Ignoring IP: Cancun Climate Change Agreement is Good News for Green Patents

With the close of another round of United Nations Framework Convention on Climate Change (UNFCCC) treaty talks, this one held in Cancun from November 29 – December 10, it is important to look at how green patents fared in the negotiations and the final agreement.

But first, some background.

Last year, when I became aware during the run up to the Copenhagen meeting that intellectual property rights were being debated, the first question that popped into my mind was: why are IP rights even on the agenda in the climate change treaty discussions?

To me, IP seemed tangential at best to the problems of shaping policies to mitigate climate change, taking a back seat to a maximum temperature rise target, greenhouse gas emissions targets, carbon taxes, cap and trade, etc.

Turns out neither the original UNFCCC treaty nor the current Kyoto Protocol expressly mentions intellectual property. However, the treaty text contains the following reference to technology transfer and access:

Parties “shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties . . .”

This passage, at Article 4, paragraph 5 of the UNFCCC treaty, establishes an obligation on the part of the signatories to ensure that developing countries have access to clean technologies. As part of the implementation of this provision, the UNFCCC has encouraged developing country parties to undertake technology needs assessments, and in particular, to “identify the barriers to technology transfer and measures to address these barriers . . .”

Over the years, various meetings of the parties to the treaty produced additional statements, goals, and actions, which consistently framed the debate about how best to mitigate climate change in terms of barriers and obstacles to technology transfer.

The Bali Action Plan of 2007 is a notable example. The Bali plan directed the parties to consider ways to accelerate transfer of clean technologies. One express element of such transfer was the “removal of obstacles to . . . scaling up the development and transfer of technology to developing country Parties in order to promote access to affordable environmentally sound technologies . . .”

This barrier argument gained momentum and clarity in the run up to the Copenhagen meeting in December 2009 as the UN and developing country parties focused on IP rights as the chief barrier to the clean tech transfer. As the preparations for Copenhagen heated up over the course of 2009, proposals were continually put forth to weaken or even eliminate patent rights in clean technologies.

In May 2009, the UNFCCC Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) published its proposed negotiating text that would serve as the foundation document for developing the next round of treaty discussions to replace the Kyoto Protocol after 2012. The AWG-LCA’s text included proposals to weaken or evade patent rights such as compulsory licensing of clean technologies, preferential pricing for such technologies, exempting certain countries from patent protection, and pooling or sharing of publicly funded clean technologies.

The developing country parties followed suit in their proposed negotiating texts, which contained more extreme measures, such as the following:

• mandatorily exclude from patenting climate-friendly technologies held by developed country parties (proposed by the G77 + China)

• revoke in developing countries all existing patents on “essential/urgent environmentally sound technologies” (proposed by Bolivia)

• guarantee access to IP on royalty-free terms for developing countries (proposed by the Philippines)

Proposals such as these perpetuated the notion that IP serves as a barrier to transfer of clean technologies to developing countries (though there is evidence to the contrary, which I’ve discussed here and here).

Despite this push to weaken or eliminate IP rights, the deal signed at Copenhagen made no mention of IP. The only piece of the Copenhagen Accord relating to technology transfer was a vague commitment to establish a “Technology Mechanism” in order to “accelerate technology development and transfer in support of action on adaptation and mitigation.”

Now, back to Cancun. An Intellectual Property Watch article noted that IP rights were being discussed in the run up to Cancun, and that the references to IP rights in the official negotiating text for the meeting appeared mostly in brackets to reflect the disagreement by the parties over these provisions.

This bracketed material included Point 13 of Chapter IV, entitled “Intellectual Property Rights,” which proposed a list of measures “to remove barriers to the development and transfer of technologies arising from intellectual property rights protection.” These included creating a global IP rights pool for climate change, sharing publicly funded technologies, excluding clean technologies from IP protections, and revoking IP protections on clean technologies.

As in Copenhagen, the agreement that came out of Cancun contained no reference to IP. Section IV.B on technology development and transfer fleshed out the objectives, functions and structure of the Technology Mechanism.

Fortunately, the Cancun Accord did not mention any specific IP-related proposals.

In view of the continuing rhetoric about IP rights as a barrier to clean tech transfer and the repeated calls for weakening or eliminating clean tech IP rights, a climate change agreement that ignores IP is good news for green patents.

Eric Lane is a patent attorney at Luce, Forward, Hamilton & Scripps in San Diego and the author of Green Patent Blog. Mr. Lane can be reached at elane@luce.com.