner. Each of the meetings on the road to [the climate change conference in] Copenhagen offers an opportunity for building consensus and influencing the process. There is a need for solutions that can preserve valuable intellectual property, provide sustainable incentives for the development of climate-related technologies, and facilitate the diffusion of climate-related technologies around the world."
The IPKat, who can see why such discussions would be highly charged given the combination of two currently highly contentious issues of global warming and IP, would like to suggest that now might be the time for those interested in developing patentable technologies that have anything to do with global warming start to make their voices heard.

PS: A discussion paper from an Indian thinktank on the issue can be read here. The IPKat thanks the author for informing him.


Megan said...

I don't know. I think it would be better to offer free patent prosecution- no filing/search/examination/grant and even maintenance fees, in return for a shortened patent term, like 10 years. Companies may be reluctant to invest in R&D and certainly to share their discoveries with others if they had no patent protection. If obtaining the patent was free, they would be more likely to patent, in return for giving the invention to the public sooner.

Anonymous said...

Even if agreement can be reached on everything else, one major obstacle remains, namely how to define a "green" patent application and "green" technology. Such definitions are fiendishly difficult to devise in a way which is both inclusive (of all green technologies) but also which does not lead to anomalies where technologies which were not intended to fall under the definition can be interpreted as doing so.

I am not saying that it is impossible, but it will be difficult. Plus who will interpret any definition and what will the costs of establishing the meaning of such a definition (re case law) be?

I am inclined to agree with David on this one, best to leave it alone and to try to stimulate the development of green technology with different tools, such as government grants, tax incentives etc. IP is simply not designed to address this problem. This reminds me of the debate around biotechnology patents - the environmental lobby often attack the patenting of such innovations, where they should have concentrated all of their efforts on lobbying to change the regulatory legal framework.

Anonymous said...

The "Eco-Patent Commons" is an industry driven response to this question.

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