Freetards today, Greentards tomorrow?*

The IPKat noticed a short piece recently posted to the EurActiv website, in which EPO President Alison Brimelow has made some interesting comments regarding how patenting of 'green' technology might fare in the future. Ms Brimelow's comments are reproduced in full for the benefit of the IPKat's readers (and just in case they disappear like last time):

"Climate change, though much debated, remains a disputed subject. A steady stream of headlines warning of worsening impacts of climate change is putting all of our societies under pressure to speed up efforts to reduce mankind's contribution to this looming crisis, yet serious minds differ on the subject. But the existence of a possible threat in itself acts as a stimulus to innovators, and eco-innovation may prove the next battle ground for the reputation of patents.

Against this background the EPO, with the European Commission and the Slovenian EU Presidency, have made patents and eco-technology the focus of the European Patent Forum, which takes place in Ljubljana in early May. The EPF is the first major conference ever to tackle the question of how the patent system needs to be adapted to foster innovation in the climate sector. Participants include leading experts with contrasting views on the current patent system, and the changes needed to face up to one of the most interesting and controversial challenges of our times. Our partners, the Slovenian EU Presidency and the European Commission, add political profile to the Ljubljana Forum, together with distinguished advocates such as Ivo de Boer, chairman of the Bali Climate Conference.

At the heart of the debate are the questions of cost and access to new technologies. The former is a huge concern for the developing world countries whose ability to contribute to combating global warming is obviously constrained by the cost and availability of green technologies. Does patent protection significantly add to these costs? And is access to green technologies too severely limited by companies holding patents on these technologies? Critics will certainly answer both questions affirmatively while defenders of the present system can easily point to the crucial importance of published patent documents as a vast, freely accessible source of technological information which encourages others to take innovation further forward.

We can all agree, however, that the patent system must not become an obstacle to the development of green technologies in Europe. In other words, the practice of using patents to handicap or block the efforts of competitors must not be allowed to creep into this sector as many believe it has in the area of communication and information technologies [irate IPKat comment: this sounds like one of those lies that, if repeated often enough, people will start to believe it]. Here, multiple patents owned by different patentees cover individual products and can serve as real obstacles to moving the technologies forward. Supporters of a "soft IP regime" [IPKat comment: notably led by the very patent-friendly company IBM] are likely to advocate the introduction of the price mechanism to save clean technologies from the affliction of these so-called "patent thickets". In other words, patent owners can ask to be paid for the use of patented know-how but they cannot block it [IPKat comment: so what would be the point of having a patent if it cannot be used for its primary purpose?].

Initiatives such as Eco-Patent Commons managed by the World Business Council for Sustainable Development have already been launched to boost the spread of clean technologies. Companies participating in this project are making available patents on clean technologies free of charge. A slightly different approach is planned for the "Green Intellectual Property Project," which will pay a proportion of patent-derived income into a trust fund for supporting the development of patent-protected green technologies.

At the very least, the European Patent Forum does much to put the spotlight on a vital aspect of Europe’s bid to lead the world towards effective actions to mitigate the perils of climate change. It should also demonstrate the EPO's determination to lead thought and debate on this mission while underlining the indispensable contribution that invention has made and will continue to make. As in previous years, the Forum sees the award of the European Inventor of the Year prize. Among the twelve inventions selected for the award, the judges have also nominated appropriately a number of innovations which contribute to fighting climate change, for example by building lighter and more fuel-efficient cars, or by making off-shore wind facilities more durable."

The mention of the possibility of patents being an obstacle to the development of green technologies is to the IPKat's mind a little strange to say the least, particularly when it comes from the person at the head of Europe's major patent-granting office. Aren't patents meant to provide some assurance for companies that want to invest large sums of money in new technologies but don't want to have their investment diluted by others copying their innovations? Should green technology be dealt with any differently to other patentable technology? If so, why? Those who object to software patents today at least have an arguable point regarding whether software is patentable at all, but how could anyone argue that patents for innovations in one particular category definitely not excluded by law could or should be treated differently? Isn't this a matter in any case for the competition authorities, and nothing at all to do with the patent-granting authorities?

More freetards here, here and here. More greentards here, here and here.

*For those puzzled by the title, the IPKat recommends the highly entertaining Fake Steve Jobs blog.
Freetards today, Greentards tomorrow?* Freetards today, Greentards tomorrow?* Reviewed by David Pearce on Thursday, May 08, 2008 Rating: 5


  1. Come now, surely it would be bizarre if the head of a patent-granting office did NOT consider whether granting patents was a "good thing" or not?

    You betray yourself with "Aren't patents meant to provide some assurance for companies that want to invest large sums of money..." Note the "should" in there. If there is evidence that this is not the case (and numerous sutdies have stated this is the case for many fields - though not my own one of chemistry), then people should be concerned. And the person who, arguably at least, should be the most concerned is the person n charge of giving out those patents.

    Cheers, Luke

  2. Remember Art 69 of the EPC: fair protection but (just as important)reasonable legal certainty. If the boss of the EPO is focussed on balancing the public's need for legal certainty with the inventor's need for fair protection, that's just fine with me.

  3. I also believe that this is a worthwhile initiative - the whole point is to pre-empt, rather than react to, any issues of abuse of the patent system to the detriment of technologies which, let's face it, are a fundamental part of solving what is a global crisis.

    Note my use of the word "abuse". The honest use of the patent system to prevent the loss of the investment in research and development is not at issue here, since the accessibility of these technologies to large emerging markets such as China and India requires that low cost be factored in from the very start of the research and so lead to cheaper technologies anyway. Furthermore, the prices would have to be kept below a certain threshhold in order for the products to remain accessible to these markets so patent holders could not hike the prices artificially to unjustifiably increase proft margins.

    What it is intended to prevent is the abusive and speculative thicketing/trolling of this area in cases where in fact no or little technical progress has actually been made (as has already happened in particular in the area of pharmaceuticals). As the comments here point out, the patent system is meant to foster innovation and indeed does so when it is used properly.

    However, abuses which make little or no actual technological contribution corrupt this goal and in such a vital area of technology, it is a noble goal to prevent this from happening at the very start of this area's development.


  4. I’m with the Kat on this one.

    It’s not for the head of the EPO or any other patent office to decide whether granting patents is a good thing or not. Their job is to implement the patent law as it is written. They are perfectly entitled to have strong views on the manner in which the law is implemented and to pursue policy agendas in relation to issues and possible abuses relating to grant procedures (the use of divisionals as continuations in the EPO being an obvious example of this, where new regulations can be expected within the scope of the powers explicitly granted to the EPO under EPC 2000).

    Yes, it is right and proper for there to be a debate about the effects of patents in the real world, but I would say it is actually wrong for patent offices to take an active role in the political/social/economic aspect of patent policy. If parties are acting within the law in a way that makes the patenting of particular technologies counter-productive for society at large, then it is for governments to take action, either on the basis of existing provisions such as compulsory licensing or by means of new legislation.

    Patent offices have a difficult enough job judging novelty and, particularly, inventive step. Let them focus on that. High quality examination is the best starting point for mitigating the effects of aggressive/abusive patenting practices.

  5. Patents for any technology deemed essential to society can and should be dealt which much more care than other patents. This is so true that there are special provisions in international patent pacts for patents on medicine, and countries usually have laws in place that enable the government to use any patents needed to deal with emergencies, including compulsory licensing them to competitors of the patent owner.
    This might be a shock to US citizens, but in countries where the constitution states that private property exists to serve society and should not be allowed to harm it, it's way easier to think about giving different treatment to patents with very strong society interest.


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