During a side-event to the 7th WTO Ministerial Conference in Geneva, the European Patent Office (EPO) unveiled its forthcoming study on patents and climate-related technologies, in a presentation titled: Patents and Clean Energy: Bridging the Gap. ICTSD and UNEP are collaborating with the EPO on the study. The study is due to be published in the Spring of 2010 - over 3 months after the UNFCCC COP 15 in Copenhagen which starts next week.
In fact, European diplomats at the presentation seemed rather irritated by both the timing of the study's publication and the apparent refusal of EPO officials to, at the very least, release preliminary highlights of the study before Copenhagen.
In short, the study that will be released in the Spring of 2010 will focus on clean energy technologies. The issues which the authors intend to address in the study include: the general use of patents, access to technology, licensing practices, and technology transfer. The first phase involves mapping of relevant technologies. The second phase involves performing a landscape survey of patent claims and ownership in the identified technologies. The third phase involved a survey of technology owners to glean insights on their licensing practices.
What appears to be the most useful part of the study is the creation of a new patent classification code for alternative energy technologies. Like nanotechnologies in the middle of this decade, no comprehensive classification system exists for alternative energy technologies. In the case of nanotechnologies, this led to a fear of patent thickets due to nanotechnology's interdisciplinary application. With this classification one might be able to examine whether thickets have formed or are forming in alternative energy technologies.
Otherwise, it appears that the diplomats' concerns about the timing of the study's publication is moot. Even if the study were available in time for Copenhagen, it would offer negotiators little clarity on the issue of technology transfer.
Like other studies, it simply looks at patent applications for a particular invention in more than one jurisdiction and thereby presumes the transfer of the patented technologies. Engineering firms who utilize a global supply-chain often obtain patents in the jurisdiction(s) of manufacture, despite never exporting the finished product to the patent-protected manufacturing jurisdiction. The study also does not account for multiple inventions assimilating into a working invention, e.g. materials such as carbon fiber, that have an application in making wind-turbines more efficient, but also have a broad spectrum of applications that are not climate-related.
Moreover, the study does not attempt to account for non-proprietary barriers, such the investment climate of a given country, which will affect technology transfer and prevent comparative analysis of the effect of IPRs on technology transfer. Finally, at present, adaptation technologies are given no attention. Even if drought-resistant crops are addressed in the food/agriculture phase, that phase is scheduled to be the fourth study, years down the road and preceded by studies on building efficiency and transportation.
The aspect of the study that informs most of the researchers’ conclusions regarding the transfer of technology is the survey. However, the survey only poses questions to the licensor regarding the relative importance of factors enumerated in the survey. No questions are posed to the actual or potential licensees. Just how honest are people when they complete a survey?
Moreover, for confidentiality reasons, the raw data from the survey will not be made available to the public. Thus the interpretation of answers is in the hands of the EPO. Would you really trust the NYSE to conduct a survey of the financial sector by allowing banks - their customers - to provide their own answers -- and then allow lawmakers to use the results to inform policy decisions?
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