Intellectual Property and Sustainable Development

Draft Danish Climate Agreement: "Respect IPR Regimes"

The draft Danish non-paper being circulated for comment contains the the following language on technology and intellectual property (the full text is available here):

Parties commit to enable the accelerated large-scale development, transfer and deployment of environmentally sound and climate friendly technologies across all stages of the technology cycle, respecting IPR regimes including protecting the legitimate interests of public and private innovators. Developed country parties commit to work towards doubling aggregate  public investments in climate related research, development and demonstration by 2015 from current levels and quadrupling the efforts by 2020. Parties stress the need for up front finance for inter alia technology capacity building, joint research and development and demonstration projects. Parties endorse the “Technology Mechanism” set forth in decision X5/CP15, containing a technology objective, a UNFCCC technology body, the development of technology action plans, the establishment of six Climate Technology Innovation Centres in developing countries, support to joint RD&D efforts between developed and developing countries, and technology support to nationally appropriate mitigation actions, and adaptation activities, by developing country Parties.

This is the only mention of IPRs in the Danish text, which has caused quite an outcry from Developing Countries, and what Secretary General Ban Ki-moon has described as exposing some "trust issues."

Unsurprisingly, the Danes and other Industrialized Nations have chosen to pursue "Option 1" - operating the IPR regime in a business-as-usual fashion - as described in FCCC/AWGLCA/2009/INF.1 pg 184, paragraph 187.  Developing countries have proposed other options for removing IPR related barriers to technology transfer, including: exemption of climate-related technologies and genetic resources from patent protection in some or all countries;  active use of the compulsory licensing flexibility contained in the TRIPS Agreement;  and establishing patent pools and other means of sharing IPR protected technologies, and associated know-how.  

3rd Quarter CIEL-South Centre IP Quarterly Released

The latest edition of the CIEL-South Centre joint publication, IP Quarterly, has been released.  It is available here:  http://www.ciel.org/Publications/pubipqu.html

This Focus Piece discusses the new mandate of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) that was renewed by the WIPO General Assembly IN 2009 and identifies challenges that lie ahead in the future work of the IGC under the new mandate for text based negotiations towards an international legal instrument or instruments for the effective protection of GR, TK and TCEs. It points to the need for greater coordination on the part of developing countries between themselves and with their national stakeholders to overcome these challenges and also stresses on the need to ensure that the work of the WIPO IGC complements the work currently undertaken on related issues in other multilateral fora, particularly the WTO negotiations on the relationship between TRIPS and CBD, and the CBD International Access and Benefit Sharing Regime.

Following the Focus Piece is a summary of major developments in the third quarter of 2009 on IP related issues in multilateral organizations including: UNFCCC, WTO, WIPO, WHO, CBD, FAO, regional and bilateral free trade agreements, national legislations, and other related processes like ACTA and G8.

EPO Unveils Clean Tech Patent Study

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?