To wrap up our SpicyIP Fellowship applicant series*, we bring you a final post by Anubha Sinha. In this post, she discusses the urgent need to involve and adapt our IPR policy to better address the fight against climate change.
*Note: We are yet to review a few posts by authors that have fallen short of the three posts required for the fellowship. These will be reviewed and published in our normal guest series in the coming week.
Climate Change and IPRs
Manmohan Singh recently unveiled the National Science, Technology and Innovation (NSTI) Policy 2013 at the 100th Indian Science Congress in Kolkata. The report says:
“NSTI policy also strives to modify intellectual property rights (IPR) policy for co-sharing innovations under PPP and to launch new mechanisms for nurturing technology-business incubators and science-led entrepreneurship. For investing in such innovative and ambitious projects, a national science, technology and innovation foundation (NSTIF) will be established as a PPP initiative.
.... Taking cue from the NSTIF, which will play an active role in the mission for a national action plan for climate change, the state government [Kerala] will focus on the mission,..”
SpicyIP recently posted a comprehensive analysis of the policy.
My focus in this post is the relationship between climate change action and IPRs. In this context, I think if the NSTI truly aims to achieve what it claims, there has to be a well defined plan of action for IPs concerning clean energy technology.
While the policy does not show any intentions to link the two aspects, the world meanwhile has long woken up in this regard. The role of IPRs in any transformative technological landscape cannot be ignored and climate change is no different. It is the aim of climate change mitigation plans to rapidly develop and ensure diffusion of key technologies. Unfortunately there hasn’t been much headway in the same at a global level, and the role of IPRs remains a rather divisive issue. While I believe that ‘Patenting incentivises innovation’, the same is not a very popular belief shared in the clean energy sector. And I share the sentiment with protestors in this regard as an exception. We know that climate change is a ticking bomb and the repercussions are going to be severe. In mankind’s efforts to create mitigating and adaptive technologies, we have to possess a moral urgency and responsibility to ensure that the conventional regime of IPRs does not prove to be a detriment to the benefactors or the creators. The discussion below is not exhaustive in nature, it is an attempt at providing a macro view of the current scenario.
There already exist several issues with the current regime:
1. The role of IPRs is increasingly seen as a barrier to scaling down costs in order to make clean energy more affordable. The current system also locks in inventions for a long period which is not viable because waiting for 20 years can make a big detrimental impact to the environment.
2. Technology transfer has always been one of the key pillars of the UNFCCC (read SpicyIP’s post), however the IPRs remain a story of disagreement between countries and stakeholders involved.
3. Obviously, ignoring the worsening climate change scenario for only monetary gains is a heavy price to pay, and exceptions will have to be made in regard to clean energy technologies in terms of licensing rules particularly [to enable tech transfer].
4. Lack of sharing of technological advancements made in the field by each country, i.e. working towards creating transparency in the patent system.
Of course there are complex issues and several considerations attached to the solutions to each of these problems. For example, as this report states:
“ Most patented technologies are already free of enforceable patent rights in the majority of developing countries, and this absence of patent protection doesn’t necessarily spur technology transfer. At best, it leaves open the prospect of using the technology disclosed in the patent document, but often without the partnership or involvement of the technology originator, and the transfer of valuable knowhow and other background technology that may be useful for the effective exploitation of the technology.”
Several solutions have been put forth by stakeholders and countries to tackle the issues discussed above:
1. Making international IP instruments flexible with regard to clean energy technology could be a significant step. ‘Exclusion from patentability’ need not be the de rigueur, and but we need to reconsider whether ‘green’ patents may be granted by only satisfying the current requirements: patentable subject matter + non-obviousness + novelty + utility.
We’re witnessing a constant expansion of the term ‘patentable subject matter’ which is also slowly encroaching biotechnology and life sciences. This is a big impediment to sequential innovations. When we expect every stakeholder and country to build from an existing knowledge base, a strict and an all encompassing definition of patentable subject matter is a roadblock to innovation.
The TRIPS agreement[Article 27.2] says that nations may create limited exceptions to patent rights on environmental grounds:
“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”
2. A licensing model can be created on the lines of compulsory licensing for drugs; after weighing the advantages and disadvantages accordingly. Of course establishing the criterion remains a challenge here.
3. The industry is always hesitant to lend adequate support in terms of funding and equipment in ventures where the success is uncertain and markets are small. Thus the government needs to play a huge role in extending support of any kind.
4. There is also the option of creating open patent pools, so that technology is easily licensed across parties, thereby increasing access and affordability.
5. Creating an alternative patent system sounds rather ambitious, but academicians have proposed several steps in this regard. The idea is to establish an integrated platform for systems working in sync with each other to ensure transparency and harmony in the patent system.
6. If a complete overhaul of the system is not viable, at least start implementing an expeditious procedure for examination and grant of ‘green patents’.
Meanwhile this report gives a country-wise analysis on clean energy innovation. US leads the race by having an astounding 798 patent applications filed in the third quarter concerning clean energy. India has also a significant number of patents in this regard, keeping in mind the recent downturn in domestic patenting in India. Since technology has undone the environment, it is time to deploy the right clean technology to undo the damage. A well structured patent regime would propel research in clean energy technology to another level, which is the need of the hour