Daintree Networks (Daintree) is a Silicon Valley smart lighting company that provides wireless lighting controls solutions.

Daintree owns U.S. Patent Application Publication No. 2012/0112654 (‘654 Application), entitled “Wireless adaptation of lighting power supply” and directed to a wireless adapter device and method for wirelessly controlling a power supply device.

The ‘654 Application describes a lighting system (100) controlled by a wireless controller (108) and wireless adapters (120).  The system includes lighting power supplies, or LPS (110) connected to a wall switch (106), which provides a connection to the power source (102).

Figure 2 of the ‘654 Application shows one of the wireless adapters (120) and a lighting power supply (110) in more detail.  The wireless adapter (102) includes a wireless communication device, such as a transceiver (122), that receives transmissions from the wireless controller (108).  The transmissions include control signals for the lighting power device (110), and those signals are output to a processing device (124) in the adapter (120).

The adapter processing device (124) generates the control commands from the control signals and outputs those commands to the adapter serial interface (126).  The wireless adapter (120) also includes an adapter power circuit (128) that receives regulated DC power from the power supply device (110) via a conductor (129).

The lighting power supply (110) includes a power subsystem (112) that receives AC power input and generates a regulated power supply signal for a power supply processing device (114) and a power supply for a lighting load (118).  The power supply processing device (114) communicates with a lighting power supply serial interface (116), which is connected to the adapter serial interface (126) via a conductor (132). 

In this way, the power supply processing device (114) receives the control commands from the wirelss adapter (120) so the power supply processing device (114) can control power provided to the lighting load (118) in a manner specified by the control commands.

According to the ‘654 Application, the serial data communications links eliminate the need for additional specialized circuitry within the wireless adapter to generate specific control signals for the lighting power supply.  The system also leverages off existing power and conditioning circuitry in the device being controlled, thereby reducing fabrication costs.

Other Daintree patents and published applications include U.S. Patent Nos. 7,660,892, 7,792,956 and 7,962,606, all filed off the same provisional application and entitled “Network analysis system and method” and U.S. Patent Application Publication No. 2011/0172844, entitled “Wireless system commissioning.”   According to Cleantech PatentEdgeâ„¢, Daintree owns at least two international patent applications as well.

Some major lighting and electronics companies have taken notice of Daintree’s technology.  This Greentech Media piece reports that Philips is working with Daintree on a commercial-scale rollout of building lighting systems.

As readers of this blog know, green patent activity continues at a record pace.  Accordingly, Cleantech companies of all sizes need to stay aware of general trends in patent litigation, as the increasing number of green patents in circulation concomitantly increases the likelihood of litigation either now or in the future.

In a ruling whose implications are still unclear for patent litigation in general, Judge Posner of the Seventh Circuit Court of Appeals, sitting by designation on a very high-profile patent case involving Apple and Motorola in Chicago, completely dismissed the claims of each party with prejudice. 

In effect, the Judge found that Apple, as the party filing the case and with the burden of proving damages or a right to injunctive relief, had irrevocably failed in that effort. And because there was no remedy available to Apple, the Judge threw the entire case out and dismissed the action in total.

This decision, coupled with the increased rigor being applied by both District Courts and the Federal Circuit with respect to analyzing patentee damages claims, promises to impact both current and future patent litigations involving Cleantech companies.

While it is unclear at this point how much of an impact Judge Posner’s reasoning will have on other judges, or even whether the Federal Circuit will sign off on it after the likely appeal, it is not too early to start thinking about how current and prospective Cleantech patent litigants should react and proceed.

On the patentee side, this decision, if accepted by the Federal Circuit and other judges – together with the recent spate of other Federal Circuit decisions calling for patent damages to be based on sound economic principles and evidence – simply makes it harder to meet the burden of proof on damages. 

Judge Posner’s earlier orders, whereby he threw out the expert opinions on damages and canceled the trial just days before it was about to begin, contain almost-unprecedented hurdles for patentees to jump through in order to substantiate their damages claims. Accordingly, patentees will need to both budget more money to pay damages experts and be more realistic about going after damages that are provable.

For Cleantech companies currently involved in patent litigation as patentees, there should be an immediate expectation that the defense will undertake serious challenges to the asserted damages model. On that front, patentees may need to be flexible regarding their valuation of the case, and be willing to invest additional resources to buttress their damages claims. 

