Are Patent Exceptions Necessary For Climate Change Technology? Defining WIPO’s Role

Addressing the challenge of climate change will require technological solutions and the dissemination of those solutions to as many users as possible. A panel at the World Intellectual Property Organization Tuesday asked how intellectual property law might help or hinder that transfer, and what role the organisation might play in creating the right policy.

“If WIPO isn’t part of the solution, then what the hell is it for? It’s obviously the biggest challenge of our generation,” said an audience member who identified himself as from the mission of the United Kingdom speaking on his own behalf.

“The World Trade Organization members have not been moving fast enough on this issue. Discussions on technology transfer for clean technology have run aground due to issues with the wider package [in the Doha Round of trade talks],” added the official. “There’s an opportunity here for WIPO.”

Where exactly patent barriers to technology transfer can be found – if they exist – is not an easy question, said Ilian Iliev, CEO of CambridgeIP, which is in the process of developing a patent database with the Chatham House, a research and analysis organisation that also promotes debates on major issues of the day.

Chatham House, along with the International Centre for Trade and Sustainable Development (ICTSD), hosted the event on 24 March, alongside the 23-27 March WIPO Standing Committee on the Law of Patents.

“WIPO should be brought into discussion on areas of public policy, [and] should not be away from its stance as a UN agency,” panellist Cristiano Berbert of the Brazilian mission told the event. “The IP system should be more responsive to UN goals – and preservation of the environment and reversal of climate change are major UN goals.”

The World Trade Organization Doha Declaration on Public Health, which lays out IP guidelines specific to health goals, “demonstrates that IP and patent law will have to be involved in a more specialised way,” Berbert added.

“The way that technology evolves will lead us in the future to have specific sectors of IP law” tailored to certain kinds of technology, he said. The WTO Trade-Related Aspects of Intellectual Property Rights agreement does not allow for differentiation between fields of technology, but in so far as certain areas bear a higher degree of public interest than others, “we should be prepared to ask ourselves hard questions.”

“Do we need to be prepared to implement exceptions in these areas?” is one such question, Berbert added. As “it is not merely a challenge of consolidating a market in green technology, but a question of how to reverse climate change.”

But there is also the question of how to create appropriate incentives for the innovators of needed technology, argued Thaddeus Burns of General Electric, a multinational firm with a large research and development investment in green technology.

“There is no technology transfer without technology development,” he explained, and “big advances in technology requires big R&D investment.”

The private sector, said Burns, is responsible for 70 percent of research and development globally on these issues – spending between US$40 to $60 billion annually, as opposed to US$10 billion spent by the public sector. The UN Framework Convention on Climate Change has said that an additional $200 billion will be needed annually by 2030 to reduce emissions – that spending must be incentivised, he added.

How incentives work depend on who you want to motivate. Governments are best suited for long range research and development, and academia may be more motivated by prizes – but the private sector wants patents, said Burns.

“From our perspective at GE, IP is a necessary enabling force that allows us to justify these R&D investments,” he said, adding that successful technology transfer paradigms can be made involving licensing of technology and associated IP rights, joint development and joint commercialisation efforts, or outsourcing of the manufacture of components to end products.

Iliev said that the research done by Chatham House and CambridgeIP [Note: corrected to include Chatham House] showed growth in recent years in the number of alliances over patents on green technology, though these collaborations were mainly within richer Organisation for Economic Co-operation and Development (OECD) countries. Cooperation between OECD and non-OECD nations was lacking.

Of the recent trends in patents on green technology, Iliev said, the growth in importance of China is notable. Patent offices the US, Japan, and WIPO remain important, but China’s growth is significant as it is a development of the last 5 to 7 years.

Most recent green technology patents are related to wind energy, he added, as opposed to the five other areas examined by the research (concentrated solar thermal energy, biomass to electricity, clean coal, solar photovoltaics, and carbon capture and storage). Within wind energy patents, most are on three core spaces – generators, drive train, and the blades/wings – he said, though there is increasing activity in software and control systems for the windmills. GE, Burns told Intellectual Property Watch, is working on the implementation such a grid in the United States.

Also notable, said Iliev, is the fact that three companies dominate the patent field on wind technology.

Ultimately, Burns cautioned that “being too passionate could lead to unwise decisions” and we “need logical decisions based on sound evidence.” The IP system is, he said “an enabling factor” for innovation.

Berbert agreed that climate change is an area that requires a massive amount of investment, but noted it is also “an area where the challenge before us is so great, we have to think about what kind of specific response patent law can provide us.”