Global warming is amongst the most pressing concerns that we are facing as a society today – urgent and significant action is needed to address the issue. 22 April is designated by the UN as “International Mother Earth Day”, as a reminder to us that it is necessary to promote harmony with nature and the Earth. Change is needed to restore this harmony – for example the climate deal agreed at COP26 summit in Glasgow provides a number of key commitments for change, including reducing the use of coal, and cutting methane and carbon dioxide emissions. Achieving these reductions must go hand in hand with developments in technologies which provide greener alternatives, or which help us to “clean up” our existing environment.
Intellectual property laws, by granting temporary exclusive rights over the products of intellectual activity, have the power to influence and control innovative products and ideas and their availability. It is therefore important that intellectual property rights be used to their full potential to drive positive developments in green technologies.
Patent protection can be crucial for a company wishing to prevent their new green technological developments from being used by competitors, just as it is in other fields of technology. A patent grants an exclusive right to the patent proprietor, allowing them to prevent anyone else from using their protected invention, thus ensuring that the rightful owner of the invention reaps the reward of their innovation.
There are critics who consider that, on the face of it, granting an exclusive right to one particular applicant for a new green technology, potentially with a 20 year term, would stifle development in the field. In reality the patent system is designed to balance the conflicting considerations of ensuring adequate rewards for applicants for their new and inventive ideas, with a public interest in the dissemination of these new technologies, to enable further developments.
Thus a bargain is struck – the applicant can receive an exclusive right over their invention, but this is in exchange for filing a patent application which is published after 18 months, and which must disclose the invention in sufficient detail that it could be carried out by a “skilled person” in the field. This helps the idea behind the invention to be spread, rather than being kept as a secret, so as to allow further developments based on the idea. Thus patenting of green technologies can encourage further innovation – both by ensuring that new developments are made available to the public, and by motivating this innovation by ensuring that applicants are able to benefit from their inventions.
Takachar, an initiative which was awarded the Earthshot Prize in the ‘clean our air’ category in 2021, seeks to tackle climate change by transforming biomass into saleable products. Takachar is the applicant for two pending international “PCT” applications. The patent pending status afforded by these applications should help attract investors to the technology, in turn ensuring that the technology is scaled-up and becomes more widely known, whilst also providing reassurance to investors that future patents, granted based on these applications, will prevent copying from competitors.
Licensing of green patents allows green technologies to be more widely used and opens up further pathways to innovation. Some countries, including the UK, provide a mechanism by which patent proprietors can publicly declare that they are willing to license their technology to any interested party – the proprietor offers a “licence of right” to anyone who asks, the terms of which are agreed or determined by the UKIPO. Such mechanisms could be used by companies to help counteract the potentially restrictive effect of exclusive rights on further technological developments. However, by agreeing to this the patent proprietor loses the right to refuse to give a licence. Alternatively, a company can simply advertise that a patent is available to be licensed, without committing themselves to offering a licence of right. Any open licensing approach can help to stimulate technical developments rather than dominant players stifling innovation.
Patent holders can even act altruistically, allowing their patents to be available royalty-free. Perhaps the most well-known example of this came in 2014, when Elon Musk of Tesla announced that Tesla would not enforce their patent rights against anyone who used their technology in “good faith”. The “good faith” condition is somewhat restrictive, requiring that the third party does not assert their own intellectual property rights against Tesla or any other party, oppose Tesla’s patents, or copy Tesla’s designs – but in keeping with the ethos of an open source technology community.
The importance of patenting to green technologies is reflected in a recent Report published by the European Patent Office (EPO) and the International Renewable Energy Agency (IRENA) – Patents and the energy transition: global trends in clean energy technology innovation, published in April 2021. Data presented in the report shows that the number of international patent families for inventions related to low-carbon energy technologies around the world grew by an average rate of 3.3% per year between 2017 and 2019, and in fact has largely been rising for the past two decades.
Patent rights are far from the only intellectual property rights which can benefit green technologies and their development. Certification and collective marks, together with trade marks, can be vital to allow consumers who wish to make more environmentally friendly choices to recognise the origins of the goods they are purchasing.
Trade marks can be used by particular brands to indicate their own goods, and to build brand reputation. Collective marks indicate that goods or services originate from members of a trade association, whilst certification marks are a specific type of trade mark which indicates that goods or services meet a certain standard or have a specific characteristic, where the owner of the mark defines those characteristics. One recognisable example is the green frog certification seal of the “Rainforest Alliance” which indicates that the goods bearing the mark originate from a certified supplier, whose methods support the Rainforest Alliance’s “three pillars of sustainability” – social, economic and environmental.
As with patents, there has also been a rise in filings for “green” trade marks in recent years. A September 2021 report Green EU trade marks – Analysis of goods and services specifications, 1996-2020 from the EUIPO shows that the filing of trade mark applications containing at least one green term has been increasing consistently since 2014 and, apart from a slight dip between 2011 and 2014, has been increasing for all of the past two decades.
There are various Intellectual Property initiatives, which are intended to encourage the development and the patenting of new environmentally-friendly technologies.
A number of countries, including the UK, offer accelerated processing of patent applications relating to environmentally friendly technologies. The UK IPO “Green Channel” accelerated processing scheme allows an applicant to request acceleration of any of search, examination and publication of their UK patent application, on the grounds that the invention has some environmental benefit.
Another initiative to encourage green innovation is the “WIPO GREEN” online platform for data exchange, established by the World Intellectual Property Organisation. This initiative encourages users to upload technology solutions to the WIPO GREEN database so that technological partnerships can be formed. This service does not require a patent application to have been filed for the uploaded technology, but is rather an effort to encourage dissemination of new green technologies to further innovation.
Here at Dehns, we see more and more of our clients working on environmentally-friendly improvements to their products and services. It was announced in October 2021 that Collins Aerospace and Pratt & Whitney are committed to a goal of achieving net-zero civil aviation carbon emissions by 2050. Their patent portfolio covers developments in hybrid electric propulsion as well as improving operational efficiency for all engines. Meanwhile Equinor’s Hywind in Scotland is the world’s first floating wind farm, powering around 36,000 British homes.
New innovation in the area of green technologies is critical to tackling global warming, and intellectual property rights have a key role to play in both encouraging, and protecting, these innovations.