Since last summer, when wildfires blazed through my hometown of Kelowna, I’ve been thinking a lot about the role of the law in supporting action to mitigate climate change. And IP law has a big role to play.
Decreasing global CO2 emissions will require not only mass deployment of existing clean technologies, but also the development of innovative technologies and solutions to decarbonize hard-to-abate sectors like industry and transportation. The development of new technologies implicates patent law, which shapes not only firms’ incentives to innovate, but also the cost and accessibility of their innovations. This raises the question: should patent laws in Canada and elsewhere be strengthened in any respects to effectively incentivize research and development in cleantech, and/or should they be relaxed in any respects to enable the diffusion of cleantech worldwide?
This is an enormous question to tackle (especially during exam season), so for the purposes of this post I’ve just compiled a few resources for anyone who might be interested in the topic.
Current Initiatives to Expand Patent Protection
The Canadian Intellectual Property Office (CIPO) and the US Patent and Trademark Office have made moves to strengthen and expand protections for clean technologies under patent law. Notably, both offices have launched programs to expedite patent applications for cleantech.
To qualify for the Canadian program, the patent applicant needs only to submit a statement with an examination request stating that the patent application relates to a technology “the commercialization of which would help to resolve or mitigate environmental impacts or conserve the natural environment and natural resources.” According to an analysis by BLG, CIPO assumes this statement to be true, and makes no determination as to its validity so long as the statement clearly accompanies the examination request.
To qualify for the American program, applications must contain one or more claims to a product or process that mitigates climate change by being designed to: (a) remove greenhouse gases already present in the atmosphere; (b) reduce and/or prevent additional greenhouse gas emissions; and/or (c) monitor, track, and/or verify greenhouse gas emission reductions.
In addition, the government of Canada has recently launched its Innovation Asset Collective program, designed to assist small- and medium-sized enterprises in the cleantech industry with their patent and other IP needs. The IAC’s services are designed to complement those offered by lawyers.
Potential Drawbacks of Expanding Patent Protection
There are some potential drawbacks associated with expanding patent protection for clean technologies, suggesting that such reform efforts should be undertaken with caution.
For instance, the United Nations Conference on Trade and Development has noted that patent law presents barriers to the deployment of cleantech in developing countries, and has published a report proposing that some countries should be allowed to produce and supply certain key green technologies without the consent of the patent holder, just as some countries were permitted to do with COVID-19 vaccines during the pandemic.
A discussion paper published in 2017 by Canada’s federal Standing Committee on Natural Resources pointed out that strengthening and expanding patent rights could decelerate the development of new technologies if companies act to defend their research advantage against competitors, instead of marketing their innovations in a way that could benefit other industry stakeholders.
Furthermore, some scholars question whether expanding and strengthening the rights of patent holders actually results in increased research investments. While economists have not yet reached a consensus on this issue, the presence of the uncertainty is relevant to lawyers and legislators considering how patent law should be reformed and applied to strike the correct balance between incentivizing innovation and promoting public access to the benefits of innovation.
This article from the Harvard Journal of Law and Technology summarizes the various arguments for and against using patent law as a lever to drive the adoption of cleantech, concluding only that “as innovation-based solutions to social problems grow in importance, patent law will increasingly come under attack.”
If anyone has previous experience/knowledge on this area of research, I’d love to hear your thoughts!
Communications Law