GREEN ENERGY
“Most certainly we do own patents,” he says. “But I think we’re careful to try and distinguish the business model from some [industries] where IP has become a more contentious issue on the table, especially with developing countries. For example, with pharmaceuticals, you’re able to cover a whole product, and therefore much of a given market, with one or a very small number of patents. Most green technology products are decades
old...so most of what the new technology provides are new features and additional efficiencies to these products.”
He continues: “Tose are the kinds of elements that are patented. As a result, the patents come in tens if not hundreds for each given product, and those tend to be focused on improvements over the existing technology. Tat’s a significant differentiator. With the exception of these patented improvements over existing technology, we have not encountered any basic green technology products that have been completely blocked from getting to market due to patent protection. I’m not saying it won’t happen in the future or it can't happen, but the fact is that we don’t see it. So all this hype about IP being a block to commercialising green technology is just that—it’s hype.”
Not everyone agrees. During discussions on the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen last year, one of the sticking points was the difference between the views of developing and developed countries on the worth of IP in the green technology market.
Eric Lane, IP attorney at Luce Forward in San Diego and founder of Green Patent Blog, says: “Te UNFCCC had a list of different options for weakening or eliminating IP rights. Many developing countries put forward proposals to eliminate rights on carbon-reduction technology or suggested compulsory licensing, and so forth.”
He adds: “Whether patents are blocking deployment of clean technologies in developing countries I can’t say for sure, but what I can say is, look at the major deals happening between clean tech companies in developed countries and their partners in developing countries. In my view, IP rights help the diffusion of clean tech.”
Horton agrees: “Te argument is that IP will block the effective adoption of a technology in developing countries. Firstly, no one has identified a specific example to support this
argument. Our response has been that the purpose of intellectual property is to encourage investment, to give people the confidence to invest large sums of money in unproven technologies in the hopes that the one who discovers the solution will be able to monetise the R&D investment needed to develop any such solution. In the grand scheme of things, new discoveries, increasing efficiencies and more cost-effective solutions are the best and most affordable ways to solve climate change.”
And even if there was some kind of compulsory licensing in certain countries, that may not achieve its objective. Horton asks: “Could you come up with a scenario where you were forced to transfer technology to a developing country? Yes. However, that would disrupt the delicate balance on which the IP paradigm is based. In addition to that, you’ve got all kinds of infrastructure questions that you have to address in those developing countries. And, even assuming you’ve got the infrastructure in place, you may still have quite significant gaps in the know-how associated with some of the most sophisticated green technology products.”
22 World Intellectual Property Review September/October 2010
www.worldipreview.com
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