GREEN PATENTS
its patented technology, either through licensing to others or by blocking its competitors.
Te opportunities presented by the lack
of standard reagents and processes are particularly evident in the biofuels area. Most biofuel production processes rely on three distinct ingredients: feedstock, enzymes, and fermentation organisms. Feedstock refers to the starting material from which the biofuel is made, enzymes work to make the sugars and starch in the feedstock more available, thereby decreasing production time and increasing efficiency, and fermentation organisms turn the sugars and starch from the starting materials into fuel.
A large number of choices exist for each of the three ingredients. Consequently, a unique process for biofuel production can be generated by using different combinations of the available ingredients. Tis is demonstrated by the 150 or so patent applications published by the USPTO since 2008 directed to feedstocks, enzymes, and biofuels. Tis abundance of unique ingredients allows tailoring the biofuel process to use feedstock that is locally available, which in turn opens up the potential for multiple feedstocks and processes to become ‘standards’ for particular geographical areas.
Generating and enforcing IP within each of the categories of green energy creates unique concerns which require thoughtful attention. Tere are, however, some considerations that are shared among all these technologies. It is clear that a global strategic plan is needed because worldwide energy consumption is increasing at a fast pace, opening up nascent markets across the globe. In China, for example, energy demands have doubled over the last decade and it has surpassed the US to become the world’s biggest energy user. Te US Energy Information Administration’s International Energy Outlook of 2011 projected that worldwide energy consumption will approximately double by 2035, and that China and India will be responsible for about half of that growth. Consequently, no matter in which specific category of green energy the innovations occur, patent protection in such countries will be vital in order for a company to exploit its technology fully.
However, obtaining patent protection in some jurisdictions can be difficult, especially when living organisms are involved, whether they are plants, animals or microbes. Many countries in Asia, Africa and South America exclude living organisms from patentable subject matter, or have significant exceptions. For example, India excludes genetically modified multicellular organisms from patentability,
along with
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“IT IS CLEAR THAT A GLOBAL STRATEGIC PLAN IS NEEDED BECAUSE WORLDWIDE ENERGY CONSUMPTION IS INCREASING AT A FAST PACE, OPENING UP NASCENT MARKETS ACROSS THE GLOBE.”
Turning again to the example of biofuels, the first patent for a biodiesel process was obtained in 1980 in Brazil, which today is a leader in ethanol generation. Tere are currently several different projects underway in Brazil which use processes developed in Brazil,
feedstock developed in
the US, enzymes developed in Europe and fermentation organisms developed in all of those countries. Tese types of situations are becoming far more common and encourage enforcement of
the associated patents, if only to ensure sustainability of the industry within that country.
processes for their production or propagation, but allows patents on microorganisms
and
microbiological processes. On the other hand, while China does not issue patents for plants or animals that are capable of propagation, whether generated by traditional breeding methods or by biotechnological means, it is possible to patent some processes for making them.
As a result of such differences in patent laws, global protection of
some innovations will
require diverse strategies that are country or region-dependent and that focus on particular aspects of the overall invention. Companies in many different countries are currently pursuing innovations in green energy and will presumably be seeking patent protection within their own borders. Tese applications can serve to guide others and it may be possible to develop a winning strategy by carefully monitoring their progress within the home jurisdiction.
Companies must also consider whether the patents obtained can be enforced. While patent enforcement has traditionally been strong in the US, Europe, Canada, Australia and Japan, many practitioners consider that the enforcement efforts of a large number of nations have lagged behind, although that trend seems to be changing as more countries realise the positive effects that a strong system for IP rights has on business development.
We expect continued strengthening of patent enforcement as innovation becomes more global and more jurisdictions adopt similar standards. So while some nations may not currently have a robust enforcement strategy, that situation could easily change during the life of a patent. We suspect that this is particularly true when multiple innovations are used to accomplish the green energy result within a particular country.
It is clear that green energy is here to stay. What is less clear is how the patent landscape will evolve as more companies choose to pursue innovations in this space. Will a single standard appear within each category of green energy, or will multiple technologies be accepted? And can this new growth area be a force in the movement to harmonise patent laws? Perhaps we should ask Kermit—he’s been around for a while.
Susan W. Gorman is a partner at Birch, Stewart, Kolasch & Birch, LLP. She can be contacted at:
swg@bskb.com
Susan W. Gorman, PhD, is a registered patent
attorney, and
has worked in IP since 1999. She practises primarily in pharmaceuticals, biotechnology, bioenergy, biochemistry and medical diagnostics, and her clients include start-up, mid-size and Fortune 500 companies. As well as obtaining patent
claims, Dr Gorman on patentability, advises freedom to operate
and validity and infringement issues and she has experience in appeals, reexamination, reissue and interference proceedings.
World Intellectual Property Review July/August 2012
39
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