Future Cleantech patentee litigants will need to invest in a pre-suit damages analysis, and be prepared to face early challenges to the asserted damages model.  While not ideal, from an expense and risk standpoint, more Cleantech patentees will also need to consider moving for preliminary injunctions, particularly in competitor cases.

The defense perspective takes the above considerations and flips them. Cleantech companies currently defending themselves against allegations of patent infringement should immediately focus on the plaintiff’s damages model, and blast away at any infirmities with renewed vigor.

For example, if the plaintiff is acting wishy-washy in terms of even disclosing what its model is for damages, the court should immediately be made aware of this decision, together with a request for immediate disclosure of the damages theory being asserted.  

Likewise, defense counsel should consider pushing early in the case, particularly where no preliminary injunction is being sought, for a patentee disclosure of its preliminary damages contentions.

Needless to say, the usual attacks on the damages opinions of the experts employed by the plaintiff should be pursued, via Daubert motion, summary judgment, or motion in limine as appropriate. 

Meanwhile, potential defendants, including those engaged in license discussions with patentees, should highlight the difficulties and expense that patentees will encounter in proving their damages during litigation, and use that prospective litigation expense as a means of reducing the license cost if possible.

In sum, Judge Posner’s order serves as a good reminder of the centrality of damages to patent litigation. 

Cleantech companies, whether they be patent owners or just likely targets for infringement claims, need to be aware of the current legal landscape regarding patent damages.  Armed with this knowledge, they can be more effective litigants, and even if not in litigation, be better prepared to evaluate the potential value of their patent portfolio, or their infringement exposure vis-a-vis other patentees.

Of course, this area of the law has been action-packed recently, so there should be no surprise if additional earthquakes along the lines of Judge Posner’s recent handling of the Apple v. Motorola case shake the patent litigation landscape even further.

Gaston Kroub is a partner in the New York office of Locke Lord Bissell & Liddell LLP.  Gaston serves as the co-chair of the Greentech Committee of the NYSBA’s IP Section and has been accredited as a LEED Green Associate.  Gaston is a registered patent attorney whose practice focuses on intellectual property litigation and counseling.

 

As the number of green technology bankruptcies continues to rise, an important consideration for these companies, their business partners, and their creditors is the treatment of IP rights in bankruptcy. 

For example, with companies engaged in new research and development, often through collaborations with other companies, how does the bankruptcy process effect the estate’s IP rights?  And how might the bankruptcy effect the rights of its licensees and development partners? 

The topic recently came to mind, with reports regarding the bankruptcy of Konarka Technologies, Inc. (“Konarka”).

I.  The Konarka Bankruptcy

Konarka, which declared bankruptcy in June, was a pioneer in the area of thin-film organic photovoltaic materials, which might be used in any number of ways, including for clothes or bags, textiles for curtains, and even building materials. 

Konarka’s technology web page explains its technology as follows:

[a]t the heart of Konarka’s technology is a photo-reactive polymer material invented by Konarka co-founder and Nobel Prize winner, Dr. Alan Heeger.  This proprietary material can be printed or coated inexpensively onto flexible substrates using roll-to-roll manufacturing, similar to the way newspaper is printed on large rolls of paper.

With respect to its bankruptcy, Konarka’s press release noted the company’s assets include a lot of IP in addition to its manufacturing facility:

Among the Company’s assets are over hundreds of owned and licensed patents and patent applications in the field of solar energy and a state-of-the-art manufacturing plant in New Bedford, Massachusetts.

Press releases and articles suggest that Konarka made a serious and continued effort to develop and commercialize its innovative materials. 

For example, Konarka had taken exclusive licenses on IP concerning photovoltaic applications and photoactive polymers from (respectively) DuPont Displays (in 2007) and Université Laval (in 2008). 

Further, Konarka’s polymer-based, organic photovoltaic (OPV) technology had been incorporated into a number of products, including solar energy bags (with Neuber’s Energy), curtain walls (with Arch Aluminum & Glass), as well as roofs, skylights, and facades (with ThyssenKrupp Steel Europe).

II.  Protection for IP Licensees

Normally, bankruptcy raises red flags for any company that’s in business with the company seeking bankruptcy protection. 

Generally speaking, a bankruptcy trustee has the right to accept (and thereby assume) or terminate (and thereby reject) the company’s executory contracts.  An executory contract is a contract that has on-going performance obligations, such as a business lease, a service contract,  equipment leases, development contracts, and intellectual property licenses. 

