Friday, July 24, 2009

Brazil, India & Other Developing Countries Seek Compulsory License to Steal U.S. Patented Climate Change Technologies

Fighting Climate Change With Patents

By Tim Wilson

Wall Street Journal Europe

July 15, 2009

GENEVA -- World leaders are talking a lot about climate change, not least in their flashy statement on controlling global temperatures at the recent Group of Eight summit in Italy. One of the smarter ways they can put this determination into effect will be to protect the intellectual property of green innovators from a growing onslaught by developing-world politicians and mistaken activists.

Intellectual property rights are the underappreciated link in the environmentalist chain. By rewarding inventors and entrepreneurs, well-enforced patents provide the right incentives for the innovation that will produce technologies necessary to manage climate change. Yet this fact is getting lost. Access to low carbon technologies has become a central issue in international climate change negotiations as rich countries put more pressure on the poor to cut their emissions. Understandably the poor aren't prepared to do so unless they are given cheap access to technologies. Patents are increasingly viewed as the main obstacle to cheap technology transfer.

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So a representative of the Brazilian government, Haroldo Machado Filho, this week told a World Intellectual Property Organization conference in Geneva that leaders should consider the possibility of allowing "compulsory licensing" for green technologies.

This would be a new loophole in international intellectual property rules that would allow developing-country governments to break patents "for the public good"; such a loophole already exists for pharmaceuticals.

In a similar vein, Indian Climate Change Minister Shri Ramesh asserted late last month that access to intellectual property for low-carbon technology is a "global public good." This kind of thinking lays the intellectual groundwork for patent violations down the road.

Most worrying, opponents of patents have succeeded in having included in the current negotiating text for a post-Kyoto agreement paragraphs to undermine patents. The final text won't be finalized until at least the December U.N. Copenhagen meeting, but current proposals range from "compulsory licensing" to the "creation of a global technology pool for climate change" that would socialize intellectual property.

These proposals fundamentally misunderstand why low-carbon technology is expensive. A January report by Copenhagen Economics, a consulting firm, found that the high prices are most likely a result of the immaturity of technologies, not patents. New technologies are generally more expensive when there are fewer products competing in the market. As more technologies are innovated the price is likely to drop. Most promising green technologies are so new they simply haven't had time to decline in price yet.

The Copenhagen Economics report also notes that weakening intellectual property for green technologies would be bad for the developing world countries whose governments advocate such measures. A growing number of patents on these technologies are held by developing-country innovators. China is one of the largest owners of solar and fuel-cell technology patents. The balance is still in favor of developed-world innovators, but the gap is narrowing fast. Allowing entrepreneurs in poorer countries to profit from their discoveries will be good both for the environment and for developing-country economies.

Undermining patents won't help access to technologies, but it will stop the next generation of technologies being invented, and with it a long-term solution to achieving the twin goals of developing countries to reduce emissions and alleviate poverty. Rather than breaking patents, policy makers could re-evaluate tariff regimes and other barriers that can add up to 165% to the cost of some imported green technologies, according to a 2007 World Bank study. The best path to a green future is not to break free-market principles, but to return to them.

Mr. Wilson is director of the Institute of Public Affairs in Melbourne, Australia.


No patents on climate-friendly technologies, says South

SUNS #6718

by Sangeeta Shashikant

Third World Network

June 12, 2009

The Group of 77 and China as well as several developing countries in their individual capacity have ma de proposals calling f or climate-friendly technologies to be excluded from patenting.

In their text submitted Wednesday, the G77 and China proposed that "All necessary steps shall be immediately taken in all relevant fora to mandatorily exclude from patenting climate-friendly technologies held by Annex II countries which can be used to adapt to or mitigate climate change". [Annex II of the Convention contains a list of 24 developed countries with financial obligations].

The "no patents" proposal is one of several other ambitious proposals put forward by developing countries to address the intellectual property barrier to the transfer of and access to environmentally-sound technologies for climate mitigation and adaptation (ESTs).

