CleanTech & Clean Energy: Innovation vs Patents

Check out Field Law’s CleanTech and Clean Energy practice area.
Is innovation encouraged or stifled by the current patent regime? It’s an old debate which is constantly being reignited. An article by Prof. Guaragna from UBC’s Sauder School of Business argues that the monopoly granted to patent holders has the effect of choking innovation and development in battling climate change, because inventors have to tiptoe through a patent minefield in order to bring new “green technologies” to market. In international negotiations in the past – notably in Copenhagen in 2009 – there was a controversial call to deny patent protection for inventions that help mitigate climate change. The idea is that making these inventions open will ensure the technologies are implemented and used, rather than having them act as roadblocks to development.  

Since 2009, developing countries (including Canada) have moved in the exact opposite direction – by fast-tracking cleantech patent applications to remain competitive in the international marketplace (See: Update: Green Technology Patents in Canada).

Prof. Guaragna argues that patent reform is unlikely to strip away patent rights in the near future, but “open-source” licensing can provide a solution that functions within the existing patent regime. Open source licensing is well known in the software industry, but is in its infancy in other fields such as climate change and life sciences.  Patent pooling can be used as an open source licensing tool:

  • Patent pooling has been successful in commercial applications – for example the DVD licensing pool licenses the dozens of patents for DVD technology – DVD-ROM drives, players, decoders, and discs; a similar pool was established for RFID technology.  
  • Patent pooling is typically voluntary but has also been put to effective use by the US government when it mandated pooling of aircraft patents in 1917 as the US entered the First World War.
  • The Medicines Patent Pool has been established by the international community to deal with HIV treatment in the developing world.
  • Can a CleanTech Patent Pool be next? The Eco-Patent Commons is the closest thing so far… but Canada is not a contributor.

Related Reading:

  1. Open Source Resources
  2. WIPO review of CleanTech patent pools [PDF]
Calgary – 07:00 MST
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