Climate Change, Technology Transfer and IPRs: Issues, Options and Challenges for Copenhagen and beyond

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Climate Change, Technology Transfer and
IPRsIssues, Options and Challenges for
Copenhagen and beyond

• Ahmed Abdel Latif
• Programme Manager
• Intellectual Property and Technology, ICTSD
• European Parliament
• Committee on International Trade
• 10th November 2009

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Climate Change, Technology Transfer and IPRs
Issues, Options and Challenges for Copenhagen
and beyond

1. The technology transfer imperative
2. Deconstructing the role of IPRs
3. Evidence gap on technology transfer and IPRs
4. Compulsory Licensing
5. Voluntary Licensing
6. Technology and patent pools
7. RD and technology collaboration
8. Public private partnerships (PPPs)
9. Innovation in developing countries and LDCs for
   climate change technologies

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Enhanced transfer of climate friendly
technologies A key element of a global climate
change deal

• The UNFCCC calls on developed countries to take
  steps to promote transfer of technology (TOT) to
  developing countries (Article 4.5).
• The Bali Action Plan called for enhanced action
  on technology development and transfer to support
  action on mitigation and adaptation, including,
  inter alia, consideration of
• (i) Effective mechanisms and enhanced means for
  the removal of obstacles to, and provision of
  financial and other incentives for, scaling up of
  the development and technology to developing
  country Parties in order to promote access to
  affordable environmentally sound technologies
  (EST)
• Discussions at the UNFCCC on IPRs have witnessed
  a polarization around the question of whether
  IPRs are a barrier to the transfer of climate
  change technologies or an essential pre-requisite
  to promote technology transfer and innovation in
  green technologies.

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Deconstructing the role of IPRs in Technology
Transfer

• Technology Transfer (TT) is a complex and
  multidimensional process.
• Its success is contingent on many factors
  (finance, local absorptive capacity, enabling
  environment).
• TT involves knowledge which is embodied not only
  in IPRs such as patents but also in blueprints,
  designs, know-how and trade secrets.
• IPRs are important to promote innovation. By
  offering protection against a loss of control of
  information in technology-related transactions,
  IPRs can be an instrument facilitating the
  transfer of technology.
• IPRs have also an impact on cost of technology
  acquisition and rate of technology diffusion.
  Licensing conditions play a key role.
• Role of IPRs varies according to technology and
  sector. IP issues raised in the context of
  mitigation technologies are different from those
  in the context of adaptation.

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Sample Environmental Patent Application

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Evidence Gap on Transfer of Climate Change
Technologies and IPRs

• The experience in the implementation of the
  Montreal Protocol
• Landmark study by John Barton for ICTSD in 2007
  IP and Access to Clean Energy Technologies in
  Developing Countries. An Analysis of Solar
  Photovoltaic, Biofuel and Wind Technologies.
• Several studies were released in 2008/2009.
• Some trends identified
• Significant increase in patenting of clean
  technologies in recent years (since 2000)
• Concentration of patent ownership in OECD
  countries
• Few patents registered in low income countries
• Limitations
• Partial coverage of technologies and of countries
• No technology mapping
• No expertise in the retrieval of patent
  information
• No comprehensive analysis of licensing practices.
  The number of patents in the area might not be
  the key issue but rather the licensing practices.
  

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UNEP-EPO-ICTSD Project on IPRs and Climate
Change Technology

• Unique partnership between
• UNEP
• European Patent Office (EPO)
• ICTSD,
• The scale of the challenge, both in analytical
  and policy terms, is such that only a broadly
  based partnership can have success. Partnership
  announced in April 2009.
• The project includes carrying out a technology
  mapping, a patent landscape of clean technologies
  in the area of energy generation and a survey of
  licensing practices in the same area.

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Research and Analytical Steps
Current project
Further possible projects
PHASE 1 PHASE 2 PHASE 3 PHASE 4 PHASE 5
Technology mapping studies in 4 key mitigation
sectors identified by the IPCC
Energy
Buildings
Transport
Industry
Identification and specification of technologies
for mitigation
Patent landscaping What patents exist on these
technologies?
Licensing survey for 300-500 selected companies
and institutions per sector
Synthesis report to better inform UNFCCC
negotiations on transfer of technology and
financing
Broad dissemination of results
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PHASE 2 Patent Landscaping for Renewable
Energies

• Key question Which patents are related to
  renewable energies, according to the technology
  mapping?
• EPO's core competence in patent classification is
  key asset (internal classification scheme ECLA
  goes much deeper than IPC) .
• A team of EPO examiners have tagged all related
  patent records worldwide.

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Phase 3 Survey of Licensing Practices

• How far to go asking for information which could
  be part of business strategy ?
• Consultation in Geneva on May 8, 2009 with
  representatives of major industry/business
  associations.
• Survey carried out between August and October
  2009.
• More than 150 responses received from respondents
  which include companies, public research
  organizations, academic institutions etc.

