Brazil is the First BRIC to Fall From the Anti-Green Patent Wall

 Last week we reported the launch of the Brazilian National Institute of Industrial Property’s (INPI) pilot program to accelerate green patent applications.

But there’s a lot more to this story than meets the eye.  Though INPI joins several other national intellectual property offices around the world in offering a green patent fast track, this is not simply another instance of such a program.

This is because, with respect to green patents, Brazil is not like any of the other countries that offer accelerated examination programs.

With the launch of this pilot program, Brazil becomes the first of any emerging market or developing country to signal anything remotely resembling a positive view of patents directed to green technologies and their role in combating climate change. 

Along with China and India, Brazil has been at the forefront of the G77 nations pushing to weaken or eliminate intellectual property rights in green technologies in the UN climate change treaty discussions over the last several years (see, e.g., my previous post here).

These countries have been arguing that IP rights act as a barrier to transfer and deployment of green technologies and have proposed a host of policy prescriptions to remove that perceived barrier. 

Those include compulsory licensing for such technologies, guaranteed access to green technologies on royalty-free terms, excluding green technologies from patent protection, and revoking existing patents on green technologies.

Consider these sentiments expressed by Haroldo de Oliviera Machado Filho, a senior climate change advisor to the Brazilian government, in 2009 in the run-up to the UN Copenhagen meeting (see articles here and here):

Leaders should consider the possibility of allowing “compulsory licensing” for green technologies.

Intellectual property systems are seen as “a significant barrier” in transferring technology from rich to poor nations.

“With [global warming mitigation] technologies there should be an understanding that patents must not be an obstacle for developing countries.”

But the launch of INPI’s green patent fast track last week obviously sends a different message and apparently signals a reversal in Brazil’s policy toward green patents. 

Consider this from Douglas Santos Alves, a researcher at INPI who participated in developing the pilot program:

“We will accelerate because we want clean technology to get to society soon…We cannot wait six years for an environmental solution to be applied in the market.”

Clearly, Brazil has reached an inflection point in its attitude toward green patents. 

So what happened in the last three years to cause this 180 degree turn? 

I don’t have a definitive answer, but there are some clues.

Brazil is a global leader in at least one green technology area:  biofuels.  The country has been making ethanol from sugar cane for years and has developed a sustainable market around it.

Thus, Brazil has some important domestic biofuels champions such as Cosan, a major ethanol producer.

This success has also attracted the attention and business of many American companies, from oil giants such as Shell to biofuels startups like Amyris and Solazyme.

All of these players need patent protection in Brazil and may have been turned off by the unduly long (5+ years) average application processing time in INPI.

This reversal by Brazil may represent a significant moment in green patent history.

I suspect it’s just a matter of time before other BRICs and developing countries that have been united against green patents break from the past and join Brazil in respecting and promoting them. 

China, in particular, with its strong solar industry, seems a likely candidate for the next BRIC to fall.

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.