The proposals were submitted on "Enhanced action on development and transfer of technology", one of the five building blocks of the Bali Action Plan (BAP) adopted by Parties tothe UN Framework Convention on Climate Change (UNFCCC) in December 2007. These proposals were added during the discussion of the text of the Chair of the Ad-hoc Working Group on Long-Term Co-operative Action (AWG-LCA) in the informal plenary on 10 June.

The work of the AWG-LCA is to implement the Bali Action Plan in order to enable the full, effective and sustained implementation of the UNFCCC through long-term cooperative action now, up to and beyond 2012.

Developing countries also called for: (i) the adoption of a Declaration on IPRs and Environmentally Sound Technologies in relevant fora; (ii) the use to the full flexibilities contained in the TRIPS Agreement including compulsory licensing to access intellectual property protected technologies; (iii) steps to ensure sharing of publicly funded technologies and related know-how; and (iv) the creation of a "Global Technology Pool for Climate Change" that ensures access to technologies including on royalty free terms.

The call for bold action to deal with IPRs, an obstacle to the transfer of and access to ESTs, follows heated debate that took place last Saturday, largely along North-South lines.

Developed countries, in particular Japan, Canada, Australia, Switzerland and the US insisted on strong IPR regimes, even opposing the use of compulsory licensing, which is allowed under the TRIPS Agreement (See SUNS #6716 dated 10 June 2009). The developed countries also questioned the need for new institutional arrangements, in particular, the technology mechanism that has been proposed by the G77 and China.

On the other hand, developing countries had argued that there was a need for patent exclusion on climate technologies, given the need for a global and systemic response to address the global challenge of climate change, adding that the current TRIPS flexibilities were inadequate.

The Philippines proposed that: "All necessary steps shall be immediately taken in all relevant fora to mandatorily exclude from patenting environmentally sound technologies which can be used to adapt to or mitigate climate change".

The Philippines also proposed that: "Biological resources including microorganisms, plant and animal species and varieties, and parts thereof that are used for adaptation and mitigation of climate change shall not be patented".

Bolivia proposed that Parties should "take all steps necessary in all for a to mandatorily exclude from patenting in developing countries environmentally sound technologies to adapt to or mitigate climate change, including those developed through funding by governments or international agencies" and "to revoke in developing countries all existing patents on essential/urgent environmentally sound technologies to adapt to or mitigate climate change".

It also proposed text that "nothing in any international agreement on intellectual property shall be interpreted or implemented in a manner that limits or prevents any Party from taking any measures to address adaptation or mitigation of climate change, in particular the development and transfer of, and access to technologies".

Other developing countries have also made proposals reflecting a similar sentiment as follows:

"[[LDCs][Countries vulnerable to the adverse effects of climate change] should be exempted from patent protection of climate-related technologies for adaptation and mitigation, as required for capacity building and development needs.

[Genetic resources, including germplasms of plant and animal species and varieties that are essential for adaptation in agriculture, shall not be patented by multinational or any other corporations.]]]"

Aside from the "no patents" proposal, the Chair's text as well as the various submissions of countries during the technology debate also contains other proposals to address the IPR barrier.

Some of the proposals envisage bolder actions to overcome the IPR obstacle, such as "Limited/reduced time for patents on climate friendly technologies".

The Philippines proposed language to improve the Chair's text that supported the use of TRIPS flexibilities as well as to ensure the sharing of publicly-funded technologies and related know-how. It proposed the following:

"Specific measures shall be taken and mechanisms developed to remove existing barriers to development and transfer of technologies from developed to developing country Parties arising from intellectual property rights (IPR) protection, including:

(i) to use to the full flexibilities contained in the Trade Related Aspects of Intellectual Property Rights (TRIPS) including Compulsory licensing to access intellectual property protected technologies;

(ii) take steps to ensure sharing of publicly funded technologies and related know-how including by making the technologies available in the public domain at an affordable price and on terms and conditions that promotes access for developing countries".

