Archive for the ‘Climate Change Law’ category
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class="post-9237 post type-post status-publish format-standard hentry category-climate-change-law category-green-patents category-policy-initiatives">
January 27th, 2017

Despite its title, this book is about much more than intellectual property and climate change. Â 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. Â 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. Â 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). Â 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. Â 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.
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class="post-8394 post type-post status-publish format-standard hentry category-climate-change-law category-green-patents">
The Bulletin of the Atomic Scientists recently published a spirited debate on the role of intellectual property rights (IPR) in commercialization and transfer of climate mitigation technologies.
The participants, who debated via a , were Carlos M. Correa, director of the Center for Interdisciplinary Studies on Industrial Property and Economics at the University of Buenos Aires, Frederick M. Abbott, professor of international law at Florida State University College of Law, and Ahmed Abdel Latif of the International Centre for Trade and Sustainable Development.
Correa kicked off Round 1 with an essay entitled “The burden of intellectual property rights” in which he lays out the case for patents acting as a barrier to diffusion of green technologies to developing countries and for those countries to use compulsory licenses to access the technologies they need.
The essay makes some valid points. ÃÂ Correa persuasively took on the argument of IPR defenders that the dearth of green tech patents in the poorer developed countries means patents do not stand in the way of green tech transfer and acquisition. ÃÂ He noted, probably correctly, that these countries must rely on technology produced elsewhere, such as China and India, so patents in those countries are relevant to green tech transfer to the ultimate target markets, including developed countries.
I agree to a large extent with Correa’s notion that IPRs should function not only as an incentive to innovators but more broadly as a vehicle for diffusion and commercialization of the technologies being developed and patented. ÃÂ However, I think he goes too far in saying that the IP system should “ensure that new technologies are accessible to all countries.” ÃÂ I don’t believe it is the role of the IP system to guarantee accessibility to innovation.
One misstep in the essay is the attempt to refute the point made by Professor Abbott and others that green tech patents rarely confer market power because most fundamental green technologies are off-patent and there is competition among the tremendous diversity of green technologies.
Correa counters that “many patents cover minor or trivial developments and may be used to block genuine innovation and competition.” ÃÂ By definition, though, a patent directed to an incremental improvement will not block use of the earlier technology (without the improvement), and such a patent is highly unlikely to confer market power.
Correa also cites studies that show large numbers of patent applications filed on green technologies in recent years. ÃÂ But these statistics are meaningless absent information on the inventions being patented and how those inventions compare to the many green tech inventions which are off-patent.
Where I strongly disagree with the essay is in its insistence that IPRs are a (clear and present) problem for developing countries seeking access to green technologies. ÃÂ The support for this – presented in Correa’s Round 2 response entitled “The problem is real” – is that the problem has been recognized in environmental summits and climate change treaty talks over the years and countries such as Ecuador have proposed patent exemptions and reductions in patent terms.
Correa emphatically states that IPRs pose an actual problem:
But a problem does exist – insofar as the system of private appropriation of innovations may delay for 20 years (the normal duration of a patent) the introduction of new technologies into developing countries (the majority of the world). (emphasis in original)
While raising IPRs as a discussion topic and putting forth policy proposals may reflect a concern over IPRs as aÃÂ potentialÃÂ problem, they do not make it an actual one. ÃÂ The statement about patent term seems to recognize this distinction by admitting that a patent “may” delay introduction of new technologies.
While the possibility of a refusal to license patented green technology is mentioned, no documented cases of such refusals are discussed.
Perhaps this is why the Round 1 essay closes by calling for developing countries to use compulsory licenses to access to green technologies “whenever they find it convenient.” ÃÂ Use of compulsory licenses when necessary may be an unattainable standard.
In his Round 1 contribution, entitled “A problem, but not without solutions,” Professor Abbott argues for a “middle path” between the defenders of IPRs and those calling for compulsory licensing of green tech patents. ÃÂ One such path could be joint ventures between enterprises in developed and developing countries, facilitated by government policies to make investment in developing countries more attractive.
Abbott also proposes patent pooling, direct voluntary licensing, product development partnerships, and development buyout funds to purchase technology from high-income countries and share it globally.
Finally, Professor Abbott notes that IPRs are not the only factors that could be restricting access to green technologies in poorer countries; he writes that “entrenched economic actors” such as utilities may not want to introduce renewable energy technologies in some countries. ÃÂ I would add to the list of non-IP factors in the poorer developing countriesÃÂ small market size, lack of infrastructure, and insufficient skilled labor.
As always, Ahmed Abdel Latif is a voice of reason in a contentious dispute. ÃÂ That voice comes through in his essay, “Disputed impact, but not to be ignored” in which Abdel Latif calls for a “structured, incremental, and constructive debate on the issues.”
He thinks this debate should start by looking at practical initiatives that might encourage diffusion of green technologies into developing countries and later address the controversial issues such as changing IP regimes.
Whether the IP system needs changes, Abdel Latif reminds us, is still an open question. ÃÂ Particularly, the essay notes that “the impact of intellectual property rights on low-carbon technologies in developing countries is both complex and hard to quantify.” ÃÂ With the diversity of green technologies out there and the limited empirical research done so far, we still don’t have a clear picture of the role of IPRs.
Hence, the constructive debate Abdel Latif proposes, without giving undue weight to either side, but acknowledging the importance of IPRs:
The importance of intellectual property rights should be neither overestimated nor underestimated. ÃÂ What’s certain is that intellectual property rights cannot be ignored.
As long as we have passionate and intelligent people like Correa, Abbott and Abdel Latif, we can be sure the role of IPRs in climate change will not be ignored.