So while the other party has to keep performing, the bankruptcy trustee has the option of terminating an agreement that might be very important to your company’s well-being.  (And if the trustee does terminate, the other party is left with an unsecured bankruptcy claim  for breach of contract, which is likely a poor alternative for a material lease, equipment rental, license, or some other right.)

Fortunately, there is some measure of relief for IP licensees.  In a 1985 decision called Lubrizol Enterprises  v. Richmond Metal Finishers, the Fourth Circuit Court of Appeals confirmed that non-exclusive licenses are executory contracts, which a bankruptcy trustee may reject.   

The Fourth Circuit also held that the former licensee didn’t have any right to seek specific performance under the license. 

In response to the Lubrizol decision, Congress adopted Section 365(n) of the Bankruptcy Act, which provides that a licensee may elect:

(A)   to treat such contract as terminated by such rejection if such rejection by the trustee amounts to such a breach as would entitle the licensee to treat such contract as terminated by virtue of its own terms, applicable nonbankruptcy law, or an agreement made by the licensee with another entity; or

(B)   to retain its rights (including a right to enforce any exclusivity provision of such contract, but excluding any other right under applicable nonbankruptcy law to specific performance of such contract) under such contract and under any agreement supplementary to such contract, to such intellectual property (including any embodiment of such intellectual property to the extent protected by applicable nonbankruptcy law), as such rights existed immediately before the case commenced, for—

                                 i.      the duration of such contract; and

                                 ii.      any period for which such contract may be extended by the licensee as of right under applicable nonbankruptcy law.

Section 365(n) is quite remarkable, in that it is a significant exception from the bankruptcy trustee’s typical authority and is an important protection for IP licensees. 

There are some important caveats to consider, however, before relying on the protections of Section 365(n).  First, the Bankruptcy Act’s definition of “intellectual property” does not include trademarks (it does include trade secrets, patents, patent applications, plant variety, copyrights, and mask works). 

Second, Section 365(n) presumably does not prevent the termination of related rights or obligations, such as enforcement agreements, technology transfers, and service agreements. 

Third, Section 365(n) does not automatically apply to licenses by foreign licensors (even if it’s a license of U.S. patents). 

Fourth, and lastly, Section 365(n) does not say IP licenses aren’t terminable.  It instead says that, if the bankruptcy entity seeks to terminate the license, a licensee may elect to retain its rights.  And since this implicates an affirmative action, it’s important that a licensee monitor its licensor’s bankruptcy, to determine whether it becomes necessary to make an appearance to protect its rights.

With respect to Konarka, we’ll continue to monitor the bankruptcy proceeding and report back here, as the bankruptcy plan is published and we learn whether and how Konarka plans to dispose of its substantial patent portfolio (and whether licensees step in to preserve any rights).

Adrian Mollo is a Partner in the Washington office of McKenna Long & Aldridge.  Mr. Mollo’s practice focuses on patent licensing, strategic patent planning, intellectual property due diligence, related corporate counseling, and intellectual property litigation.

A previous post discussed Mitsubishi’s patent infringement action against GE in which the Japanese conglomerate fought back against multiple infringement suits (see, e.g., here and here) brought against it by GE.

Mitsubishi’s Complaint, filed in the Middle District of Florida, accused GE of infringing U.S. Patent No. 7,452,185, entitled “Blade-pitch-angle control device and wind power generator” (‘185 Patent).

Earlier this month, GE emerged victorious as the court granted GE’s motion for summary judgment on non-infringement of the ‘185 Patent.

In the suit, Mitsubishi alleged that GE’s wind turbines containing its Advanced Controls and Model-Based Controls (MBC) systems infringed independent claims 1 and 5 of the ‘185 Patent. 

Each of the claims recited a blade-pitch-angle control device comprising a memory device, an azimuth-angle detecting device, a parameter-detecting device, a command-value receiving device, and a pitch-angle-control command-value generating device. 

The decision turned on the interpretation of a key claim element reciting the functionality of the control device’s command-value receiving device:

a command value receiving device that receives the pitch-angle command values for each of the blades from the memory device, the pitch-angle command values being selected on the basis of the azimuth angle of each blade detected by the azimuth-angle detecting device and the predetermined parameters detected by the parameter-detecting device

Mitsubishi identified two GE pitch values that it alleged satisfied the limitations of the claims – the “Aerobalance” value and the “Lower Pitch Limit.” 

