European Patent Forum Weighs Usefulness Of IP System For Climate Change

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By Kaitlin Mara
This year’s European Patent Forum concluded with a clear consensus on the importance of addressing the problem of climate change but with no clear way forward on how the intellectual property system might help.

But leading figures at the forum suggested that more innovation and significant improvements in the IP system might be a good place to start.

Slovenian Economy Minister Andrej Vizjak, in opening remarks to the forum held 6 and 7 May in the Slovenian capital of Ljubljana, said natural disasters of the last few years have powerfully revealed the extent of humanity’s impact on the environment.

Banning harmful practices, such as the use of particular chemicals, may slow further ecological degradation, said Vizjak, but it is not sufficient to reverse the damage or to “eliminate [its] fundamental causes.” Innovation is needed, he said, to find creative solutions to global environmental problems if we “wish to ensure an appropriate future for humankind.”

“Business as usual is not an option,” said Bernice Lee, head of energy, environment and development at Chatham House, international affairs think tank. “What we need today is a new industrial revolution.”

Alison Brimelow, president of the European Patent Office (EPO), led the view that key technologies may be locked up in the long delays in approving patent applications and other problems with the IP system.

“We know that the patent system can foster innovation,” Brimelow said. But major problems are time and a serious backlog in patent examination. This “slowness leads to opacity, and we do not know what is sitting in these areas of darkness, the unexamined patent applications,” she said.

This problem, she said in an interview with media attending the event, means the patent system is not supporting innovation as well as it could. A dysfunctional patent system “can hardly deliver on climate change,” she added.

Brimelow said that global warming was in itself an apt metaphor for the problems in the global patent system, in that “something seems to be happening, but we do not agree what it is, why it is happening, and what to do about it.” Also clear is that both global warming and the patent system need timely changes. Vizjak said on ecological issues, “available time is getting shorter and shorter.”

Yvo de Boer, executive secretary of the United Nations Framework Convention on Climate Change, told Intellectual Property Watch that there is a “dilemma” between wanting to safeguard research and development on the one hand and, on the other, wanting to address climate change with technology which already exists and just needs to be brought into the market.

The relationship of IP to environmental technology is “not an area fully understood,” de Boer said. In the case of pharmaceuticals, he said, there are a limited number of medications that apply to a life-threatening disease. But with climate change and energy there are thousands, if not hundreds of thousands, of technologies to be deployed.

Over the course of two days, experts in both intellectual property and environmental policy gathered in breakout sessions to try and find ways forward for the patent system, and particularly the European patent system as climate change becomes an increasingly prominent public issue. Viewpoints ranged dramatically, from those advocating an abolishment of the patent system to those advocating a continued strengthening and internationalisation of patent protection, to those advocating a variety of innovative ‘third way’ proposals for intellectual property management.

Also discussed were economic incentives separate from the IP system. Daniel Kammen, a professor in the Energy and Resources Group and the Goldman School of Public Policy, both at the University of California at Berkeley, said that the US government “spends less on energy research than the pet food industry spends on pet food research.” And private sector investment in energy innovation has been “low and depressing” until very recently, he said.

And de Boer said the “market is a critical factor” and that “clean development mechanisms” – allowing rich countries to meet their targets under the Kyoto environmental accord by helping developing countries to reduce their emissions – might be an effective way to finance technology transfer to developing countries.

Finding Ways to Navigate IP for Eco-innovation

While the first day’s discussions set the stage on what technologies are available, speakers on day two focused on exploring the interaction between the patent system and ecological innovation.

A plenary panel on 7 May asked four speakers to answer the question, “Are patents too strong for eco-innovation?”

Bernice Lee spoke of the need to differentiate the innovation process, and look at incentives at all points in the innovation chain: from the initial research and development to the often expensive demonstration or proof of concept for a new idea, to commercialisation, to wider diffusion. Failure to obtain a patent might, for instance, reduce the chance of securing finance for the manufacture and commercialisation of innovative products, which can be a key barrier to widespread technical diffusion, even if it does not prevent the actual development of the innovative idea.

Combating climate change would, Lee said, require “high level strategic choices,” including technical cooperation policies designed around specific technologies at specific stages of development. Intellectual property would be a key component of these policies, she said. But she added that asking developing countries to implement low-carbon initiatives is asking them to trace a developmental path that no one has traced before. It would “require a high level of trust” and “need international cooperation beyond any other area of policy,” she said.

Jerome Reichman, a professor at Duke University School of Law (US), said in coming years it would be important to address the “anti-commons” effect that patent thickets can have on complex technologies. Genomic technology can illustrate potential pitfalls in the patent system, as well as the system’s effectiveness in stimulating innovation, he said.

The patenting of the materials and mechanisms used to enable genetic modification, the landmark Cohen-Boyer technology, by the University of California in the 1980s and 1990s is an example of patenting gone right, said Reichman. Setting up a “take and pay rule” for licensing the technology, in which people might use the patented ideas and then owe the University of California later, benefited both inventors, and the university in the form of large revenue streams, he said. Using exclusive licensing would have run the risk of too few licences being issued and would have slowed the pace of innovation, Reichman said. But allowing many people to use the technology helped it become a platform technology on which the biotechnology industry arose.

Reichman now is concerned that “overly strong” patent rights could be stimulating wasteful research just to avoid unclear patent boundaries. The “ad hoc, case-by-case” way that the patent system operates could pose a detriment to complex scientific innovation, which needs a more holistic approach, he added.

George Weyerhaeuser of the World Business Council for Sustainable Development, which is hosting the Eco-patent commons, a place where companies can pledge free licensing of environmentally friendly technology, said there is curve between propensity to invest in development and the strength of intellectual property rights, and it is important to find the optimal spot. If IP is too strong, then you risk monopoly rents, constrained competitors and barriers to future innovation. But if it is too weak, development is limited, businesses will resort to keeping secrets rather than obtaining patents, and great ideas may never go to market because no one will fund it.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

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