It’s not easy being green

In November, climate change will once again take centre stage.

As the 2016 United Nations Climate Change Conference heads to Morocco we can expect the world’s powerhouses to desperately seek solutions aimed at stabilising temperature rises and reducing emissions.

After last year’s meeting in Paris, the International Chamber of Commerce (ICC) waded into the debate and said it recognised that now was the time to take “urgent action” to tackle the issue “on all fronts”.

In a report outlining its post-summit perspective, the ICC stressed the need for cooperation from businesses but also, crucially, it highlighted the role that intellectual property can play.

All countries, it said, “must ensure that business is enabled to make the long-term investments in research and development that are essential to promote the technological innovation to address climate change, including by fostering the development and protection of IP rights—a key driver of innovation”.

In June this year, Thomson Reuters also joined the fray after it released a report called “Powering the Planet 2045” into newer and more sustainable forms of energy.

The report warned that “there are many sources of greenhouse gas emissions” including a significant percentage coming from fracking, carbon monoxide and carbon dioxide emissions, and the burning of fossil fuels to generate electricity.

“In order to reduce global warming and our carbon footprint, we need to change the sources of energy on which we rely,” the report said.

The idea of IP-backed climate change initiatives is nothing new. The topic was discussed during a special session at the International Association for the Protection of Intellectual Property World Congress in Rio de Janeiro last year. Guillaume Henry, partner at law firm Szleper Henry Avocats, said that, although there is a perception that IP and sustainable development are two areas that ignore each other, “IP can play a role in the dissemination of green technology”.

“It’s rare that IP hinders transfer. It’s our role to study this objectively and show how IP can help,” he added.

Non-fossil fuels is one key area of green technology that has interested patent owners. WIPR has analysed filing figures for the five main IP offices overleaf.

Green initiatives

As the leading global organisation for protecting and promoting IP, the World Intellectual Property Organization (WIPO) has attempted to address the issue.

In 2013, WIPO released its ‘WIPO Green’ initiative, an online marketplace that seeks to connect technology developers and prospective licensors of environmentally friendly products, and help developing countries address climate change.

At the time of the launch, Francis Gurry, director general of WIPO, said: “Our objective is for WIPO Green to become a go-to platform for green technologies, thanks to our growing network of partners and innovative collaborations with major global technology databases.”

But James Reed, senior patent counsel at law firm Squire Patton Boggs in San Francisco, tells WIPR that he is not aware of many people using the database.

“I’ve not heard from clients that companies are making specific use of it,” he says, adding that it is not a country-specific resource.

“The member states that pay into it are meant to be promoting green tech and are doing that. It’s attractive and has promise.”

Nick Reeve, partner at law firm Reddie & Grose in London, says he is not too familiar with WIPO Green but adds that “most of the large patent offices” now offer incentives to apply for green patents, including through a fast-track scheme.

The US launched a pilot programme in 2009 which favoured a limited number of applications eligible for green status—although this has now been changed to offer incentives to patents that are thought to be for the public good.

Other IP offices, including those in China, South Korea, Japan, the UK, Australia and Canada, all have initiatives aimed at green patents.

“To be a ‘green’ patent, the application must usually be environmentally friendly, reduce energy consumption or reduce CO2 emission,” Reeve explains.

The importance of IP is, unsurprisingly, rarely understated by IP associations and relevant governmental departments, but could a shift to green-based patent filings really be the answer, or at least part of the answer, to the world’s climate change problems?

Use of the fast track

Reeve explains that the number of applicants making use of the fast-track systems “varies considerably” between national patent offices.

Figures from a 2013 report by the International Centre for Trade and Sustainable Development, called “Fast-tracking Green Patent Applications: An Empirical Analysis”, revealed that the systems had not attracted a huge amount of use.

According to the report, which measured data between 2009 and 2012, just 14 of a possible 1,896 applications (0.7%) were fast-tracked in Australia, while in the UK the number was 258 from 1,237 (20%). Japan saw 203 from 13,741 (1.4%), Korea 219 from 11,680 (1.7%), and the US 1,514 from 18,421 (8.2%).

Reeve says: “The UK has proportionally more applications on a green technology fast-track scheme than other offices (this may be because the UK initiative has been running the longest or has better publicity). Although other offices, like Australia, file more green tech applications, significantly fewer applicants choose to make use of the fast-track scheme.”

Thomas Adam, partner at law firm Simmons & Simmons in Munich, says that “statistically speaking” the fast-track schemes have not been that successful.

“Only in a small number of cases have applicants chosen to accelerate their application,” he says.

But he adds that “if I were a small start-up I would want to use the programme”.

“There are a lot of advantages—you can start licensing it sooner and be more convincing to investors. If you simply have an application, there is uncertainty,” he says.

Adam adds that there is a general agreement to support and push technological development in green tech, but that it should not be a task for a single inventor to undertake.

“It should be on broader scale and we should also create incentives for young people and start-ups to push the technology forward,” he says.

Possible disincentives

Adam says that the incentive schemes may have extra constraints that patentees would want to avoid.

“I assume requesting speeded up proceedings will cost more money,” he says, adding that in Japan you also have to provide explanations of why an invention is suitable for the programme, putting “more of a burden” on the applicant.

“There is still a need to encourage innovation and R&D through patents, but it’s a balancing act. Patents can be indispensable but can also be too easy to copy."

However, he says that on the plus side a patent is much easier to enforce as opposed to keeping things secret.

Once applications are made public, and if a patent is eventually granted, other parties can use the information to create their own patents and the system can work as a way of sharing information, Adam adds.

Reed disagrees. Although patents will “always play a role in developing technology”, he doesn’t expect a focus on incentivising green technology to be a game-changer.

“Part of the reason for this is a general weakening of the patent system, meaning that patents are not as powerful and overwhelming as they once were.”

He references the US Supreme Court decision in Cuozzo Speed Technologies v Lee from earlier this year. In Cuozzo the court said it was acceptable for the Patent Trial and Appeal Board to use the broadest reasonable interpretation standard when assessing patent claims, instead of the Phillips standard used by district courts.

Reed says: “The decision will have an impact on patent owners. Mostly, the odds of enforcing a patent have gone up and there are more risks which could equal the value going down.

“There is still a need to encourage innovation and R&D through patents, but it’s a balancing act. Patents can be indispensable but can also be too easy to copy. If someone can reverse-engineer an IP right and there’s nothing else to protect innovations, then the power is reduced.”

Reed adds that companies that are building wind turbines have also made use of design applications.

“Anything that increases the longevity of a wind turbine is going to be competitive.

“You could opt for design applications as opposed to utility applications,” he says, adding that in the US, design patents have been mostly geared towards reducing costs, including by increasing longevity of wind turbines, and towards offshore construction and alternative materials.

Using IP to promote green technology may be seen as a positive step by many outside the industry, particularly those who still see acquiring an IP right as simply a way of increasing monopolies. Freeing up incentives and sharing knowledge in an area like green tech would be a positive first step towards dispelling that myth.

But if the patent system continues to have stricter rules placed on it following court decisions, possibly promoting secrecy over transparency, then using IP to promote green tech may be harder to achieve in reality.

Patent filing analysis

Research into the patent filing trends surrounding non-fossil fuel power generating systems reveals that in Japan, the US and Korea companies including Samsung, Siemens, LG and General Electric all feature heavily.

We analysed (Figure 1) filing figures from the world’s five biggest intellectual property offices: the European Patent Office, the Japan Patent Office, China’s State Intellectual Property Office, the Korean Intellectual Property Office and the US Patent and Trademark Office.