GE countered that its turbines do not infringe claims 1 or 5 of the ‘985 Patent because the pitch-angle control values in Advanced Controls and MBC are calculated rather than received and selected from a memory device.

In particular, with respect to the Aerobalance value, GE asserted that the pitch offet values are not selected on the basis of azimuth angle and predetermined parameters.  Rather, GE said they are stored in memory for twenty minutes and continuously applied to a specific blade, if needed, regardless of the blade’s azimuth angle.

The court agreed with GE on the Aerobalance value, relying upon Mitsubishi’s expert testimony:

Dr. Van Schoor [Mitsubishi’s expert] acknowledged in his deposition that the AeroBalance value is applied for twenty minutes to a blade – as the blade rotates around and around – and is used regardless of that blade’s azimuth angle.  Thus, it cannot be said that the AeroBalance value is selected on the basis of azimuth angle as required by the claim limitation.

As to the Lower Pitch Limit - a value below which the pitch angles are not set - the court found that, though azimuth angle is used to calculate a command value for pitch angle, that is not sufficient to meet the claim limitation at issue:

The use of azimuth angle in calculating an individual pitch-angle command value that is then compared to the Lower Pitch Limit – followed by selection of the Lower Pitch Limit – does not amount to selecting a pitch-angle command value based on azimuth angle.  The Lower Pitch Limit is chosen over the other, calculated pitch-angle command value – if at all – based on a numerical comparison between the two, not based on a blade’s position….The fact that azimuth angle might be an input into the calculation of the comparator pitch-angle command values does not satisify the “selected on the basis of” limitation.

This is the second recent federal court victory for GE over Mitsubishi.  In March a Texas jury found that Mitsubishi infringed GE’s U.S. Patent No. 7,629,705 and awarded GE $170 million.

Blue Sunny Skies and Sun Energy Partners f/k/a McConnell Energy Solutions and d/b/a SolarDock is a Delaware company that makes solar module mounting systems.

SolarDock owns U.S. Patent No. 6,968,654, entitled “Solar panel mounting structure, solar panel system, and methods of making and installing thereof” (‘654 Patent).

In a recent complaint filed in federal court in Delaware, SolarDock accused, inter alia, PV Thermal Solar, MJM Fabrications (MJM) and Dave Lewenz (a former independent contractor for SolarDock) of infringing the ‘654 Patent.

According to SolarDock’s Complaint, Michael Moulder, a co-inventor named on the ‘654 Patent, assigned the patent to McConnell Energy Solutions (which subsequently assigned it to Blue Sunny Skies) and later formed MJM, which is making infringing SolarDock systems.

SolarDock also alleges that PV Thermal Solar, co-founded by Lewenz and Moulder, is selling infringing solar racking systems:

Further upon information and belief, PV, through its division SR2, used SOLARDOCK’S proprietary and confidential information to create racking systems that compete directly with the SolarDock system and fall within the scope of one or more claims of the ‘654 patent.  Such racking systems include SR2’s SolarRac2 system.

The ‘654 Patent is directed to a solar panel unit (100) comprising a mounting structure (10) and a solar panel (P) supported by the mounting structure. 

The frame (12) of the mounting structure (10) includes a front wall (20), a bottom wall (22), and a back wall (24) forming an elongated chamber (26).  First and second panel supports (30, 32) support the panel (P).

The front wall (20) of the mounting structure (10) is arranged to face a direction of the predominant supply of sunlight, and the inclination angle (α) of the mounting structure (10) can be preselected according to the latitude of the installation site.

According to the ‘654 Patent, the panel unit’s simple design confers several advantages.  First, it makes the unit easy and inexpensive to manufacture.  In addition, installation is quick and easy and requires minimal skill.  Finally, the mounting structure is very light in weight and can be transported easily by a single technician.

This case is another recent example of solar patent litigation moving downstream to disputes over mounting systems.  A major patent war between Zep Solar and Westinghouse Solar (formerly Akeena Solar) recently settled.

Lighting Science Group (LSG) is a Florida-based designer and manufacturer of LED lighting products, including retrofit lamps, luminaires, and lighting solutions for architectural and design projects.

LSG has been marketing its products under the brand name Lighting Science for about eight years, and LSG owns three trademark and service mark registrations for the mark LIGHTING SCIENCE.

