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

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


1
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

2
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

3
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.

4
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.

5
Sample Environmental Patent Application

6
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.

7
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.

8
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
9
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.

10
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.

11
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

12
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.

13
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 ?

14
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?

15
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.

16
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

17
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?

18
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)

19
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?

20
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
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