Last month IBM, Sony, Pitney Bowes and Nokia started the Eco-Patent Commons, a new initiative to share patented technology that protects the environment.  Each company has donated at least one patent to the Commons, which is administered by the World Business Council for Sustainable Development (WBCSD), a Geneva-based organization that promotes sustainability in business.  Companies choose which of their patents to contribute, and the Commons selects for inclusion those patents that provide a direct or indirect environmental benefit.  To be selected, the patents must also relate to a technology field on the Eco-Patent Commons Classification List, which the WBCSD has selected from the International Patent Classifications.  As of now, the Commons has 31 patents, the vast majority of which were donated by IBM. 

The patents are identified on a searchable web site hosted by the WBCSD, and the technology is available to anyone, including both members (those companies that have contributed patents) and non-members.  The idea is to allow easy access to environmentally-friendly innovation so that anyone well positioned to implement the technology can do so.   One major advantage of the Commons is the cross-industry nature of the patent pool.  While cross-licenses within industries are common, they are harder to come by between different industries, and the diversity of the pool facilitates cross-industry use of the technology.

Members (known as “pledgers”) sign a nonassert pledge promising not to enforce the donated patents against those who use the patented technology to achieve an environmentally beneficial result (known as “implementers”).  However, the donated patents technically are not in the public domain because the Commons allows pledgers to retain a defensive termination option.  That is, the pledger may terminate its promise not to sue as to implementers who assert their own patents against the pledger. 

At this point the Commons rules get a bit complicated:  the power of termination varies depending on whether or not the implementer asserting its patent against the pledger is another pledger.  A pledger may terminate its nonassert against another pledger enforcing an unpledged patent only if the unpledged patent has a classification on the Commons Classification List and the accused products provide an environmental benefit.  That is, one pledger may sue another pledger for infringement of a patent outside the field of the Commons without losing its rights within the Commons field.   A pledger may terminate its nonassert against a non-pledger who asserts any patent against the pledger.  

There are more posts to come on the Eco-Patent Commons.  Subsequent posts will discuss some of the patents available through the Commons. 

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