U.S. Registration Nos. 3,121,689 and 3,948,258 are for various LED bulbs, lighting systems, lamps, and light fixtures in Class 11, and U.S. Registration No. 3,929,071 is for installation, manufacturing, and design and development services relating to LED lighting in Classes 37, 40 and 42, respectively (collectively, LIGHTING SCIENCE Marks).

Recently, LSG sued Electronic Lighting Science (ELS) for infringement of the LIGHTING SCIENCE marks.  The LSG Complaint, filed in federal court in Los Angeles, alleges that ELS’s use of the name “Electronic Lighting Science” and the phrase “Electronic Lighting Science LED Products” to sell LED lighting fixtures, bulbs and other products infringes the LIGHTING SCIENCE Marks.

LSG is seeking damages and injunctive relief.

Although there has been a ton of LED patent litigation, with new cases filed almost every month, there’s been relatively little activity in LED trademark enforcement (the Whelen case briefed here is the only one I can think of).  There may be more to come…

I will be speaking at the Seventh Annual New Energy Symposium next week in New York City.

Hosted by New Energy New York, the College of Nanoscale Science & Engineering (CNSE), and CNSE’s clean energy incubator, iCLEAN, the symposium will be held at the New York Academy of Sciences at 7 World Trade Center on July 18-19, 2012.

The first day of the symposium will feature an Investment Pitch Competition in which 15 emerging clean tech startups will present to a panel of VCs, angels, other clean tech investors.  Keynote speakers and moderated panels that day will discuss issues relating to clean tech startup financing.

On the second day, the Heslin Rothenberg law firm is sponsoring a morning program on green IP legal issues and commercialization strategies.

Michael Hervey, COO of the Long Island Power Authority, will give the keynote address.  Then Heslin Rothenberg Partner Victor Cardona will present a solar technology analysis based on data from the venerable Clean Energy Patent Growth Index.

Along with Janet Gongola, Patent Reform Coordinator for the U.S. Patent and Trademark Office (USPTO), and Nicholas Mesiti, a Partner at Heslin Rothenberg, I will be on a panel entitled “Strategies for Cleantech Companies Under the New America Invents Act.”

Ms. Gongola will discuss key changes to the patent law implemented by the America Invents Act (AIA), and Mr. Mesiti will focus on the patent litigation provisions of the AIA.

I will present on strategies for expediting green patent applications in the USPTO now that the Green Technology Pilot Program is closed, including ideas on how to leverage existing green fast track programs abroad and the Patent Prosecution Highway, as well as current USPTO initiatives and AIA prioritized examination.

A second panel, entitled “Importance of IP & Strategies for Commercialization,” includes Stephen Filler, Director of Corporate Development for Prism Solar Technologies; James Groelinger, Executive Director of the Clean Energy Alliance; Pradeep Haldar, Vice President for Clean Energy Programs at CNSE; and George Powch, CEO of Versatilis.

You can find more information about the conference and its participants here and registration info here.  The early bird registration deadline is July 16th.

Hope to see you there!

 

Ecofys is Dutch renewable energy and climate policy consultancy that has developed a Wave Rotor tidal energy device. 

IHC Merwede, a Dutch company that focuses on design and construction solutions for the maritime sector, recently acquired the Wave Rotor technology.

The Wave Rotor technology enables IHC Merwede to launch a fully integrated system to generate electricity using tidal energy.   The technology will be managed by a newly established company called IHC Tidal Energy.

In contrast to most tidal turbines, the Ecofys Wave Rotor is vertically oriented, allowing the device to convert power from tidal currents and wave motion directly into electricity.

Ecofys owned at least two international patent applications relating to its Wave Rotor technology:

• International Patent Publication No. WO 2010/011133, entitled “A Device for the Utilisation of Wave Energy and a Method” (‘133 Application); and
• International Patent Publication No. WO 2010/062170, entitled “An Apparatus for Harvesting Energy From a Body of Water and a Method” (‘170 Application)

The object of both applications is to provide an improved wave power device whose energy efficiency is increased considerably, thus reducing the costs of the energy.

The ‘133 Application is directed to a tidal device that marries two types of rotor blades. More particularly, the device includes a Darrieus rotor having at least two Darrieus rotor blades, and a Wells rotor having at least two Wells rotor blades, wherein the Darrieus rotor and the Wells rotor are rotatable about a common axis.

