Book Review: Intellectual Property and Climate Change, Edited by Josh Sarnoff

ip-and-climate-change

Despite its title, this book is about much more than intellectual property and climate change.  While it does, of course, provide detailed treatments of IP and climate change law and policy, the topics covered in the new “Research Handbook on Intellectual Property and Climate Change” are diverse and far-ranging, even touching on food (for the body) and religion (food for the soul, for some).

Editor and contributor Joshua D. Sarnoff has organized the book into five general categories:  basic information on climate science and environmental and IP treaties and geopolitics; philosophical perspectives on IP and climate change including human rights, religion, and development; approaches to development and transfer of green technologies; specific IP doctrines; and contexts where climate change-IP considerations arise.

The first few chapters provide the reader with a solid introductory grounding in climate science, climate treaties, and IP treaties.

Then Carlos Correa gets into the developing countries’ perspective on IPR, reviewing familiar proposals such as compulsory licensing, excluding green technologies from patent protection, revoking patent rights in green technologies, and limiting terms of patents directed to green technologies.  Mostly non-starters, these policy tools have been detailed and advocated more forcefully elsewhere.  Nevertheless, their inclusion is essential for any compendium on IP and climate change.

Chapter 10 on developing country viewpoints stands out as providing particularly useful context.  Instead of simply saying the current state of affairs is inadequate and we need better technology transfer, Dalindyebo Shabalala lays out helpful and meaty (you can really sink your teeth into them!) definitions of technology transfer.  Those are followed by a useful review of IP and tech transfer developments in climate change treaty discussions over the years.

Sarnoff himself provides a taxonomy of choices for government funding of innovation and university research (Chapter 11) as well as a discussion on how the UNFCCC and other treaties relate to green patents in Chapter 16 on patents and climate change.

From there, the doctrinal IP section continues with a chapter on trade secrets and climate change (Chapter 17).  In it, Sharon K. Sandeen and David S. Levine propose changes to the law that would increase disclosure of trade secret information relating to climate change.

They make the point that heightening the disclosure requirements in this area might drive businesses away from relying on trade secrets toward more patent protection.  In view of the trade secret policies discussed here and the aforementioned proposals to weaken or eliminate patent protection on green technologies, one wonders where green tech innovators would turn to protect their technologies if all of these policies were enacted.

The copyright chapter by Estelle Derclaye discusses questions of access, dissemination, interoperability and pricing of copyrighted works relating to environmental issues (Chapter 18).  Such works might include green buildings and architectural plans, charts, maps, photographs, films, software, and databases.

After providing some context on eco-marks (including certification marks), green consumers and greenwashing, Christine Haight Farley suggests improvements to the certification mark registration process such as greater transparency in the certification standards, periodic review of those standards, and clearer terminology of the terms used for certification.

The book does suffer from what almost any such compilation would – patches of redundancy.  A reader of the full volume is treated to the basic principles of the UNFCCC treaty and the conflict between developed and developing countries not only in the introductory chapter on IPR under the UNFCCC treaty (Chapter 5) but also in the IP enforcement piece (Chapter 7), and Chapter 10 on tech transfer.   This is just one example.  In these chapters and others, the different authors go over the same principles, the same perceived barriers to tech transfer, and the same old proposed patent policy solutions.

Moreover, the compendium would have benefited from a chapter on green patent litigation.  There’s been so much of it over the last couple of decades, including some involving critical patents and substantially impacting some areas of green technology.  Hybrid vehicle technology company Paice’s enforcement efforts against Toyota and other automakers, GE’s two sets of litigation centered on a seminal variable speed wind turbine patent, and the Gevo-Butamax case come to mind, among others.

As mentioned above, one of the book’s strengths is that it goes well beyond the subject of intellectual property.  One of the novel contributions is an interesting chapter by Robert K. Musil on religious environmentalism in America, including religious climate activism (Chapter 9).

Another welcome perspective is the antitrust chapter by Michael Carrier discussing issues such as how to define the relevant market in green technology sectors, monopoly concerns such as refusing to license green technologies (though refusing to license is typically legally permissible and the prerogative of the patent owner), technical standards such as those in the smart grid sector, and how patent pools might be treated under antitrust law (Chapter 13).

On the whole, Sarnoff’s “Research Handbook on Intellectual Property and Climate Change” is packed with varied perspectives and essential information and is therefore a very useful guide for anyone interested in IP and climate change (and beyond!).  To have all this packed tightly into one book is a great thing.  I’m quite pleased to have it on my bookshelf.

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.