Patent law has a dirty history. A legal mechanism refined in the industrial revolution, patent law has sought to encourage manufacturing and industry – the ‘Progress of Science and the Useful Arts’. Patent law has provided incentives for research and development for a wide range of polluting technologies, such as oil, coal, gas.

The world’s largest oilfield service providers have built upon a large portfolio of patents to protect their research and development. Baker Hughes obtained 138 patents in 2012 and 368 patents in 2013. Schlumberger’s patents rose to 588 in 2013 from 235 in 2012. Halliburton’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 – 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 ‘fracking’ – hydraulic fracturing. Daniel Cahoy and his colleagues argue that Fracking Patents have emerged as a means of Information Containment. 

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 ‘they’re willing to alter the chemical composition of the atmosphere to make money.’ He maintained that such companies should lose their social license and respectability: ‘If it is wrong to wreck the climate, then it is wrong to profit from that wreckage’.

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. The Supreme Court of the United States has sought to narrow and limit the boundaries of patentable subject matter in a trilogy of cases – Bilski v. Kappos; Mayo v. Prometheus; and 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. Article 27 (2) of the TRIPS Agreement 1994 recognises that ‘members may exclude from  patentability inventions… [in order] to avoid serious prejudice to the environment’.

Professor Estelle Derclaye from the University of Nottingham has argued that ‘patent 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 CO₂ emitted.’ Examining European law, she suggests: ‘Applying 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.’

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 rights’ 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 – 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 – 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 – 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 world’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: ‘As human activity caused the problem, so too can human activity find the solutions’. He has insisted: ‘Green innovation – the development and diffusion of technological means to tackle climate change – is key to halting the depletion of the earth’s resources.’

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.  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.

In November 2001, Doha hosted trade talks over intellectual property and public health. The discussions resulted in the landmark Doha Declaration on the TRIPS Agreement and Public Health.

The Doha Declaration recognised “that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health” – particularly in relation to HIV/AIDS, tuberculosis, malaria and other epidemics.

More than a decade on, in December 2012, Doha hosted the international climate talks for parties to the United Nations Framework Convention on Climate Change 1992 and the Kyoto Protocol 1997.

There was, once again, a contentious debate over intellectual property – this time in relation to clean technologies. The Climate Action Network argued that there should be a Declaration on Intellectual Property and Climate Change to facilitate the “rapid and efficient uptake of technologies to address mitigation and adaptation”.

Disappointingly, the 2012 Doha Climate talks resulted in no declaration or agreement on intellectual property and clean technologies. Indeed, the discussions on intellectual property were deadlocked. There was instead a cluster of decisions known as the Doha Climate Gateway.

While such decisions did not address intellectual property or open innovation, the Doha Climate Gateway selected the United Nations Environment Programme to host the UNFCCC Climate Technology Centre.

Intellectual Property and Clean Technologies

In the debate over the Doha climate talks, there was division over whether there should be text in respect of intellectual property and clean technologies.

China said, “We’re not going to request technology transfer free of charge. We certainly respect intellectual property rights.”

South Africa argued the talks should address “questions of equitable access to sustainable development, intellectual property rights and unilateral trade measures.”

The Philippines requested that the Technology Executive Committee consider issues “related to intellectual property rights as they arise in the development and transfer of technologies.” The country was particularly concerned about the need to address climate emergencies.

The Progressive Latin Americans – such as Venezuela – mooted text on a wide range of co-operative measures on intellectual property and climate change.

A Green Intellectual Property Exchange?

There was also significant discussion of co-operative models for facilitating open access to clean technologies.

In their book MacroWikinomics, Don Tapscott and Anthony Williams have called for the establishment of a green technology commons, sharing humanity’s knowledge of sustainable technologies.

The Creative Commons – celebrating its 10th birthday – has established the GreenXChange.

The Climate Action Network has proposed building on such a model, and establishing an intellectual property exchange to “enable secure, efficient and transparent arms-length transactions for intellectual property licensing”.

India put forward compromise text on intellectual property and climate change. India’s lead negotiator, Mira Mehrishi, called for a fund to enable access to clean technologies with intellectual property rights. Mehrishi commented: “If we don’t get cheap technology we will never be able to adapt to climate change.”

However, developed countries rebuffed such compromises.

Intellectual Property, Piracy, and Climate Change

As noted by attendee Michael Mazengarb, developed countries said there should be strong enforcement of intellectual property to encourage investment in clean technologies.

The United States and the European Union insisted that the Doha Climate Gateway should be silent on intellectual property. Other developed countries argued that other forums – such as the World Trade Organization and the World Intellectual Property Organization – would be better placed to address intellectual property and climate change.

It is striking that, while intellectual property was a taboo subject in the Doha climate talks, the United States simultaneously pressed for an expansionist chapter on intellectual property in the Auckland talks on the Trans-Pacific Partnership.

Indeed, the Edison Electric Institute – which represented United States energy companies in climate discussions – promoted the controversial Trans-Pacific Partnership as a preferable model where “global innovation is maximized” and “intellectual property rights are adequately protected”.

The Climate Technology Centre

The Copenhagen Accord 2009, the Cancun Decisions 2010, and the Durban Platform 2011 established the foundations of a technology mechanism – a UNFCCC Climate Technology Centre and Network.

In the lead-up to the Doha negotiations, the Technology Executive Committee asked for greater clarity about the Climate Technology Centre’s role in matters of intellectual property.

The topic was discussed during the climate talks in Durban. Draft text on December 7, 2012 alluded to intellectual property, suggesting the Technology Executive Committee should be “examining effective mechanisms that promote access to affordable environmentally sound technologies, reward innovators and increase the dynamic of global innovation.” However, even such euphemistic language was erased in the end.

One of the key positive decisions of the Doha climate talks was the selection of the United Nations Environment Programme (UNEP) to host the UNFCCC Climate Technology Centre for an initial term of five years.

UNEP had put together a collaborative bid. The United Nations Industrial Development Organization (UNIDO) will be a co-manager. The partners of the consortium included research and scientific organisations in Thailand, India, Argentina, Costa Rica, Kenya, Germany, the Netherlands, Denmark, and the United States.

India will play a key role. The United States partner is the National Renewable Energy Laboratory – an innovator on a wide range of clean technologies.

The UNEP emphasized in its bid: “We will be driven by country needs, recognizing as well that weak institutions are often a barrier to the transfer of technologies and that developing the capabilities of developing countries is critical.”

The Executive Secretary of the UN Framework Convention on Climate Change, Christiana Figueres, was optimistic:

The world has the money and technology to stay below two degrees. After Doha, it is a matter of scale, speed, determination and sticking to the timetable.

* 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.

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

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.