The device comprises three Darrieus rotor blades (101) and three Wells rotor blades (102). The Wells rotor blades are attached at their distal ends to a central axle (104), which is connected to a generator (105) for generating electricity.

According to the ‘133 Application, combining both Darrieus and Wells rotor blades achieves a higher conversion efficiency than than a wave power device having only Darrieus rotor blades or only Wells rotor blades.

The ‘170 Application describes a similar device having both Darrieus and Wells rotor blades.

The device (100) comprises three Darrieus rotor blades (101) hingeably connected near the distal ends of the Wells rotor blades (102). The proximal end of each Wells rotor blade connects to the central axis (104), which is connected with a generator (105) to generate electricity.

The Darrieus blades (101) are arranged in a longitudinal direction and are connected at second points by connecting arms (122) to a lower point on the central axis.

The second connections between the connecting arms and the central axis are rigid connections, and are preferably shorter than the Wells rotor blades that connect the first points of the Darrieus blades with the central axis.

According to the ‘170 Application, the device has an improved capability of handling varying loads because it is rigid to such an extent that the driving forces exerted on the Darrieus rotor blades are transferred to the central axis effectively, yet bending moments in the rotor blades are reduced, in particular near the transition of the Darrieus rotor blades to the connecting arms.

With the newly acquired technology, IHC Merwede will further secure its position as a major maritime sector player, particularly in the renewable market.

*Jeff Woodley is a contributor to Green Patent Blog.  Jeff is a summer associate at McKenna Long & Aldridge and is currently in his final year at the University of California, Los Angeles School of Law.  He received his undergraduate degree in Economics also from the University of California, Los Angeles.

The Rio+20 United Nations Conference on Sustainable Development featured a fractious debate over intellectual property and the environment. Not only was there heated debate about patent law, technology transfer, and sustainable development,[1] there was also a debate about sustainable public procurement, eco-labelling, accountable advertising, and greenwashing.

The United Nations Environment Programme (UNEP) and Sustainable Public Procurement

The United Nations Environment Programme (UNEP) has long been a champion of sustainable public procurement.

It defines the practice thus: ‘Sustainable public procurement is a tool which allows governments to leverage public spending (between 15 to 25 % of GDP) in order to promote the country’s social, environmental and economic policies.’[2]

The UNEP sought to facilitate consensus on the integration of sustainable development considerations in procurement at the Rio+20 summit.

UNEP also called for greater corporate reporting in respect of sustainability: ‘An estimated 25 per cent of the 20,000 companies tracked by Bloomberg are reporting their environmental, social and governance footprints – but 75 per cent are not.’[3]

Regional Eco-Labelling: The Nordic Council of Ministers and the Nordic Swan

The Nordic Council of Ministers promoted a 10-year framework programme for sustainable consumption and production (SCP) at the Rio+20 discussions[4] and held a side event on eco-labelling and sustainable public procurement on June 20.

The Nordic Council of Ministers championed the use of information and labelling: ‘Boosting green demand by promoting environmental information is a crucial tool towards more sustainable consumption and production.’[5]

The Council noted the example of the Nordic Swan, described by Magnus Boström and Mikael Klintman in their book, Eco-Standards, Product Labelling, and Green Consumerism, as the ‘world’s first multinational eco-label’.[6]

They elaborate: ‘The Swan is a government-run eco-label, although both producers’ organizations and SMOs (e.g. FoE and consumer organizations participate in the organizational arrangement and in the standards development’.[7]

The Nordic Eco-Label has been promoted in concert with the EU Eco-Label.[8]

The Nordic Council of Ministers has also sought to export know-how on ecolabelling to South American countries under the aegis of the UNEP.[9] The Council has held a workshop in the Southern Cone region comprising: Chile, Argentina, Brazil, Paraguay and Uruguay.

The Nordic Council of Ministers maintained: ‘A regional ecolabelling approach is a cost-effective way of addressing the well documented needs of making production and consumption patterns more sustainable.’[10]

In its view, a regional approach ‘enhances regional integration and cooperation within environmental, industrial and consumer policies’.[11] The Nordic Council of Ministers contended: ‘Linking ecolabelling closely with sustainable public procurement furthermore creates a stronger demand for ecolabelled products.’[12]

Accountable Advertising

There was also a significant discussion about corporate social responsibility, accountable advertising, and greenwashing at Rio+20.

