Green Technology Patents and Climate Change - Is it Finally ‘Easy Being Green?’

Green Technology Patents and Climate Change - Is it Finally ‘Easy Being Green?’

By Fergus Maclean, Bachelor of Arts (International Relations) and Bachelor of Business Administration, Australian National University & Katharina Neumann, Deputy Editor, SS Law and Political Science

The latest Intergovernmental Panel on Climate Change (IPCC) report on the effects of climate change concluded with the assertion that “any further delay in concerted anticipatory global action on adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a liveable future.” This announcement reinforces the notion that climate change needs to be fought on all fronts. One such front is green technology, which combines technology, science, and innovation to allow human production and the natural environment to co-exist in a mutually inclusive way. Examples of green technology range from wellknown and widely adopted innovations such as LED lights, wind turbines, and solar panels, to more niche developments such as organic farming techniques that reduce soil exhaustion, or using concentrated red seaweed in cattle feed, which has the capacity to reduce methane emissions by over 90 per cent. As developing climate-friendly innovations has become a key priority in national and international environmental policies, intellectual property regimes play an increasingly important role in securing a safe environmental operating space. In particular, patent law is one of the most important regulatory vehicles promoting technological innovation in the sphere of climate policy. Patent grant procedures can often extend over several years - a cumbersome process that is criticised as stifling innovation. It is submitted that fast-tracking green technology patents is a key approach to encourage innovation in this sector and to send the right message in the fight against climate change.

Patents are time-limited rights that prevent all other inventors from making, using, selling, or importing the patented inventions, ensuring that innovators can protect and utilise their inventions. They act as a tool for forwarding progress in science, technology, and industry. Patents grant limited-term monopoly rights in respect of new, innovative, and industrially beneficial inventions, thereby restricting the use of these inventions in the short run but creating societal payoffs in the long run. This encourages future innovation and development as they provide inventors with a competitive advantage. However, as patent applications are extremely detailed and undergo many steps of consideration by different expert groups, the process of obtaining a patent can often take years. In this regard, programmes for fast-tracking patent applications allow for accelerated examination of patent applications, aiming to bypass these long waiting periods.

Countries such as the UK, Australia, Israel, Japan, Brazil, and the US have launched fast-tracking schemes for green technology patents, which can have real benefits in the fight against climate change. The World Intellectual Property Organisation (WIPO) states that fast-track procedures reduce the time from filing to grant by several years compared to ordinary examination. This acceleration allows patent applicants to licence and use their technologies earlier. Thus, green technology can become effective within a shorter time frame, leading to reduced emissions and expediting the effectiveness of green inventions. Further, such a procedure allows the early publication of the patent which increases the diffusion of the technical knowledge of the patent. An LSE study entitled Fast-Tracking ‘Green’ Patent Applications has shown that fast-track patents receive more than twice as many citations as patents of similar value filed through the traditional route in the short term. This diffusion of knowledge is welcome due to the urgency of the climate crisis as it increases development and innovation in the green tech sector, which leads to expansion of this sector, producing practices to combat

climate change. Lastly, fast-tracking procedures have inherent benefits for the applicants as a fast patent grant will provide greater confidence in the technology, helping to attract investors, and aiding overall growth. This in turn increases the ability of the applicant to develop the technology further.

Overall, expediting the reward of time-limited rights for green technologies will lead to increased innovation within the sector which is crucial in the fight against climate change.

The UKIPO Green Channel exemplifies the potential of fast-tracking green patents in practice and has become the second most popular patent fast-tracking system in the world. Ahead of its time, the Green Channel was initiated by the UK and China as a part of a routine Economic and Financial Dialogue in May 2009. With no legislative changes required, the Green Channel processing system was adopted one day later, allowing for patent processing times to be reduced from 2-3 years to 9 months where that patent request was for a climate-friendly innovation.

