Patent law has a dirty history. A legal mechanism refined in the industrial revolution, patent law has sought to encourage manufacturing and industry ââ¬â the ââ¬ËProgress of Science and the Useful Artsââ¬â¢. Patent law has provided incentives for research and development for a wide range of polluting technologies, such as oil, coal, gas.
The worldââ¬â¢s largest oilfield service providers have built upon a large portfolio of patents to protect their research and development.àBaker Hughes obtained 138 patents in 2012 and 368 patents in 2013. Schlumbergerââ¬â¢s patents rose to 588 in 2013 from 235 in 2012. Halliburtonââ¬â¢s patents rose to 301 in 2013.
Halliburton was awarded more than $35 million in damages after winning a federal trial in Dallas in February 2012 against Weatherford International Ltd. over a patented tool used in well bores.
The major fossil fuel companies – Chevron, ExxonMobil, Shell, BP and ConocoPhilips ââ¬â have also built large portfolios of intellectual property, relying upon patent law, trade mark law, and trade secrets.
There have also been efforts to patent new techniques and strategies in respect of ââ¬Ëfrackingââ¬â¢ ââ¬â hydraulic fracturing. Daniel Cahoy and his colleagues argue that Fracking Patents have emerged as a means of Information Containment.ÃÂ
Increasingly, environmental groups and climate activists have challenged investments in fossil fuels.
Bill McKibbin of 350.org has emphasized that oil, coal, and gas companies are radicals because ââ¬Ëtheyââ¬â¢re willing to alter the chemical composition of the atmosphere to make money.ââ¬â¢ He maintained that such companies should lose their social license and respectability: ââ¬ËIf it is wrong to wreck the climate, then it is wrong to profit from that wreckageââ¬â¢.
Accordingly, 350.org has organised a fossil fuel divestment movement. The organisation has encouraged university and educational institutions to divest themselves of fossil fuel stocks. Cities such as Portland, Seattle, and San Francisco have pushed ahead with fossil fuel divestment policies in relation to city pension funds. Superannuation funds and sovereign funds have been encouraged to engage socially responsible investment.
It is only a matter of time before environmental and climate activists challenge the validity of fossil fuel investments in respect of intellectual property.
Recently, there has been much debate about the limits of patentable subject matter in the courts.àThe Supreme Court of the United States has sought to narrow and limit the boundaries of patentable subject matter in a trilogy of cases ââ¬â Bilski v. Kappos;àMayo v. Prometheus;àand Association of Molecular Pathologists v. Myriad Genetics.
There is a growing debate whether there should be limits in respect of patentability in respect of polluting technologies.àArticle 27 (2) of the TRIPS Agreement 1994 recognises that ââ¬Ëmembers may exclude from àpatentability inventionsââ¬Â¦ [in order] to avoid serious prejudice to the environmentââ¬â¢.
Professor Estelle Derclaye from the University of Nottingham has argued that ââ¬Ëpatent offices could either not grant patents for any invention which emits CO2 or make a cost-benefit analysis in terms of the value of the invention for society and the levels of CO2àemitted.ââ¬â¢Ã Examining European law, she suggests: ââ¬ËApplying these principles to global warming, it could mean that the cost-benefit analysis test could be used only if there is evidence that a specific invention causes actual damage or disadvantage to the environment.ââ¬â¢
In the past, there have been civil society groups and activist movements which have sought to challenge the patentability of controversial subject matter. Thus, there has been a concerted push by the free software movement to prohibit patents in respect of software. There have been demands to abolish business method patents particularly in light of the Global Financial Crisis. Organic farmers, consumer rightsââ¬â¢ activists, and environmental groups have protested over the granting of patents in respect of genetically modified crops.
In the field of health, there has been concern in respect of the patent eligibility of methods of human treatment, genetic testing, and stem cells. Greenpeace has been particularly active in challenging patents in the field of biotechnology. There has been much concern about the problem of biopiracy ââ¬â particularly amongst developing countries and least developed countries. Futurists like the ETC Group have worried about the grant of patents in respect of emerging technologies ââ¬â such as nanotechnology, synthetic biology, and geo-engineering.
It is inevitable that environmental groups and climate activists will push for a ban on patents in respect of fossil fuels ââ¬â such as oil, gas, and coal. It is also likely that civil society groups will engage in patent-busting, and challenge the validity of individual patents held by fossil fuel companies.
There will also be a further push to reform the patent regime to encourage the development of clean technologies and renewable energy. Francis Gurry, the Director-General of the World Intellectual Property Organization, has commented:
Human activity, including decades of technological development, has damaged our planet. Wide-spread pollution and spiraling consumption of the worldââ¬â¢s mineral and biological reserves have put unprecedented stress on the environment. Climate change is one of the greatest threats ever faced by society: glaciers are disappearing; desertification is increasing; in Africa alone, between 75 and 250 million people will face increased water shortages by 2020.
Gurry has maintained: ââ¬ËAs human activity caused the problem, so too can human activity find the solutionsââ¬â¢. He has insisted: ââ¬ËGreen innovation ââ¬â the development and diffusion of technological means to tackle climate change ââ¬â is key to halting the depletion of the earthââ¬â¢s resources.ââ¬â¢
There is a need for patent law to become fossil fuel free, and support research and development in respect of clean energy.
* is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change.ÃÂ 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.