One of the most striking contributions to the Rio+20 debate was by Pavan Sukhdev, the chief executive of the environmental consulting firm GIST Advisory, and the former head of the UNEP’s Green Economy initiative from 2008 to 2011.

He has recently established a new venture – called Corporation 2020.[13] Sukhdev argued: ‘For too long, companies have been able to hide their damaging activities through accounting tricks, tax loopholes, and unethical advertising.’[14]

Sukhdev called for four key reforms in the private sector – focused upon disclosing externalities; resource taxation; limiting leverage; and accountable advertising.

He complained that the Rio+20 The Future We Want lacked corporate responsibility reforms – ‘brown corporations cannot add up to a green economy’.[15]

In a piece for Nature, Sukhdev called for accountable advertising in the private sector – and an end to greenwashing. He further intimates that there should be legal reforms to protect consumers against misleading and deceptive advertising:

In the world of Corporation 2020, ‘selling good, not just good selling’ would become the norm rather than the exception . . . . Advertising would become accountable, and ethics in advertising would no longer be optional.[16]

He comments that ‘in the new age of online purchasing and social networking, a more transparent advertising system is a necessary part of the process.’ [17]

However, the manifesto does not indicate what legal regimes or reforms should be adopted to address the problem of greenwashing.

Greenwashing is a multi-dimensional problem. Policy solutions have ranged across a number of fields of regulation – including advertising law and regulation; consumer protection law; trade mark law; and Internet Domain Names.[18]

One wonders whether Sukhdev is calling for corporate law reform.

There has also been some discussion as to whether companies should be held liable for misleading and deceptive communications in social responsibility statements dealing with matters of sustainability.

Greenpeace

Greenpeace used the occasion of the Rio+20 summit to publish a sequel to its report at the 1992 Earth Summit on greenwashing. The new report was called Greenwash+20: How some Powerful Corporations are Standing in the Way of Sustainable Development.[19]

The civil society group argued: ‘What we show is that some large corporations, singly and as a group, while loudly touting their commitment to sustainability, continue to exert excessive negative influence on governments in debates and negotiations around sustainable development.'[20]

At the conclusion of the event, Greenpeace also complained that the summit itself was an exercise in greenwashing: ‘All we have witnessed is three days of empty rhetoric and greenwash from world leaders.'[21] The civil society group complained: ‘This Summit will go down in history as Greenwash+20.'[22]

Conclusion

The Rio+20 text – called the Future We Want – promotes sustainable consumption and production as a means of promoting sustainable development and the Green Economy.

Although it did not necessarily result in much in the way hard of commitments, the Rio+20 summit did feature debate over sustainable public procurement, regional eco-labelling, and accountable advertising.

A number of networks, alliances, ventures and partnerships have been established to support initiatives in this field.

It remains to be seen whether international environmental summits result in any hard obligations on corporate sustainability reporting, accountable advertising, and greenwashing.

It also remains to be seen whether the Rio+20 summit will be celebrated lauded as the Future We Want or decried as Greenwash+20. Perhaps, the legacy of the Rio+20 summit will be a more subtle one.

The initiatives in relation to sustainable public procurement, regional eco-labelling, and accountable advertising are indicative that Rio+20 will be a catalyst for incremental and networked changes in the Green Economy.

* is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change.  He is an associate professor at the ANU College of Law, an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA), and a director of the Australian Digital Alliance.

The recent Rio+20 summit has raised a number of difficult questions about law and technology:

• What is the relationship between intellectual property and the environment?
• What role does intellectual property play in sustainable development?
• Who will own and control the Green Economy?
• What is the best way to encourage the transfer of environmentally sound technologies?
• Should intellectual property provide incentives for fossil fuels?
• What are the respective roles of the public sector and the private sector in green innovation?
• How should biodiversity, traditional knowledge and Indigenous intellectual property be protected?

The Earth Summit held in Rio de Janeiro in 1992 resulted in a number of landmark agreements. The 1992 texts include the Rio Declaration on Environment and Development, Agenda 21, the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, and the Forest Principles. These agreements considered the relationship between intellectual property, sustainable development, and the environment.

The Rio+20 conference has focused on two central themes: “a green economy in the context of sustainable development and poverty eradication” and the “institutional framework for sustainable development”.