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Input of the project into UNFCCC discussions

• Results of the patent landscape and licensing
  survey are currently being studied. Some
  preliminary findings will be presented at COP 15
  in Copenhagen. Final report will be available by
  spring 2010.
• Project illustrates how to implement an element
  of the negotiating text on Technology
  Information
• A technology information platform for ESTs
  including a global technology database should be
  developed and continuously be updated to collect
  information on sector specific technologies and
  best practices, including on IPRs and licensing,
• Ultimately, availability of accurate patent
  information
• not an end in itself but an element in an
  enabling
• environment for innovation and TT

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Menu of options for the nexus Transfer of
Technology/IPRs

• In relation to IPRs, and taking into
  consideration results of evidenced based
  analysis, possible responses
• ? Business as usual approach difficult to
  sustain in view of urgency and demand for rapid
  and wide scale diffusion of CC to developing
  countries
• ? Promoting the transfer of technologies in
  the public domain
• ? Guidelines on Technology Licensing on fair
  and reasonable terms for developing countries
• ? Arrangements for greater use of alternative
  innovation models (prizes, patent pools, open
  innovation etc.) and collaborative RD
• ? Building capacities on EST research and
  innovation in developing countries
• ? Use of TRIPS flexibilities
• Exclusion from patentability, compulsory
  licensing, competition.

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Use of TRIPS flexibilities/Compulsory License

• The TRIPS Agreement includes provisions that
  allow the exploitation of patented inventions
  without the consent of the IPR owner, such as
  compulsory licenses (CL).
• TRIPS does not list specific reasons to justify
  the use of a CL and leaves grounds to be
  determined by national legislation in compliance
  with Article 31.
• Question of Article 31 (f), CL for predominantly
  domestic market.
• US Clean Air Act confers for a court, at the
  Governments request, to order a CL with
  royalties decided by the court.
• Cannady (ICTSD/2009) a country may invoke CL
  for CC technologies without violating TRIPS.
• In a nutshell, CL is legally available but how
  practical is it to achieve greater access to
  climate change technology ?

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Licensing of climate change technologies to
developing countries

• Negotiating licensing agreements on a case by
  case basis can be costly and time consuming. A
  new policy framework could help to lower these
  transaction costs for climate change
  technologies.
• EGTT Strategy Paper (FCCC/SB/2009/3) suggests
  Innovative licensing models.
• Private sector has expressed support for an An
  international set of core contractual principles
  for business engaging in clean energy technology
  licensing in developing countries, CEO Climate
  Policy Recommendations to G8 Leaders (July 2008),
  WBCSD/WEF.
• Guidelines on licensing climate change
  technologies on fair and reasonable terms for
  developing counties?

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Establishing technology and patent pools

• Patent pools have been proposed as a way to
  enhance developing country access to climate
  change technology
• A patent pool is an agreement by multiple patent
  holders to share intellectual property among
  themselves or to license a portfolio of patents
  as a package to outsiders
• Use of patent pools to advance public policy
  objectives has been limited.
• Patent pools may offer licenses to patents that
  developing countries can use anyway, because the
  patent owners often do not file there.
• Rules governing the patent pool arrangements are
  key.

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Scaling up joint RD and research collaboration

• Widely shared and recurrent policy option. The
  questions are why is it not done more ? And how
  can it be scaled up?
• Overall, there is little joint RD and research
  collaboration in the areas of CC technologies,
  even between OECD countries.
• Focus tends to be on pre-competitive stage of
  technology development.
• In many countries, universities are not allowed
  to license technology funded by their national
  government to foreign firms.
• Useful models, examples and options to consider
• IEA agreements (ITER)
• EU experience in joint RD and innovation between
  its member countries
• Role of bilateral science and technology
  agreements

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Greater use of public private partnerships (PPPs)

• PPPs have proved useful in the health area to
  address situations of market failures such as
  research into neglected diseases.
• In the are of climate change technologies, they
  could be particularly useful in relation to
  technology transfer to LDCs where traditional
  market mechanisms do not operate effectively.
• Question remains how to provide incentives to
  private sector to participate in such
  partnerships?

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Support to research and innovation efforts in
developing countries and LDCs

• Integrate of CC technology as a priority in
  national innovation and S/T policies and
  strategies.
• Regional innovation centres and networks. What
  would be their IP policies?
• Explicit recognition of the role developing
  country universities and research institutions in
  climate change technology.
• Capacity building for skills like technology
  management, use of the IP system and licensing
  contract negotiations.
• Emphasis on international financial support for
  national technology innovation plans based on
  national needs and capacities (as defined by
  developing country parties)

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Conclusion

• Broader policy questions
• How do we balance appropriately innovation and
  access?
• Should the IP system operate in a business as
  usual mode when it comes to climate change ? does
  the scale and urgency of the climate change
  challenge require special measures to be taken to
  ensure that the IP system contributes effectively
  to the wide scale dissemination of climate
  technologies on an affordable basis?

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Thank you

• ICTSD Global Platform on Climate Change, Trade
  Policies and Sustainable Energy
• ICTSD initiative on
• Climate Technology
• and Trade
• www.ictsd.net
• aabdellatif_at_ictsd.ch