David Lammy, Minister for Intellectual Property at the time, remarked at the outset that “climate change affects us all and any actions we take now to improve low-carbon technology has got to be a positive for both the environment and our future economic competitiveness.” Today, this statement has never been more relevant. The fast-tracked process is even more effective than anticipated, with some green patents being filed and executed within 3 months; an 87.5 per cent decrease from former processing times. This has had a positive economic and environmental impact, with companies implementing efficient and environmentally clean technology faster. The process to achieve a Green Channel acceleration is relatively straightforward. Jonathan Higgs, a director at Murgitroyd European Patent Attorneys, explains that “applicants must make a reasonable assertion that their invention has an environmental benefit and request accelerated treatment.” A simple statement may suffice in applications that have a self-evident environmental benefit, such as one involving renewable energy innovations like solar panels. Where the technology does not have an obvious link to environmental outcomes, this must be explored and clarified within the application.

The Green Channel presents a ‘two birds with one stone’ opportunity for companies and the UK Government. On the one hand, technologies are legally protected and implemented into operations faster and with significantly lower processing times. On the other hand, the reduced time incentivises green technology, holding a variety of other benefits for both the public and private sectors. On the surface and under the microscope, Higgs asserts that “schemes like the UKIPO’s Green Channel encourage innovation and send the right message.”

In contrast, no such fast-tracking procedure exists under the pan-European EPC (European Patent Convention). In Europe, patent rights are confined to national states but the EPC harmonises the means of obtaining and regulating national patent grants. Under the Convention, the European Property Office operates to fulfil these ends but EPC patents remain bundles of national patents, as validity and enforcement are completely subject to national law. As the ECP only regulates the procedure for obtaining patents, to have an effect the right must be validated by each national state. Although under the Convention it is possible to expedite patent grants through general acceleration programmes such as the accelerated process for all technology sectors for which green inventions will often qualify, it is submitted that considering the inherent advantages of a separate green patent fast-tracking system, such a system would be well worth adopting. Additionally, although the EPC is not part of the EU institutional framework, many of its members are EU member states, and EU environmental policies and regulations increasingly push the EPC to adopt a climate-conscious approach. Thus, it is submitted that the UK’s approach may be easily translated to the EPC as its wide-scope concept of green technology and shifting liability on applicants to submit their ‘green assertions’ will fit its institutional structure and prevent a sharp increase in patent backlogs.

However, the proposed fast-tracking procedure also entails several challenges. First, deciding whether to use a fast-tracking initiative can be time consuming and costly as applicants must analyse a number of different rules, determine whether their new idea meets each programme’s eligibility requirements, and draft different claims for each programme. Second, since patent applications must be disclosed when the patent is granted, an early grant could result in an earlier publication date, which could limit the competitive advantage associated with using the technology. Lastly, licensing periods associated with patents may not be fully utilised, as there is no opportunity to use the processing period to plan for operational changes and implementation of the new technology. However, the majority of these drawbacks are situational. Where circumstances around fast-tracking appear costly, it is important for businesses to consider the material benefits of protecting their technology. Implementation periods that may have taken years previously can now be significantly shorter - a benefit that may outweigh the initial cost of consideration. Further, it is submitted that the external risk of another company using publicly available information to develop new technologies is rarely realised in practice. Finally, the timing of implementation is an unavoidable internal risk for a business, and this is routinely realised and mitigated in other ways that are separate from the patent processing time.

Ultimately, fast-tracking green patents ensures increased innovation in the green technology sector by rewarding inventors with the exclusive rights to protect and develop their inventions expediently.

Such procedures further send the right message in order to encourage development in the sector. Overall, the scale of emission reductions required to combat the climate crisis raises the necessity of a holistic approach from both the technologies and the mechanisms that support them. An unconventional but effective way to address the crisis is through patent law, backing innovations that address climate change. Indeed, in this instance, it is actually easier being green, with fast-tracking procedures making a real difference to combat climate change.