COP28 highlights IP’s role in climate change fight

As the curtains closed on COP28, more than 200 United Nations countries secured an agreement to begin a so-called “transformative journey” away from fossil fuels.

Discussions at the conference delved into technology transfers, access to genetic resources, and the role of IP in promoting the development and deployment of clean technologies.

As Hady Khawand, partner and country manager at Saba IP, explains: “COP28 highlighted the need for balanced IP frameworks to support sustainability goals and emphasised the need for regional initiatives and private sector collaborations.”

In addition, COP28 explored how to approach potential IP frameworks for climate-friendly agricultural technologies, how to promote innovation in renewable energy technologies, as well as tackling the IP barriers that remain.

Despite no formal agreement being reached, Khawand believes “the momentum for future collaboration on IP and environmental sustainability is building up”.

Munir Suboh, partner at Taylor Wessing UAE, highlights the UAE’s IP legislation reforms that have been ongoing in the past few years, which includes the drive for innovation.

“The current IP landscape supports efforts to achieve recommendations, outcomes and commitments upheld in COP28,” he adds.

Khawand describes the IP landscape in this space as “complex and evolving”, due to it being “fragmented with varying national regulations and inconsistencies”.

He points to the different patent standards and durations for green technologies in different countries, which presents challenges for innovators on a global scale.

“These inconsistencies can create barriers to access and affordability, which must be balanced with the incentives for green technology development that IP provides,” explains Khawand.

Legal sector sustainable responsibilities

The proposal and draft decision from the fifth session of the conference, released today (Wednesday, December 13), acknowledges the need to address climate change and biodiversity loss comprehensively.

It emphasises the importance of international cooperation and expresses concern about climate change with finance, capacity-building, and technology transfer being key in enabling climate action.

The proposal also calls for specific actions—including tripling renewable energy capacity, phasing down unabated coal power, transitioning from fossil fuels, and reducing non-carbon-dioxide emissions.

And the legal sector must lead the way in bringing about change for future generations, according to lawyers.

Suboh emphasises that “without acknowledging the role of legal practitioners, the efforts in making any change will remain slow and unlikely to accomplish what all summits, including [what] COPs recommend”.

Khawand suggested that legal practitioners should “actively engage with relevant stakeholders, by attending conferences and workshops, and participating in online communities dedicated to IP and environmental law”.

This should be coupled with “monitoring international developments and adapting practices accordingly,” he advises.

Balancing innovation and access

Neil Coulson, partner and IP department chair at Baker Botts, believes that technical innovation and investment in areas such as renewables and carbon capture, and the protection and ownership of valuable IP rights, “will play an ever-increasing role in the drive to net zero”.

According to Taylor Wessing’s Suboh, “the ambitions in bringing innovative environmental technology could be faster than the development of IP protection procedures in the [Gulf] region”.

However, he adds that “the cause of environmental sustainability technologies should always be the motive rather than the monopoly, exclusivity, and immediate financial rewards that inventions or IP rights bring”.

But Saba IP’s Khawand warns that while IP plays a role in stimulating innovation for environmental technologies, it can also create barriers to access and affordability.

Balancing these competing interests is “crucial” for promoting sustainable development, he urges.

To address these challenges, Khawand suggests that open access models and collaborative research should be given more weight and encouragement.

Accommodating emerging tech

As with any new technology, Coulson emphasises that it's crucial to have a “robust internal process for identifying and protecting inventions with patents”.

Additionally, both internal and external processes are essential to prevent the loss of valuable trade secrets, he adds.

“It’s not so much a question of adapting the framework of IP laws, as companies developing emerging technologies in the environmental sector understanding and proactively moving to protect their inventions and trade secrets in the most appropriate manner,” he explains.

Meanwhile, Khawand recommends that IP laws evolve and adapt to accommodate faster innovation cycles and emerging technologies in the environmental sector.

“Flexibility and adaptability are crucial to ensure protection and incentivise further development,” he says.

These should comprise new legal frameworks for AI-driven environmental solutions, flexible licensing models for renewable energy technologies, and clear rules on data ownership and sharing, he adds.

According to Suboh, clean energy appears to be the future.

However, whether this transition happens will depend on the lobbying and conflicts of interest between giant enterprises that have built their success on traditional energy sources, and those advocating for a cleaner and sustainable future, he explains.

He also stresses the importance of future generations making a difference.

Increased IP awareness, says Suboh, will show young innovators that IP rights facilitate emerging innovations, technologies and solutions “that will make their future better.”

Such education will “open their horizons” and change the law in the future to factor for sustainability due to their “interests in renewable and environmentally friendly energy sources and technologies”.

Challenges associated with protecting IP in advancing industries

Coulson highlights that the key challenge is a company identifying its own inventions and trade secrets, while also “staying abreast of technical advances made by competitors”.

This is to ensure that firms can maintain a competitive technical advantage by consistently exploring and reviewing partnership, licensing, and enforcement options.

Challenges highlighted by Khawand include the difficulty in updating IP laws to keep pace with technological advancements, the struggle to balance individual rights with collective needs for environmental sustainability, and the complexity of enforcing IP rights across diverse jurisdictions.

Additionally, there are challenges in defining ownership and inventorship for collaborative research projects, and ensuring global access to environmentally beneficial technologies while protecting IP.

Protecting IP in certain jurisdictions is challenging when advocating for prompt and effective measures to uphold these rights, according to Suboh.

In regions where innovation thrives, there's support for IP protection.

However, Suboh adds that in some jurisdictions, concerns exist that this protection could create a monopoly, limiting local resources and putting societies at a disadvantage.