Chinese diplomat Sha Zukang, secretary-general for Rio+20, observed: “A critical issue is Intellectual Property Rights, for which I have always stressed the key is affordability. If technologies are not affordable, then all this pledge to international cooperation is just empty talk.”

There was much debate over intellectual property, development, and the Green Economy at the summit.

Intellectual property, technology transfer, and the Green Economy

1992’s Agenda 21 said “consideration must be given to the role of patent protection and intellectual property rights along with an examination of their impact on the access to and transfer of environmentally sound technology, in particular to developing countries”. Agenda 21 promoted technology transfer, and envisaged “a collaborative network of … international research centres on environmentally sound technology.”

Twenty years later, at Rio+20, there has been further debate over intellectual property, technology transfer and the environment.

One observer, IP Watch, noted: “… the developed and the developing world are divided on the mechanisms needed to make [innovation and green technology] happen on the ground … Intellectual property rights are a vital piece of this fractious debate.”

The World Intellectual Property Organization’s Rio+20 submission said: “The Intellectual Property system, and in particular patents, are fundamental in that they provide a stimulus for investment in innovation and contribute to a rapid – and global – diffusion of new technologies.”

China and the G77 called for “an International Mechanism” to facilitate “transfer of technology in sustainable development.” The International Centre for Trade and Sustainable Development (ICTSD) proposed a Global Green Innovation and Technology Partnership.

The early June draft of the Rio+20 text noted “that consideration must be given to the role of patent protection and intellectual property rights along with an examination of their impact on the access to and transfer of environmentally sound technology, in particular to developing countries”.

The United States, the European Union, Japan, Canada, Australia and Switzerland wanted to delete this paragraph. Such nations favoured strong protection of intellectual property rights in order to encourage private investment in the research and development of environmental technologies.

Martin Khor of the Third World Network noted that developed countries were hostile to obligations on technology transfer: “Wherever the words ‘technology transfer’ appear, there is an attempt to change it to voluntary transfer on mutually agreed terms and conditions”.

The United States, Canada, and Japan also opposed the establishment of a Technology Mechanism at Rio+20.

Intellectual property is a cipher in Rio+20 – a topic of “importance”, but not worthy of further textual elaboration.

The final Rio+20 text – entitled the Future We Want – merely affirms “the importance of technology transfer to developing countries” and recalls “the provisions on technology transfer, finance, access to information, and intellectual property rights as agreed in the Johannesburg Plan of Implementation”. The minimalist text on intellectual property in Rio+20 is terse compared to Agenda 21’s much more extensive provisions.

Rio+20 creates no new Technology Mechanism, like the UNFCCC Climate Technology Centre. It merely asks for countries to “strengthen international cooperation”. It invites governments “to create enabling frameworks that foster environmentally sound technology.”

It also recognises that “the private sector can contribute to the achievement of sustainable development, including through the important tool of public-private partnerships”.

There was a significant push to end subsidies for fossil fuels at Rio+20. However, intellectual property law continues to play a double role – providing incentives alike for clean, renewable energy; as well as dirty, polluting technologies in coal, oil, and gas.

Our common vision?

The Rio+20 text The Future We Want speaks of “our common vision” for sustainable development and the Green Economy. However, the topic of intellectual property and the environment at Rio+20 was the subject of division, confrontation, and ultimately a lack of consensus.

The minimalist, weak text on intellectual property, technology transfer, and the Green Economy retreats from the Earth Summit’s texts two decades ago. Instead, there is hortatory language about encouragement, acknowledgement, and reaffirmation.

There has been concern that such important issues have been glossed over at the summit. Perversely, the Future We Text subtracts from international law on intellectual property, the environment, and sustainable development. Little wonder some critics have dubbed the summit Rio-20.

Reflecting on the lack of real progress at Rio+20, Norwegian international leader and advocate of sustainable development Gro Harlem Brundtland observed that there were “complex reasons” why governments had failed to take the “common vision” further – including the power of corporations: “In our political system, corporations, businesses and people who have economic power influence political decision-makers – that’s a fact, and so it’s part of the analysis.”

Future international summits on the environment, biodiversity, and climate change have been left to reconcile such tensions over intellectual property and the global commons.

This post is adapted from an article previously published on The Conversation and re-published here with the kind permission of Matthew Rimmer.

* is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change.  He is an associate professor at the ANU College of Law, an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA), and a director of the Australian Digital Alliance.