The Philippines also proposed the "adoption of a Declaration on IPRs and Environmentally Sound Technologies in relevant fora to inter alia reaffirm the flexibilities in the TRIPS Agreement and enhance the enabling environment for implementing these flexibilities".

The Chair's text had "Compulsory licensing for specific patented technologies" as a specific measure to remove IPR protection barriers to technology development and transfer.

The G77 and China proposed the "creation of a Global Technology Pool for Climate Change' that promotes and ensures access to intellectual property protected technologies and associated know-how to developing countries including on non-exclusive royalty-free terms in order to provide better information service and reduce transaction costs".

The Philippines made a similar proposal in its submission including an additional paragraph that states: "All necessary measures and actions shall be immediately taken to facilitate technology pools that include associated trade secrets and know-how on environmentally sound technologies and enable them to be accessed, including on royalty-free terms for developing countries".

The technology pool proposal is similar to a proposal in Bolivia's submission. The Bolivian proposal also speaks of immediately creating and providing "new and additional financing that is adequate, predictable and sustainable for joint technology excellence centres in developing countries, to enable entities in these countries to do research and development especially on adaptation as well as mitigation technologies" and "to ensure that any technology transfer to developing countries is appropriate for the developing countries concerned in order to enable its effective utilization".

(The immediacy is based on the mandate of the AWG-LCA to enhance implementation of the Convention "now, up to and beyond 2012".)

The Chair's text also contains a proposal for "The Executive Body on Technology", "to establish a committee, an advisory panel, or designate some other body, to proactively address patents and related intellectual property issues to ensure both increased innovation and increased access both for mitigation and adaptation technologies".

It further states that the committee/panel should:

"(a) Actively engage enterprises and institutions in both developed and developing countries; (b) Develop a clear framework for evaluation and determining when intellectual property becomes a barrier to international technology research, development, deployment, diffusion and transfer and provide options for corrective action; ( c) Make recommendation back to the UNFCCC COP or COP/MOP on barriers that may require further actions".

There are also proposals in the Chair's text that mention "Preferential pricing", "Differential pricing between the developed and developing countries", "promoting innovative IPR sharing arrangements for joint development of Environmentally Sound Technologies", and "Promoting Joint technological or patent pools for the development and transfer of technologies to the developing countries at low cost". +

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Cooperation not compulsion on clean technology transfer

by Dalindyebo Shabalala

Science and Development Network

3 June 2009

Compulsory licensing of clean technologies will only be needed if developed countries duck UNFCCC obligations, says Dalindyebo Shabalala.

Developing countries will need 'clean technologies', such as micro-wind energy, if they are to play an active role in combating climate change over the coming decades. The question is how to access these? The answer lies in genuine cooperative technology transfer between the developed and developing world.

Compulsory licensing, where governments allow manufacturers to produce patent-protected goods for domestic use without the patent owner's consent (sometimes with payment),is one option. It has worked well for medicine, though developing nations have had to fight hard to access some key drugs. And some countries, including Thailand, have suffered severe political penalties, such as threats to remove or suspend trade preferences.

Many in the climate change debate argue for new and more flexible compulsory licences for clean technologies, especially given potential demand in developing countries and the short time frame for action.

A last resort?

Individual countries could unilaterally use existing World Trade Organization rules for compulsory licences to access key clean technologies. But that — and any new licensing system — should only be needed if industrialised nations fail to meet their technology transfer and financing commitments under the UN Framework Convention for Climate Change (UNFCCC).

Some proponents of new compulsory licensing for climate-related technologies have misunderstood key differences between the access to medicines debate (under the TRIPS Agreement) and technology transfer, under the UNFCCC.

Whereas TRIPS contains just one relatively weak commitment to technology transfer that only refers to least developing countries, the UNFCCC addresses it extensively, giving clear guidelines, especially on financing, for developed and developing countries.

