Which role for patent laws in future climate change action? Dr Estelle Derclaye AIPPI Annual Congress Paris, 4 October 2010

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1 Which role for patent laws in future climate change action? Dr Estelle Derclaye AIPPI Annual Congress Paris, 4 October 2010

2 Introduction No firm commitment in December 2009 to reduce GHG + IPR do not appear in Copenhagen Accord Not a big problem that IPR not part of Accord as other measures can help fight climate change too as reflected by the Accord esp. funding (c) E. Derclaye

3 Introduction Tech transfer appears quite a few times in the Accord but free intellectual property, compulsory licenses, suspension or denial of patents on green technologies do not Tech transfer will happen partially and on an adhoc basis and many technologies which are already in the public domain can also be used Nevertheless, intellectual property law and more particularly patent laws still have a role to play to reduce our GHG. (c) E. Derclaye

4 Plan I. IP related solutions and their merits II. Non IP related solutions and their merits III. Conclusion (c) E. Derclaye

5 I. IP related solutions (c) E. Derclaye

6 1. Green patent law Patent laws should not only be green(ed) (i.e. polluting inventions should be unpatentable negative system), they should also treat those green inventions which go above a new requirement of eco friendliness more favorably (positive system) => mixed system Integrating environmental policies into other policies (including IP policy) is a requirement of the Treaty on the Functioning of the EU and the EU Charter of Fundamental Rights (c) E. Derclaye

7 1. Green patent law Several incentives can be envisaged to reward greener technology: accelerated examination reduction, cancellation or waiver of fees removal of green inventions from deferred examination earlier publication and/or priority at the opposition and infringement stages stronger protection (e.g. lengthen the term of protection) Require disclosure of information about the invention s environmental impact (only biting at infringement stage) (c) E. Derclaye

8 1. Green patent law merits 1. Adding a condition of eco friendliness = more costly for inventors BUT part of the cost of our survival cost is not additional to cost of compliance with environmental law or if wish to use eco labels rewards flowing from the system (longer term, faster examination, reduced or cancelled fees, etc.) can potentially offset this cost (c) E. Derclaye

9 1. Green patent law merits 2. Proof of eco friendliness may be difficult Not more than complying with environmental law standards Processes may be neutral => patentable but no favorable treatment (c) E. Derclaye

10 1. Green patent law merits 3. If polluting inventions are unpatentable, everyone can pollute => technology is available at a cheaper price than if it was patented if invention = unpatentable, much less likely engineers will embark into inventing it as cannot recoup investment (unless can keep it secret) Patent = sanction from the state; it cannot disclaim responsibility for granting patents on polluting inventions + paradoxical and contradictory that state grants patent on polluting inventions and then prevents its use later via environmental law (c) E. Derclaye

11 1. Green patent law initiatives USA: pioneer 1970s fast track (if the invention materially enhances the quality of the environment or materially contributes to the development or conservation of energy resources) Dec pilot program enhanced system (c) E. Derclaye

12 1. Green patent law initiatives UKIPO, May 2009: green channel = accelerated procedure for green tech. Condition: making a reasonable assertion that the invention in the patent application is one which has some environmental benefit the IPO will not require further reasons, there is no specific environmental standard (c) E. Derclaye

13 UK Green Channel so far Good idea but bad implementation?? Inventions which only marginally improve the environment can benefit May lead to a patent race which will treat more deserving and less deserving green inventions in the same way. So far however the system seems to work well due to vigilance of IPO as to eco friendliness claims June 2010: IPO announces database of green patents granted through the green channel As of 15/09/2010: 129 applications: 1 BE, 2 DK, 1 HK, 1 IE, 1 MU, 1 SG, 1 TW, 11 USA, rest UK (c) E. Derclaye

14 EPO Also new database unveiled by EPO on 30/09/10 Hope that such databases will facilitate transfer of green tech, because easier for green patent owners and prospective licensees to hook increased transparency regarding owners of green patents will aid negotiations in the international climate change treaty talks. (c) E. Derclaye

15 The U.S. s contribution Since December 2009, USPTO has implemented a pilot program for certain inventions, namely for applications pertaining to green technologies including greenhouse gas reduction (Green Technology Pilot Program) Examination of these applications will be accelerated even if do not meet all of the current requirements of the accelerated examination program. fee required for petitions to make special is waived. There is a standard to meet: only patent applications for inventions which materially enhance the quality of the environment (c) E. Derclaye

