Green Innovations, Owned By Developed Countries, Tied Up In Patents, Expert Says

Climate change calls for new technologies to face its consequences, governments agree. But research and development efforts are mainly conducted by the private sector in developed countries and are patent-protected, which is doing little to diffuse the technologies in developing countries, said a lecturer in Geneva this week.

The Center for International Environment Studies of the Geneva-based Graduate Institute of International and Development Studies, as part of its Geneva Dialogues, presented a lecture on innovation and technology transfer of environmentally-sound technology (ESTs). The 9 October lecture was given by Prof. Carlos Correa, director of the Centre for Interdisciplinary Studies on Industrial Property at the Law Faculty of the University of Buenos Aires. Correa is also a special advisor on intellectual property and trade at the South Centre in Geneva.

A number of changes will have to be implemented by countries to face the challenge of climate challenge, he said. In particular, new innovations will be necessary to address the consequences of climate change, but those innovations have to be deployed and diffused, including in developing countries.

An asymmetry in the distribution of innovative capacities persists, he said, as countries in the Organisation for Economic Cooperation and Development (OECD, generally the biggest economies) account for 78 percent of global research and development (R&D) expenditures, Asia for 19 percent (China 11.8 percent), Latin America 2.4 percent, the Near and Middle East 1.2 percent, and Africa 0.7 percent, as shown by a 2010 study by Jacques Gaillard, senior scientist at the Institut de Recherche pour le Développement, in Paris.

In developing countries, governments are the main suppliers of funding, with R&D mainly focused on basic and applied research, he said. This situation is reversed in developed countries, he said.

According to studies, he said, R&D for mitigation and adaptation for ESTs represents less than 4 percent of global R&D. Over 60 percent of this R&D is provided by the private sector.

Citing a joint study by the European Patent Office, United Nations Environment Programme, and International Centre for Trade and Sustainable Development, he said companies in Japan, the United States, Germany, Korea, France and the United Kingdom hold around 80 percent of patents on solar photovoltaic systems, geothermal, wind and carbon capture, most of which owned by private multinational corporations.

Few Patents on Core Technologies, But Patent Thickets in All Areas

Many patents, he said, just cover minor developments. Part of the strategy of companies is to develop what are called patent thickets, he said. Companies file a high number of patents around one particular technology to prevent competitors from entering the field, he added. There are very few patents on core technologies, he said.

There is a proliferation of patents in ESTs with about 400,000 patent documents on solar photovoltaic, geothermal, wind and carbon capture, he said, adding that this proliferation does not show real value for innovation.

That phenomenon is not only specific to ESTs, he said, citing as an example the 30,000 patents belonging to telecommunications company Nokia. The 17,000 Motorola patents were the reason Google bought the company’s mobile branch, he said, to acquire the patent thicket as they grew tired of litigation. The same happens in the pharmaceutical industry, he said, citing Ritonavir, an HIV drug on which 800 patents have been filed to protect different aspects of the drug and its method of use. The World Intellectual Property Organization issued a patent landscape report on Ritonavir in 2011.

Although patents have to prove novelty, an inventive step, and industrial applicability, some national patent offices apply those criteria in a very lax manner, he said.

Very few ESTs patents are filed in Africa, according to an EPO/UNEP study, he said. The lack of manufacturing capacity representing no threat to technology owners, and little risk of creating competition, might explain the low level of ESTs patents filed in the region, Correa said.

However, patents granted elsewhere, like India and China, create barriers for access to low-cost equipment and technologies in Africa, he said, explaining that Chinese or Indian firms which might have the ability to produce the equipment at a lower prices might not be able to do it because the patent monopoly prevents competition that would lower the prices.

Transfer of Technology, Know-How Key

Some technologies relevant for climate change are currently in the public domain, according to Correa, but the problem for developing countries resides in the fact that they need technical assistance to access those technologies. Absorption of those technologies requires capacity and financing towards capacity-building activities, he said.

An important distinction has to be made between the transfer of knowledge and the sale of equipment, he said. Some developed countries have argued, he said, that selling equipment to developing countries is a means to transfer technology.

Most technologies are in the hands of few companies, which are reluctant to transfer their technology, so as not to create their own competitors, rebuked by what Correa called the “South Korea syndrome.” Companies are thus reluctant to transfer the most efficient technologies. Developing countries have to resort to technologies from second- or third-tier companies, at high cost, for sometimes untested equipment.

Licensing agreements also include restrictive practices, such as no exports, or grant-back provisions, which force the licensee to transfer back technology to the licensor in cases where the licensee has improved the technology, he said. He cited firms from India, Brazil, China, Korea and Mexico unable to gain access to ozone-friendly technology on affordable terms.

During the United Nation Framework Convention on Climate Change (UNFCCC) negotiations, the G77 and China group, representing developing countries, asked that climate-friendly technology be excluded from patenting, and countries such as China, Brazil and India asked that new green technologies be subject to compulsory licensing, he said.

He also noted that the United States has granted the most compulsory licences (which allow production of patented products without the patent-holders’ approval) in the world, in general from European companies. Thousands of patents have been subject to compulsory licences in the US, he said.

US Economists Challenge Patent System

Correa said that a growing number of economists in the United States are saying that the patent system does not provide the right incentive for innovation. He cited Gary Becker, a professor of economics and sociology at the University of Chicago, calling for a reduction in the term of patent protection from 20 to 10 years. Becker published a paper on Reforming the Patent System in July 2013.

He also cited a publication by Michele Boldrin and David Levine, Chapter 8, which reflects on the role of monopoly on innovation. According to Correa, a number of US economists think that most industries could get along fine without patent protection.