By Kaitlin Mara
The World Intellectual Property Organization (WIPO) has produced an informal discussion paper that could represent a step toward placing it in the role of being the authoritative technical body on global IP and climate change policy. The paper was disseminated widely among other UN offices, and appears to represent early thinking on this complex issue.

Climate change, the paper says, “presents a vast, multifaceted challenge for the international community” and an “informed, judicious approach” to IP will be a key part of any comprehensive response to the problem. However, the 42-page paper adds, it will be only one element, and is unlikely to be decisive.

A copy of the WIPO paper, labelled “informal consultation draft only,” may be accessed here by Intellectual Property Watch subscribers.

A 7-page summary is available here.

[Editor's note: WIPO has clarified that this document is not confidential and is not a WIPO strategy, as originally stated in this story.]

WIPO Director General Francis Gurry, who took office on 1 October, has set a goal to “strategically realign” the organisation, mentioning in a recent interview with Intellectual Property Watch [available here] that he plans to increase the organisation’s global relevance by increasing its involvement in key public policy issues of the day, notably climate change. Gurry’s view was that technology is key to addressing problems. That this document has been written shows that initial steps toward that goal are already being taken.

Intellectual property is “relevant to climate change to the extent that creation and dissemination of technology is relevant,” the WIPO paper explains, noting that the problem of global warming was as much caused by technology as it will need technology to solve it.

However, it continues, it is “overdue” for the IP system to be examined in terms of how it can contribute to the mitigation of climate change and to the adaptations needed to cope with damage that has already been done. It is already clear that patents related to climate change are increasing, as roughly demonstrated by the upswing in applications to the WIPO Patent Cooperation Treaty, an international patent application system, over the past 10 years referring to climate change, the Kyoto Protocol or to greenhouse gases. A graph on page 12 of the report depicts this upswing.

IP issues relevant to climate change include questions as to what kind of subject matter can be patented, how patents can be used and regulated, and whether there should be a special treatments of patents on climate change-related innovations, for example, special licensing for humanitarian concerns, or the formation of patent pools.

More broadly, IP systems dictate what information remains undisclosed or a trade secret and has a role in the protection of traditional knowledge, trademarks and geographical indications, and in the suppression of unfair competition, including “greenwashing,” a misleading projection of environmental friendliness. The transparency created by the patent system can help in tracking key innovations, avoiding duplicative research and helping to organise agreements for technical cooperation.

As far as getting technology in the hands of developing nations, the paper notes that the “simple existence of a patent on a particular technology is not a barrier in itself to transfer of technology; nor does it guarantee that the technology will be fully exploited in all possibly beneficial ways.” In fact, it continues, “the absence of an enforceable patent right in a certain country does not in itself provide any guarantee of technology transfer.”

It adds that most technologies are “already free of enforceable patent rights in the majority of developing countries” though this does not guarantee technology transfer, which usually also requires a transfer of skills, know-how or background technology and infrastructure.

Whether IP helps or harms the process of mitigating climate change is, the paper says, “up to us”: the IP system was designed to both spur innovation and “build structures to transfer the technology” and can do so if used strategically rather than reactively.

The paper is “a draft prepared for informal consultations, with a view to clarifying the intellectual property issues arising from the global challenge of climate change,” it says. “It does not attempt to advocate or advance any position, but aims only to capture some current issues in an accessible format.”

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