16 Green Petition Report Summary Report of 26 August 2010: Petitions awaiting decision 42 Petitions granted 716 Petitions dismissed 584 Petitions denied 135 Total Petitions 1477 Issued US Patents having granted Green Pet 40 Timeliness : most requests are decided within a month and a week max. In May 2010 the USPTO expanded the categories of inventions which can benefit form the program so more applications will be eligible for the program (c) E. Derclaye

17 2. Patent reward system merits The incentives above won t/might not work because R&D costs + time devoted to most environmental innovation likely substantially exceed the delays and expense of patent prosecution Most eco inventions outdated before expiration of patent term => lengthening term does not significantly increase incentives to invent Instead, state should buy patent and reward inventor by payment based on the inventor's expected profit + make invention available to public for free or a fee BUT What if state cannot buy all green patents? Not always possible to calculate payment Inventors may prefer the market (as may be more profitable) so reduction of incentive to invent => a choice is better than imposing a patent rewards system Fee? Taxpayers have already paid! (c) E. Derclaye

18 3. Compulsory licences merits New compulsory licences on green patents = no because would decrease the incentive to invent in the first place International system in place (compulsory licence for failure to work, dependent patents) = good but should be made mandatory (c) E. Derclaye

19 4. Private initiatives Eco Patent commons: companies offer patents which provide environmental benefits for anyone to use free of charge See also GreenXchange More generally, grant free or low cost licenses on certain technologies for a set period to DCs and LDCs Good initiatives but voluntary and thus many important technologies may not be available (c) E. Derclaye

20 5. Free publicly funded inventions Inventions made by publicly funded bodies such as government departments, universities and research centres, should normally be free for all BUT Such bodies are encouraged to patent good only because obligation to disclose efficiently but then should not monetise them + publication of scientific papers containing disclosure of invention can do the trick + avoid costly and long patenting process If a state owns a patent, it could simply exchange/trade it: e.g. US owns patent on wind tech and China on solar tech (c) E. Derclaye

21 The road to Cancun 4 9 October Tianjin and then COP 16 29/11 10/12/2010 Ad Hoc Working Group on Long term Cooperative Action negotiating text chapter IV clause on IPR: Still 2 options: no reference to IPR or measures such as Creation of a Global Technology IPR Pool which promotes and ensures access to IP protected tech and associated know how to DCs on non exclusive royalty free terms Ensure sharing of publicly funded technologies and related know how to promote transfer and/or access to ESTs to DCs on royalty free terms Exclude IPR on ESTs to adapt to and mitigate climate change for DCs and LDCs (c) E. Derclaye

22 II. Non IP related solutions (c) E. Derclaye

23 II. Non IP related solutions 1. Not all climate friendly technologies are protected: some inventions patents expired and others never been patented = use them! 2. Financial help for DCs and LDCs: tech transfer is nothing if no money to build renewable energy plants on their land reforest their land (c) E. Derclaye

24 II. Non IP related solutions 3. Suspension of IPR if a country does not respect its international treaty obligations on environment, based on art. XX and/or XXI GATT which allow general and security exceptions to GATT/WTO rules. This is WTO compliant as according to WTO itself, sustainable development and the protection and preservation of the environment are WTO fundamental goals (c) E. Derclaye

25 Conclusion Patent offices have started to green their patent laws by introducing fast track systems and reduced fees. However, doubtful whether the initiatives are sufficient or even at all used for reasons given above Green technologies are available in the public domain, but remain quite expensive, so cannot yet beat the price of oil We need more cost effective ways to produce energy => patentable inventions will be subject to the patentees power for 20 years. Unless there is competition in the market the price of these technologies will thus remain high and last 20 years and we cannot wait 20 years => patents are just one part of the equation (c) E. Derclaye

26 Conclusion => all the solutions noted above need to be combined to achieve the most efficient way of reducing our GHG emissions More than patents, what will be needed is collaboration, funding, goodwill and above all commitment. E.g. change our consumption habits, at least for a while (c) E. Derclaye

27 For more developments see: Not only innovation but also collaboration, funding, goodwill and commitment: which role for patent laws in post Copenhagen climate change action [2009] 9 J. Marshall Rev. Intell. Prop. L Patent law s role in the protection of the environment: Reassessing patent law and its justifications in the 21st century [2009] 3 IIC Should patent law help cool the planet? An inquiry from the point of view of environmental law [2009] EIPR ; (parts I and II); republished on request by the editor of the International Energy Law Review (IELR) 2009, issues 5 and 6, p , Intellectual property rights and global warming [2008] 12(2) Marquette Intellectual Property Law Review, (c) E. Derclaye

28 Thank you for your attention (c) E. Derclaye