And there are other factors that compulsory licences may not resolve. For example, for many climate technologies, such as micro-hydroelectric, wind and solar, the major cost may not be the intellectual property (IP), but the actual hardware and maintenance.

More than access to the actual technologies, developing countries need access to the skills, know-how and capital that can help them use, reproduce and adapt clean technologies. Compulsory licences — except those granted for competition reasons — may not transfer this tacit knowledge, which is often protected by trade secrets.

UNFCCC obligations

Under the UNFCCC, industrialised countries are committed to providing and financing technology transfer, regardless of patents. They are obliged to make available funds and mechanisms to ensure access, distribution and uptake of environmentally sound climate-related technologies in developing countries. For example, the [UN] Montreal Protocol — an international treaty to protect the ozone layer — pays for licensing fees at reasonable costs. Countries remain free to exercise compulsory licences when companies refuse to license their products.

The Montreal Protocol — and the UNFCCC — also account for IP market failures, where patented goods or knowledge become unaffordable for most relevant consumers. Under them, developed countries guarantee to transfer technologies, including paying for licences, if the technology in question exists and is unavailable in the national market at an affordable cost.

Unlike compulsory licensing, this commitment represents a cooperative approach. Only if this fails will developing countries, left to their own devices, have to resort to unilateral measures.

Those engaged in the current UNFCCC negotiations are well aware that agreeing a workable mechanism for technology transfer is essential. It is crucial for strategies to successfully combat climate change after 2012 (when the first commitment period of the Kyoto Protocol ends).

Lessons from Montreal

The Montreal Protocol shows technology transfer can be successfully addressed. What is needed is a fully funded financing mechanism that pays the full costs of accessing technologies, especially patent licences and accompanying services. And there must be a fair mechanism for managing intellectual property barriers, such as refusals to license, unreasonably high licensing costs, restrictive licensing practices, and other issues.

Developing countries at the UNFCCC are proposing a Technology Cooperation Mechanism that draws on experiences of the Montreal Protocol. Developed countries, who have not yet proposed any mechanisms themselves, need to acknowledge the success of experiences such as the Montreal Protocol and actively join with developing countries in seeking a cooperative and good faith solution. Only then can developing countries begin to effectively take on the challenge of reducing greenhouse gas emissions and adapting to climate change.

In the meantime, developing countries will continue to use compulsory licensing as a bargaining chip.

But we should all hope that unilateral measures remain nothing more than that. If developing countries have to resort to large-scale compulsory licensing to acquire climate-related technologies, it will signify a fundamental breakdown in the global climate policy regime. Developing countries will have been left on their own to sink or swim in a deluge of someone else's making.

Dalindyebo Shabalala is director of the Intellectual Property and Sustainable Development Project at the Center for International Environmental Law (CIEL). The views expressed in this piece do not necessarily reflect the views of CIEL or its funders.


Diffusion of Climate Friendly Technologies: Can Compulsory Licensing Help?

By Nitya Nanda,

Centre for Global Agreements, Legislation and Trade, Resources and Global Security Division, The Energy and Resources Institute (TERI), India Habitat Centre, New Dehli 110 003

14 Journal of Intellectual Property Rights 241

May 2009


Countries often resort to compulsory licensing to promote diffusion of technologies, particularly when intellectual property rights (IPR) holder is considered to have abused its dominant position. However, use of this instrument is often difficult due to legal, political and operational problems. In this context, this paper reviews global regimes as well as national regimes in major jurisdictions, governing use of compulsory licensing. It also examines functional requirements and market conditions for compulsory licensing to work.

Based on these, it concludes that the global IPR regime under the WTO needs a mechanism similar to that has been developed for pharmaceutical products, and a more flexible regime even in that, as most countries do not have domestic manufacturing capabilities, if compulsory licensing has to work for the diffusion of climate friendly technologies. However, even such a flexible mechanism may not be adequately effective due to highly concentrated market structure of these technologies, particularly in developing countries.

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