Intellectual property rights are a key to innovation, the mitigation of climate change, an incentive to spur the economy and a creator of jobs, according to participants in several recent industry events and activities.

On the threshold of the United Nations Framework Convention on Climate Change (UNFCCC) conference in Copenhagen in December, intellectual property rights remain an important issue. Industry groups have launched a campaign with the message that IP rights – patents in particular – are essential to incentivise technological innovation to save the world. But others say patenting of environmental technologies could impact technology transfer to developing countries and the availability of those technologies (IPW, Environment, 16 September 2009).

Several industry events were held in the US and Europe over the past week. Meanwhile, at an informal UNFCCC negotiation in Bangkok this week, working groups are looking to draft a text on technology transfer to stop climate change.

On 23 September, the Coalition for Innovation, Employment and Development organised an event in Geneva about IP rights and climate change. The coalition is a lobbying group focused on IP issues and composed of the US Chamber of Commerce and other industry associations, companies and institutes.

Kenya is already feeling the effects of climate change, according to James Otieno-Odek, managing director of the Kenya Industrial Property Institute, and moderator of the event. “IP holds the key,” he said.

In the context of the United Nations climate change conference in December, the European Union is hoping for an ambitious international agreement on reducing greenhouse gas emissions, Christian Jerveland from the Copenhagen Economics, a free-market consultancy. But this means a massive need for clean technology and “we do not have the technology available today to meet such an ambitious target,” he said.

This surge in the need for green technology will create a lot of “high-knowledge intensity” jobs and a lack of “good regulation” could jeopardise the opportunity, according to Jerveland. IP rights provide clarity and safety and are necessary for EU firms to undertake R&D investments, he asserted.

Environmental innovation can only be disseminated if there is a receptive environment and the right incentives for technology transfer, said Lee Feldman, director of the National Peace Foundation. There are many obstacles to technology transfer, among them the uncertainty surrounding the costs and benefits, and the lack of financial requirements. IP rights do not constitute a major hindrance to technology transfer, Feldman said. Rather any impediment is attributable to small market size, lack of infrastructure, lack of scientists or researchers, or communications infrastructure. “Compulsory licences would not solve this,” he said.

Gregory Kalbaugh, director of the US-India Business Council, praised the value of incremental pharmaceutical innovation as opposed to radical innovation. Incremental innovation involves technical modifications of an existing product, process or system that would bring an improvement over that product.

Sixty percent of the World Health Organization essential drugs list is made up of incremental innovations, he said.

Section 3(d) of the Indian patent law, which provides exemption from patentability to prevent patent evergreening “is not good for anybody,” he said, adding that reforming the patent act could encourage India’s incremental pharmaceutical innovation.

Indian officials in Geneva have said that India aims to meet all its international obligations and at the same time safeguard national interests. The India Patent Act seeks to balance IP protection with public health, they say. Non-governmental groups and human rights advocates are strongly in support of this legislation preventing any extension of an existing patent, according to sources.

According to a report prepared for the coalition by White & Case LLP and DUA Consulting, section 3(d) of the Indian patent law is preventing the Indian population from benefiting from the vast majority of useful incremental pharmaceutical innovations. The report also claims that Indian pharmaceutical companies have filed hundreds of patent applications directed to incremental pharmaceutical innovations in other countries.

Intellectual Property Rights as a Trade Tool

On 30 September, during its Global Intellectual Property Center annual summit, the US Chamber of Commerce presented a report claiming that global “efforts to weaken” intellectual property rights, such as compulsory licensing, in the context of the ongoing climate change negotiations, could potentially lead to green job losses.

At the event, US Trade Representative Ron Kirk said that “intellectual property protection and enforcement not only ensure that the rewards of creativity and invention go to the inventor, they also guarantee America’s edge in the global market,” according to a release.

America’s prosperity depends on its exporting capabilities and its ability to tap new and emerging markets, Kirk said, as he advocated free and fair trade and added that the US was “working with its trading partners to ensure adequate and effective intellectual property safeguards wherever American goods and services are sold.” Kirk also confirmed that the US and key partners were working to “forge” an Anti-Counterfeiting Trade Agreement (ACTA) “by 2010.” The US is leading the ACTA negotiation with several key trading partners.

Kirk also said that five out-of-cycle Special 301 reviews announced in April were now starting. The Special 301 report is an annual US review of how the government and industry perceive trading partners to be protecting US IP rights.

Under international trade law, governments have the sovereign right to take measures in its public interest such as issuing compulsory licences for products, for public health reasons for example. Rights-holding industry groups and some developed-country governments have worked to put pressure on governments not to take these actions on exports from their companies.

The industry report states that compulsory licensing would impact five green technology sectors in the United States: solar, biofuels, wind, batteries and LED lighting. According to the US Chamber press release, the report also asks for a clearer legal definition of climate friendly technologies as, according to the report, the ambiguity of the term “suggests that compulsory licensing could be applied to any technology that in some way reduces waste or greenhouse gases.” Compulsory licensing also could hinder technology transfer by deterring companies from exporting to developing countries and forfeit their IP protection, it charged.

Also, the Chamber’s Global Intellectual Property Center joined forces with Business Europe and the International Intellectual Protection Forum of Japan to issue a joint resolution on 28 September about their concern “about proposals by certain emerging economies countries to weaken the protection of intellectual property rights to climate change-related technologies.”

The resolution also warned against the introduction of IP rights limitations, such as “mandatory” licensing for technology diffusion.