Though the current pandemic has led to record lows in greenhouse gas emissions, we have witnessed a global rise this year in the dramatic effects of climate change. From increased local flooding in the UK to a longer and more deadly wildfire season in California, we still need a fundamental adjustment to the way we live. This article explores the role that intellectual property rights could play in driving the pace of change.
What IP is relevant?
The intellectual property system is designed to stimulate and disseminate the new technologies that could mitigate damage to the climate. Patent protection in particular plays a crucial role in the development of climate solutions, and is often more heavily scrutinised than other IP rights. However, typically technologies attract a web of multiple IP protections and require a range of licensing arrangements in order to be effectively commercialised.
Trade secrets are fundamental to innovative companies, large or small, in all sectors. For companies without the resources for a large IP portfolio, trade secrets allow them to remain competitive.
Certification and collective marks are already proving popular with ethical consumers. Marks can be used to highlight products which emit high and low levels of carbon during production, or which have been produced locally and do not attract large carbon footprints.
Why are patents key?
The patenting system is well designed for encouraging development of advanced technologies.
To obtain patent protection for innovative works, inventors must satisfy that their creation is novel, involves a technological step forward in their field and has an industrial application. As part of the application, the inventor agrees to disclose their work publicly and they must be able to describe how a skilled reader would be able to carry out the invention in practice. This means that when the exclusive rights period expires, the information is disseminated across society and the technology can become more widely used.
The patent system is fundamentally underpinned by the idea of balancing interests: the private interests of those investing in and generating new technologies (through a period of exclusivity) against the broader societal interest in disseminating the knowledge. Environmental considerations are included in this balancing. National laws give patent offices the power to exclude technologies that would cause damage to the environment if commercially exploited, a key overlap between IP law and environmental policy.
Though it is likely that the patenting system will play a key role in encouraging the development of green technologies, it has also served as an aid to some of the worst offending industries. It has produced groundbreaking technology which has simultaneously advanced society and majorly contributed to the worsening of the greenhouse effect. The diffusion of energy technologies which fuelled the industrial revolution, agricultural equipment which cleared much of our rainforests, and new industrial chemicals which polluted our atmosphere, all evidences this. In order to reverse this impact, we require this same framework to produce the necessary green technologies.
Encouraging innovation, or barrier to dissemination?
It is commonly maintained that IP rights provide incentives to create and commercialise new inventions and are the driving force behind technological advancements. The exclusivity period afforded to rights holders enables them to commercialise the product and recoup the often costly investment of research and development. This is particularly the case with bio-pharmaceutical companies.
Yet in the case of green technologies, speed and flexibility are essential. The patent system, especially, is not built for speed: applications are published 18 months after filing, and granted patents expire after 20 years. This is a significant speed bump in the road of research, when time is often of the essence. In this regard we are starting to see policy makers push for IP reform in specific environmentally impactful sectors, with a particular emphasis on encouraging industry and national collaboration and sharing.
Drive for collaboration
Events like COP26 in Glasgow next year are an example of a modern push for collaboration in this field. COP26 will bring parties together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change, and will likely spell an increased global scrutiny on IP rights and on collaborative rights frameworks.
In order to alleviate the impact of modern society on the environment, global IP frameworks will be required to work collaboratively. Yet this will not come without challenges. For example, many patenting technologies in developing countries are already free of enforceable patent rights. Yet a lack of patenting restrictions alone doesn’t always result in equitable access to new technologies. The partnership or involvement of the inventors is also required. Valuable knowhow and background IP protections will simultaneously need to be shared in order for the collaboration to be effective. Events like COP26 are likely to encourage legislators to increase collaboration, to enable speedier diffusion of green technologies across the world.
Ultimately the commercial exploitation of intellectual property will play a defining role in the fight against climate change. We very much expect this focus on collaboration to be a key challenge for the legal profession in the next few years.
Alison Bryce, partner, Dentons UK & Middle East LLP
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