The latest climate change topic which illustrates the wide spectrum of views and interests is that of intellectual property. Over recent months a collection of separate initiatives have developed to consider the impact of intellectual property on climate change with vastly differing approaches. Some changes in the intellectual property landscape have already been implemented as a result. Businesses involved in the climate change industry are already adept at managing legislative regimes around the globe but will need to be fleet of foot to manage the opportunities and significant risks which these IP initiatives present.
The argument is highly conceptual, and relates to the role of intellectual property in incentivising (or restricting) the development of climate change technologies.
At one end of the scale, a number of initiatives focus on intellectual property as a key incentive for businesses to develop and exploit technologies which will benefit the environment. In May 2009 the UK government and UK intellectual property office launched their "Green Channel" initiative. This process allows a fast track examination and application process for patents which are claimed to have an environmental benefit. The thinking here is that easier access to patent protection will encourage businesses to develop and market environmentally beneficial technologies, thereby applying the profit motive to improving the state of the planet. Although the scheme has only been in place for a short number of months, it appears that the test for establishing potential environmental benefit is not particularly high and therefore any manufacturer or developer of innovative technologies directed at climate change applications could be well advised to take advantage of this process.
A similar initiative has been implemented by the US Patent and Trade Mark Office.
However, a number of other initiatives take a diametrically opposed view to the role of intellectual property in promoting climate change technologies. They see intellectual property and patents in particular as presenting obstacles to the use of climate change technologies in promoting the health of the planet. Climate change businesses, it is argued, are motivated by profit and not by a desire to improve the planet. As a consequence, these businesses are accused of limiting distribution of their beneficial technologies using intellectual property to ensure these resources remain scarce and highly profitable.
It would be easy to ascribe these views to the social activist groups that litter the climate change landscape, but the reality is that these views are being put forward by powerful organisations with real ability to implement some of their opposed policies.
In May 2008 the President of the European Patent Office made a number of statements questioning the role of patent in climate change technologies including that "the patent system must not become an obstacle to the development of green technologies in Europe". Suggestions from the President included changing European patent law that such patent owners of environmental technologies could ask to be paid for the use of their patented technology but would not be able legally to prevent such use. Payments would be subject to some form of regulated pricing.
A similar and perhaps more worrying initiative has arisen in the context of the United Nations negotiations on the UN Framework Convention on Climate Change (UNFCCC). These negotiations require to be concluded by December 2009 and are to create a successor agreement to the notorious Kyoto Protocol. Following a meeting of a working group developing draft negotiating text for this new agreement in June 2009, the latest draft text contains a number of very worrying provisions on intellectual property. Primarily these have been driven by developing countries and most notably the delegations from China and India, but if adopted, these proposals would fundamentally change certain aspects of the intellectual property landscape as set out in the World Trade Organisation's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Some of the proposals included in the latest negotiating text include prohibiting patents for climate related technologies and indeed a proposal to revoke existing patents on such technologies. Compulsory licence schemes (potentially royalty free) for environmentally beneficial technology are also suggested as is the creation of a new international oversight body under the UNFCCC which would look at intellectual property issues arising from environmentally beneficial technologies.
The World Intellectual Property Organisation and World Trade Organisations have both identified the need to look at this area of intellectual property rights and there is no doubt that some of these radical proposals are starting to gather momentum on the international stage. If implemented, these proposals would radically redefine current intellectual property assets in the climate change arena and potentially significantly change the balance of power in the renewables and other industries. For example, windfarm developers who are currently battling with the limited supply of turbine technologies would probably welcome the revocation of patents for such turbines while the turbine manufacturers may have a radically opposite view.
Dealing with climate change is now an industry, and an industry that is heavily dependent on innovative technologies. The economics of developing innovative technologies are heavily dependent on the intellectual property structure around the world. The role of intellectual property in climate change looks likely to become as hotly debated as the role of patent protection for aids medicines in Africa. Small changes have already been made and sweeping changes are being debated by people who have the power to implement them.
Any business involved in the climate change agenda either has huge opportunities or huge risks arising from this debate. While it is likely that the most radical proposals will be watered down, there is no doubt that big changes are on the way and the best businesses will be those who are able to anticipate and respond to those changes.