3. IPRs and the Move to a Greener Economy

3.1. IPRs as an Incentive for Green Technology

IP can incentivise the development of green innovation – technology that improves environmental outcomes. IPRs generally provide incentives to innovators to make their innovations publicly available and disclose information about them. Experimental use of disclosed information can stimulate further innovation while the limited monopoly conferred on IPR owners, in which they can prevent other uses of their patent or design for a certain period or restrict use of trade marks or copyright protected information in relation to their innovations, enables them to maximise return on their investment. The exception to this is confidentiality, which protects information that has been disclosed where an obligation of confidence can be inferred. This permits protection of trade secrets and know-how and can limit access to knowledge that is important to climate change. For example, data about how positioning of a patented solar panel system impacts energy collection efficiency could be kept by a patent owner as a trade secret because this information was not necessary to meet patent disclosure requirements for describing the invention. This might mean that the environmental benefits of this technology are not maximised.

The positive role that IPRs can play in addressing climate change and promoting a more environmentally sustainable future was acknowledged by the World Intellectual Property Organisation (‘WIPO’) when its Green Project was established in 2013. This project focuses on encouraging collaboration, technology transfer and open innovation, all significant WIPO goals to attempt to address climate change.^[1] WIPO is committed to the view that IPRs contribute significantly to the development and diffusion of new energy-saving green technologies, noting that inadequate IP protection compromises the diffusion of technology and therefore sustainable innovation and practices grow further out of reach.^[2]

While IPRs are currently being used to protect green innovations and thus provide an incentive for developing sustainable innovation, there is no clear significant positive relationship between IP and the diffusion of sustainable innovation.^[3] A well-designed IP framework can enable a fundamental shift towards sustainable production and consumption by promoting sustainable practices — for example, through incentive-driven IPRs such as green patents, green trade marks, labelling and green design practices. However, prominent Global South scholars, non-government organisations and activist groups have highlighted the potential for global technology companies to use their IPRs to create further monopolies over new climate-friendly technologies.^[4] While compulsory licences are supposed to operate to ensure that IPRs do not create inequities, fair and equitable access to new IPR protected technologies, developing nations experience greater hurdles in implementing and enforcing compulsory licensing for new emerging green and climate-friendly technologies.

Without a doubt, green innovations and green patents will contribute to significantly reducing the amount of new material added to the economy and IPRs provide incentives for the development of green technologies and green patents.^[5] The International Patent Classification has a specific IPC Green Inventory, which sets out the patent classifications that constitute Environmentally Sound Technologies.^[6] It has already been implemented in the UK and Australia (and temporarily enacted in the United States)^[7] to fast-track green patent applications. In 2009, the UK, US and Australia established programs to fast-track green patent applications, thereby meaning the time to get a patent was significantly reduced from several years to a few months.^[8] While patent law allows for the refusal of patents on ordre public, public policy and morality grounds, domestic implementation such as Australia’s exclusion of patents ‘for an invention the use of which would be contrary to law’ is unlikely to exclude patents for environmental concerns.^[9] If these grounds were used to do this, this would introduce a drastic change into patent law for innovations that can have harmful environmental impacts. Alternatively, there is room for IPRs to provide further incentives to foster green patents by rewarding green technology inventors for making repair-friendly innovations.^[10]

Although green innovations and inventions do not have a single across-the-board mark designated at this stage, more and more green trade marks are being registered, which can be taken as anecdotal evidence for the existing marks having a positive impact.^[11] Eco-labelling has also been recognised as a positive regulatory step in supporting consumers in their attempts to make purchasing decisions in line with the aims of sustainability and on the side of the companies, it signals the company’s corporate social outlook and even acts as a commercial guarantee.^[12] Although protection depends on appearance rather than functionality, design protection is also playing an important role in the context of clean energy products, as these rights can help to support the creators of such products and achieve clean energy policy aims.^[13] Some exemplary circular business models include designing goods with a long life, which results in ‘greater reuse; greater repairability, which can support the growing remanufacturing industry; and allowing for the easy recovery of materials when a product is eventually recycled’.^[14] Support is also growing for design for disassembly and ‘design for repair’, which ‘refers to a set of design efforts to facilitate fixing devices by end-users and repair shops during the initial product’s life cycle’.^[15]

3.2. IPRs as a Barrier to Green Innovation Access

IPRs can also pose a barrier for access to innovation that addresses problems related to climate change. Copyright and design law can place barriers on the ability to keep products in use, reducing e-waste which is a significant contributor to climate change.^[16] The monopoly a patent confers can mean that innovation is not available or not affordable in certain jurisdictions. Australian patent law includes mechanisms to permit compulsory licences to be issued where negotiations with a patent holder have been unsuccessful, permitting an applicant to use a patent and pay the owner a court-determined royalty.^[17] There are also provisions for Crown use^[18] and emergency use.^[19] The need to limit access barriers is also recognised in international law: TRIPS Article 31 permits use of a patent without the authorisation of a patent holder in certain circumstances, including public non-commercial use.

Not all innovation will meet the patentability thresholds necessary to receive IP protection, including manner of manufacture, novelty and inventive step.^[20] Third parties can bring oppositions to the grant of patents that do not meet these requirements^[21] and even if a patent is granted, it can be revoked if courts later find that these requirements are not met.^[22] Similarly, for registered designs that protect the appearance of a product to be certified, they must meet standards of newness and distinctiveness compared to the prior art base and can be subsequently revoked if these standards are not met.^[23] Registered designs can also be subject to compulsory licences^[24] and Crown use,^[25] including emergency use.^[26] Governments or third parties could use these mechanisms to advance climate change objectives if, for example, the visual appearance of clean energy technology such as solar panels or wind turbines subject to a registered design is considered so appealing that it will encourage widespread use of this technology.^[27]