Green energy patents: an ally against climate change?

The issue of climate change is a burning one, and solutions are needed imminently to tackle it effectively. Through the years, global leaders have made efforts to address it but still, no significant progress has been made. As a result, climate activists are frustrated by the lack of initiatives. The negative effects of climate change are beginning to show in the form of aggressive physical phenomena that appear frequently, threatening our future. However, an unlikely ally exists in the form of Intellectual Property (IP) rights. Can IP laws and in particular patent laws help us get out of this tough situation?


The short answer is yes. Arguably, it is accepted that IP has the capacity ‘to act as an incentive to invent, find a new way around an old problem, or prevent the creation of a new one’. [1] Even more, some emphasise the fact that it can also act as ‘an incentive to invest.’ [2] The current issue we are facing and need to overcome is the effective transition to a sustainable future by developing green energy technologies and encouraging relevant inventions. Thus, one could observe that there is a window of opportunity to use IP rights to aid us make that transition possible. Specifically, patent law is the field that could help us achieve this goal.


Patent law as a legal field aims at regulating inventions and securing the rights of inventors while fostering innovation within societies. For example, patents can aid us in the fight against climate change by ‘creating incentives to invest in the development of fresh sources of domestic and industrial energy.’ [3] Thus, a strong legal framework in relation to patent regulation can aid inventors and countries in developing their energy sector, especially in terms of green energy.


Consequently, ‘investors and businesses want to protect their investments/technologies by securing patent protection, hence the sharp rise in patent filings in various green energy sectors since the late 90’s’.[4] One could argue that this trend is only going to grow. As a result, patent filings will continue to increase because climate change is an issue that needs to be solved quickly, and the development of the green energy sector could play a significant role to curb this phenomenon.


On the flip side, one cannot forgo the bad reputation of patent law that has been pointed out in certain instances. Some have argued that patents are responsible for ‘inhibiting innovation’ and are at times described as ‘morally reprehensible.’[5] This could be attributed to a number of factors: one of them being that patent law grants owners a monopoly that provides the patent owner with a number of rights. This is seen as affording excessive power to the patent owner, something that could be proven to be unwise, especially in cases where there is a public need or emergency, and the choice of how the patented invention could be used is solely up to the patent owner’s goodwill.


Additionally, it is common knowledge that patent prosecution can be a very lengthy process. [6] However, a positive development to better this situation is the following. To ‘accelerate the process, the UK and the US have introduced a fast-track process to examine green technology patents with a claimed turnaround of 12 months.’ [7] A difficult venture but a crucial one in the cases that it bears fruit.



Another interesting initiative that has been tested is the ‘introduction of green patent databases which collate the all so-called ‘green’ patents into one database’. [8] Close to this mindset, a similar endeavour is the introduction of a system of ‘patent pooling’ in order ‘to create a commercial vehicle facilitating licensing and cross-licensing of the technologies’. [9] Both these initiatives will enable the sharing and transferring of knowledge and technology in relation to green energy. Especially the method of ‘patent pooling’ has been proven to be successful in similar situations in the past and has been even characterized as 'a win-win situation in the process of patenting technology and then marketing it.' [10]Although, it has been argued that this system might discourage competition and thus hinder innovation instead of promoting it. [11] Nonetheless, one ought to point out that the benefits should not be overlooked in the case of patent pools in the green energy technology sector, since they can contribute to the goal of achieving a sustainable and ‘greener future.’


From our analysis so far, it is evident that the ‘IP system, by conditioning exchange relations and technology transfer, has a powerful influence over climate change policies’ and thus has the potential to be used as a weapon in our collective effort to battle climate change effectively. [12] The rise in patent filings concerning Climate Change Mitigation Technologies (CCMTs) can also be attributed to the Kyoto Protocol and its significant impact in that sector. [13] However, patents in relation to CCMTs are not evenly disseminated around the globe. Countries such as Japan, the USA, Germany, France, Korea, and the UK are the leaders of patent applications in this sector. [14] This is somewhat expected since developed, wealthier countries are considered the most innovative ones due to their wealth, knowledge, and expertise. [15]


One could not overlook the emerging power and influence of other countries such as India, China, and Brazil which are making significant progress in this regard. For example, India is considered one of the ‘five leaders of solar PV patents’. [16] Additionally, Brazil is perceived as ‘the leader for hydro- and marine-based patents’. [17] This is a positive development for the economies and sustainable future plans of both these countries. However, it has been observed that ‘developing countries activities in CCMTs tend to focus on the production and dissemination of existing technology, rather than on genuine innovation’. [18] Thus, further work needs to be done in this aspect for states to become more innovative and present themselves as potential pioneers in these fields.


Whether one acknowledges this or not, every passing year, it becomes more and more evident that global warming is a great threat to humanity. However, policymakers are progressing way slower than they should in taking effective steps to tackle this phenomenon. From a legal perspective, patents can become a strong ally and aid in the efforts to save our planet. They can provide ‘strong incentives for companies to invest in certain technologies by allowing them to recoup their investments.’ [19]


Moreover, it has been observed that patents can work as an ‘enhancer of green technologies’ while simultaneously the patent system can function ‘as a platform around which ‘green transactions’ can be brokered and completed’. [20] Patent law has the unique ability to provide motives to inventors that are much needed to make the leap to a sustainable future, especially in relation to green energy technology. In conclusion, patents give us solutions for a greener future, but we are responsible for making the most out of them.




Endnotes


[1] Jeremy Philips, ‘Can IP Save the Day’, (2010) 5(2) Journal of Intellectual Property Law & Practice, 67.

[2] ibid.

[3] ibid.

[4] Gill Grassie, ‘Pooling Together-IP as Hero or Villain’, (2011) 6(1) Journal of Intellectual Property Law & Practice, 1.

[5] ibid.

[6] ibid.

[7] ibid.

[8] ibid.

[9] ibid.

[10] ibid.

[11] ibid.

[12] Roya Ghafele, Benjamin Gibert, ‘A Changing Climate-The IP Landscape of Changing Technologies’, 623.

[13] ibid. UNFCCC (1997) Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted at COP3 in Kyoto, Japan, on 11 December 1997.

[14] ibid.

[15] ibid.

[16] Ghafele & Gibert (n12) 626.

[17] ibid.

[18] Ghafele & Gibert (n12) 627.

[19] Jérôme de Meeûs Alain Strowel, ‘Climate Change and the Debate around Green Technology Transfer and Patent Rules: History, Prospect and Unresolved Issues’, (2012) 3(2) WIPO.J.

[20] ibid.

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