A recent article written by Jonathan M.W.W. Chu and published in the Washington and Lee Journal of Energy, Climate, and the Environment takes another look at the role of intellectual property in green technology innovation.

Entitled “Developing and Diffusing Green Technologies: The Impact of Intellectual Property Rights and their Justification,” the piece covers much familiar ground including discussions of the meaning of green technology and traditional justifications for IP protections.

The article also touches on many green IP and climate change topics previously explored in more detail elsewhere such as the notion of technology as the solution to global warming, access to green technologies, international transfer of green technologies, and green patent fast track programs.

The main contribution of this piece is to break down green IP into what Chu calls “Technological IP” and “Non-Technological IP,” a division he draws from the TRIPS Agreement and an IP and climate change book by Professor Matthew Rimmer.

According to the article, Technological IP are rights in green technology, including patents, copyright in software code, semiconductor chip protection, trade secrets and know-how, while Non-Technological IP are rights in relation to green technology, such as trademarks around such technologies (what I call eco-marks), design rights, and other copyrights.

Chu posits that the two categories of green IP have different impacts on development and diffusion of green technologies.

On Technological IP and patents, the article stipulates that continued innovation will lead to lower costs but says “the more immediate and direct impact” of patents “still appears to negatively impact diffusion of the technology.”

More particularly, the article concludes that we are heading toward situations in which green patents will block key technologies:

[W]ith green technologies becoming more refined and focused, the narrowing of available technologies will increase the likelihood of a patent covering and controlling a single technology.

On the one hand, Chu may be right that continuing incremental improvements could result in patents that cover a “single” technology. On the other hand, would that really be a problem?

For a very focused, and presumably narrow, patent the ability to control that patented technology means little when there are older, broader related technologies out there. Also, the narrower and more focused a patented invention is, the easier it is to design around it.

The piece also cites copyrights on ”Green Operation Software” necessary for operation of green technologies as an example of Technological IP that could hinder their development and diffusion.

Chu may be on firmer ground here, and the AMSC-Sinovel civil litigation in China and criminal case in the United States (see, e.g., here and here) involving software code for wind turbine control systems demonstrate the impact such copyrights can have in the cleantech industry.

On the other hand, copyrights in software protect only the specific code sequences, which can be written in different non-infringing ways to achieve the same functionality.

The article discusses green brands, including trademarks and certification marks, and concludes that they are having a positive impact on diffusion of green technologies. On this score, the piece notes that trademark rights translate into revenue (but so do patent rights, I would add) that can be used for further R&D, and the associated marketing is necessary for the diffusion of innovation.

I agree that certification marks such as ENERGY STAR are largely positive and effective in promoting green innovation by rewarding manufacturers that meet energy efficiency standards and aiding sales of products that lead to energy savings.

The article’s treatment of design rights is thin and conclusory, positing that they “should not pose any serious hurdle” to green tech innovation. The piece would have benefited from a more thorough and balanced discussion on this, including consideration of design patent litigation, such as the expensive battle between Nichia and Seoul involving four LED design patents, which included allegations of antitrust violations.

One need only look at the Apple-Samsung smartphone wars to understand that design patent rights can be very powerful.

While it could have been developed further, I like this article’s treatment of green IP as bifurcated into Technological IP and Non-Technological IP. It provides an interesting prism through which to view green IP and its role in green innovation.

Eric Lane is a patent attorney at McKenna Long & Aldridge LLP in San Diego and the author of Green Patent Blog. Mr. Lane can be reached at elane@mckennalong.com

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Walter’s contributions to CleanTechies over the past 4 years have been instrumental in growing the publications social media channels via his ongoing editorial and data driven strategies. He is the founder and managing director of Sunflower Tax, a renewable energy tax and finance consultancy based in San Diego, California. Active in the San Diego clean technology community, participating in events sponsored by CleanTech San Diego, EcoTopics, and Cleantech Open San Diego, Walter has also been a presenter at numerous California Center for Sustainability (CCSE) programs. He currently serves as an adjunct professor at the University of San Diego School of Law where he teaches a course on energy taxation and policy.

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