Experts Discuss The Role Of IP In Environmental Technology Transfer

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By Kaitlin Mara
As technology’s importance in the global economy grows, so does the importance of technology transfer. In the case of technology addressing environmental problems, such transfer may prove integral to the ability of poorer countries to undertake conservation measures.

A diverse group of experts met at the World Intellectual Property Organization this week to discuss the transfer of technology as mandated under multilateral environmental agreements (MEAs), and how patent landscaping could help inform best practice. Participants said intellectual property may facilitate needed transfer, but is only one of many potential considerations in the technology transfer process.

MEAS are covenants between several different nations to undertake specific actions to preserve the environment, such as the Kyoto Protocol. Patent landscaping refers to data collections showing ownership, claims and validity of patents on a particular technology or component parts of a technology.

The extent to which developing countries can implement environmental commitments depends on financial aid provided by developed countries, said Markus Lehmann, an economist with the Secretariat of the Convention on Biological Diversity. Article 16 of the CBD specifically recognises that “both access to and transfer of technology among contracting parties are essential elements for the attainment of the objectives of this Convention.”

The same article asks members to cooperate to ensure that IP rights “are supportive of and do not run counter to its objectives.”

Part of WIPO’s life sciences symposia series, the 26 August event, entitled “Patent Landscaping and Transfer of Technology Under Multilateral Environmental Agreements,” was intended to be an informal exchange of ideas between experts from different policy arenas. This particular symposium was designed in part to discuss a study that will be released by WIPO in the next several months, examining case studies of environmental technology and the IP system.

The utility of patent landscapes in determining who has the ability to use a technology was acknowledged. However, echoed from an earlier symposium (IPW, WIPO, 22 April 2008) was the difficulty in assembling complete and current landscapes. Ensuring that the status of a patent as recorded in a database is current is particularly difficult, with keyword searches limited and complex to use.

William Meredith, head of patent information and IP statistics service at WIPO, said ambiguity in terms used, semantic differences, linguistic differences and deliberate obfuscation could interfere with the accuracy of keyword searches, and encouraged searching by classification codes of specific technologies. But, he added, no database has full coverage and it is always wise to check the validity of search results.

Ecological Technology Is Not Pharmaceutical Technology

Once full patent data on a technology can be found, the next step is to determine whether those patents will in any way hinder the technology’s use. A key issue to consider in this is that IP plays a very different role in renewable energy than it does in pharmaceuticals.

Thus, when making evaluations as to the impact of IP on climate change or technology transfer, it is important to note that IP-based mark-ups, significant in the pharmaceutical sector, may only be a minor portion of overall costs in the price of renewable energy generators, said International Centre for Trade and Sustainable Development Intellectual Property Programme Manager Ahmed Abdel Latif.

Citing a December 2007 report by John Barton of Stanford Law School, written at the request of ICTSD, Latif noted that the most significant obstacle to technology transfer was trade distortions. Most basic technologies for wind, solar, and biofuel are off-patent, the study found, and enough competition remains between patented improvements on base technologies and between the different forms of alternative energy to keep prices down. This is quite different from medicine, where often only one drug exists for one disease.

Costanza Martinez, a senior policy officer in the Global Policy Unit at the World Conservation Union (IUCN) who spoke on her own behalf, noted that some forms of environmental know-how are more technology-intensive than others. For instance, methods for stopping trade in endangered species are less likely to carry patents than solutions for combating toxic waste, which is likely to require chemical or biotechnological solutions. The extent to which IP plays a role, said Martinez, increases with technological intensity and may be best assessed on a case-by-case basis.

IP: Creating Opportunities in Tech Transfer?

Martinez said IP could be “an opportunity for technology transfer, not an obstacle.” The general perception, she explained, is that IP is an indirect obstacle to technology transfer in MEAs as patents increase the price of technology. But it is difficult to prove that transfer is not happening out of a lack of means to pay, she said.

Dalindyebo Shabalala of the Center for International Environmental Law said that as transfer is generally from developed countries to developing countries, cost is “only a problem to the extent that developed countries have a problem with the price of the IP.”

And some developing countries are able either to purchase technology or offer large markets to incentivise companies to transfer it, noted Maria Soledad Iglesias-Vega from the WIPO IP and New Technology division. But for those that cannot, she added, cross-licensing of patents in a related field could be useful.

Also, added Martinez, private companies might have their own reasons for implementing ‘concessional or favourable terms’ in technology transfer usually mandated by environmental agreements – such as the desire to create long-term relationships with parallel companies in developing countries.

Iglesias-Vega said that low awareness of IP in many developing countries is problematic – in particular, lack of policies to protect research results, lack of clarification as to who within an institution owns the results of research, and lack of management capacity for IP, including the ability to draft a patent or a transfer agreement.

Without protection, incentives for research are low; countries seeing no return on investment slash research and investment funding, and intellectual talent leaves for nations where salaries and research funding are better, she explained. An IP “hub,” where researchers might share information and legal know-how, could reverse the brain drain and help create public awareness of IP utility, she said.

Juan Carlos Vasquez, legal affairs officer at the Legal Affairs and Trade Policy Unit of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), mentioned a success story in the form of a sui generis patent system for Guanaco farmers in Peru.

Guanaco is an animal native to South America prized for its wool. Farmers in Peru have decided to allow trade only with companies that mark Peru as the country of origin; thus, they are protected from attempts by outsiders to either breed or produce synthetically the same product, said Vasquez.

Thaddeus Burns, senior corporate IP counsel for General Electric Europe, said that his company’s extensive and growing research into ecological technology “is very much predicated on us assuming we can have proprietary rights, and that we can do market-based technology transfer.”

IP: One Step of Many

A recent technical study [pdf] prepared by the CBD secretariat noted a diversity of technology transfer scenarios made it impossible to draw overarching conclusions as to the role of IP in every situation.

Shabalala laid out what an effective technology transfer agreement would need to detail, including defining what environmentally sound technology is and what its transfer entails, defining a process for identifying needed technology, and creating a focal institution for the transfer process.

The determination of the patent status of the technology needed by a country is the only space where IP could become an issue in technology transfer, he added. The rest is financing, information exchange, skills, knowledge, and know-how.

Vladimir Hecl, a programme officer in the adaptation, technology and science programme of the United Nations Framework Convention on Climate Change (UNFCCC) suggested that the weakest link is lack of an actual mechanism for the transfer, including financing.

Burns said that barriers to transfer are more related to inadequate economic incentives (in the form of tax incentives or potential profits), inadequate infrastructure or manufacturing capacity to support a new technology, and inadequate IP protection and enforcement laws.

But “practical benefits,” said Lehmann, “depend on capacity to use information… mere access to information doesn’t guarantee access to tools to interpret or the means to turn information into products or processes.”

WIPO engages in both the publication and dissemination of patent information, via its PatentScope database, and in the enhanced utilisation, through training, seminars, and technical studies, of such information, said Meredith.

This matters for technology transfer, he continued, because it allows for the analysis of trends in patenting, as well as the companies involved, and allows those interested in technical transfer to evaluate the ownership of intellectual property, its geographical coverage, and its legal status in a particular territory.

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

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