How patent law supports the fight against climate change

Green tech­nol­o­gy will be cru­cial in the fight against cli­mate change. This gives par­tic­u­lar impor­tance to patent law, which ensures inno­va­tors can pro­tect and exploit their inven­tions. So how are intel­lec­tu­al prop­er­ty (IP) agen­cies sup­port­ing sus­tain­abil­i­ty?

Some have already act­ed, imple­ment­ing spe­cial treat­ment for patent appli­ca­tions in green tech­nol­o­gy. In May 2009, for exam­ple, the UK Intel­lec­tu­al Prop­er­ty Office (UKIPO) intro­duced the ‘Green Chan­nel’, which offers an accel­er­at­ed review of patents for tech­nol­o­gy that ben­e­fits the envi­ron­ment. Before that year was out, Aus­tralia, Israel, Japan, the Repub­lic of Korea, and the US had launched sim­i­lar fast-track schemes, fol­lowed by Cana­da in 2011, Brazil and Chi­na in 2012, and sub­se­quent­ly Tai­wan. 

Such schemes acknowl­edge the grow­ing impor­tance of green inno­va­tion. Accord­ing to fig­ures from the World Intel­lec­tu­al Prop­er­ty Orga­ni­za­tion (WIPO), there’s been a sharp rise in patent appli­ca­tions world­wide for green ener­gy and ener­gy-effi­cient tech­nolo­gies under the inter­na­tion­al Patent Coop­er­a­tion Treaty (PCT). These were up from 7,804 in 2006 to 16,947 in 2020. Japan leads the way for appli­ca­tions by some mar­gin, fol­lowed by the US, Ger­many, the Repub­lic of Korea and Chi­na.

The rules gov­ern­ing such fast-track process­es dif­fer by coun­try. In the UK, they’re rea­son­ably straight­for­ward, says Jonathan Hig­gs, direc­tor, patents at Mur­gitroyd, a law firm that spe­cialis­es in the area. “Appli­cants must make a rea­son­able asser­tion that their inven­tion has an envi­ron­men­tal ben­e­fit and request accel­er­at­ed treat­ment,” Hig­gs explains. “Some­times a sim­ple state­ment, like the inven­tion is for a solar pan­el or wind tur­bine, will be suf­fi­cient. Oth­er inno­va­tions may need more expla­na­tion.”

Some fast-track sys­tems lead to real-time sav­ings. “The gen­er­al patent appli­ca­tion process in the UK is pret­ty good,” Hig­gs says. Often the first search and exam­i­na­tion report – offi­cial feed­back on whether a claimed inven­tion is new and inven­tive – can be pro­duced with­in six months of fil­ing, though this can be reduced to three months for a green appli­ca­tion. 

Surging interest

Such prompt­ly issued UKIPO search and exam­i­na­tion reports are a boon. They help appli­cants decide whether to invest in patent pro­tec­tion in oth­er coun­tries and pro­vide a first indi­ca­tion of the scope of UK patent pro­tec­tion avail­able to them. Green patents can be grant­ed with­in six to nine months if any objec­tions are dealt with quick­ly, where­as the nor­mal process could take two years or even longer, says Hig­gs. 

The fast-track process is sim­i­lar­ly effec­tive in oth­er coun­tries. Brazil saw 118 requests for accel­er­at­ed appli­ca­tions for green tech­nolo­gies between Jan­u­ary 2020 and March 2021, with a patent for a green inven­tion pos­si­ble with­in eight months. 

IP offices else­where also see steady streams of appli­ca­tions. IP Aus­tralia has received 106 requests for expe­dit­ed treat­ment for green tech­nolo­gies since 2016, while the Cana­di­an Intel­lec­tu­al Prop­er­ty Office saw 595 since 2011. 

Where no ded­i­cat­ed fast-track pro­cess­ing sys­tem exists for green tech­nolo­gies, it may still be pos­si­ble to expe­dite patent grants through gen­er­al accel­er­a­tion pro­grammes. The Euro­pean Patent Office (EPO) was estab­lished under the Euro­pean Patent Con­ven­tion (EPC) and enables enter­pris­es to obtain patent pro­tec­tion in 44 coun­tries. It has an accel­er­at­ed process for all tech­nol­o­gy sec­tors, mean­ing green inven­tions will often qual­i­fy. And while the US Patent and Trade­mark Office (USPTO) dis­con­tin­ued its Green Tech­nol­o­gy Pilot Pro­gramme, it offers oth­er avenues for green inven­tions to receive accel­er­at­ed treat­ment. 

Aside from the tax relief that enter­pris­es can achieve through a patent, the prac­ti­cal impact of expe­dit­ed treat­ment may depend on the size of the appli­cant. “Large com­pa­nies can often build the timescale for appli­ca­tions into their com­mer­cial pro­grammes,” says Hig­gs. “But for small­er organ­i­sa­tions and inven­tors, a quick­er patents process can make a sig­nif­i­cant dif­fer­ence to gain­ing invest­ment or in nego­ti­at­ing licence agree­ments and get­ting their prod­uct into the mar­ket­place,” he adds. 

A complex environment

How­ev­er, not all appli­cants want their patents to be grant­ed rapid­ly. “There can be sound rea­sons why organ­i­sa­tions want to allow the usu­al pro­ce­dure to take its course,” says Sul­li­van Foun­tain, a part­ner at IP law firm Keltie. For exam­ple, while a grant is pend­ing, the scope of the patent isn’t fixed and is less clear to com­peti­tors. 

“You have to exam­ine each case to deter­mine the best way for the client to pro­ceed,” Foun­tain says. “But fast-track schemes for green patents are good tools to have in the tool­box if it makes sense com­mer­cial­ly for a patent appli­cant to get a patent grant­ed quick­ly.” 

IP agen­cies offer var­i­ous oth­er mea­sures to fos­ter sus­tain­abil­i­ty inno­va­tion. WIPO launched WIPO Green in 2013, an online plat­form that enables var­i­ous play­ers in cli­mate change tech­nol­o­gy to con­nect and col­lab­o­rate. In 2020 it relaunched a pro bono pro­gramme for legal sup­port for those work­ing in the field. 

WIPO Green holds inter­na­tion­al busi­ness sem­i­nars, pub­lish­es a newslet­ter and broad­casts IP webi­na­rs. It will soon release an IP man­age­ment check­list to help green enter­pris­es assess their IP strate­gies. 

Mean­while, the EPO has estab­lished a ded­i­cat­ed clas­si­fi­ca­tion scheme for green inven­tions, mak­ing it eas­i­er for users to search its vast data­base and retrieve patent doc­u­ments that cov­er these tech­nolo­gies. 

While green tech­nol­o­gy inno­va­tion is usu­al­ly dri­ven by com­mer­cial and polit­i­cal fac­tors, IP law plays a cru­cial role in sup­port­ing green entre­pre­neurs. “Schemes like the UKIPO’s Green Chan­nel can encour­age inno­va­tion and they send the right mes­sage,” says Hig­gs.