Showing posts with label technology transfer. Show all posts
Showing posts with label technology transfer. Show all posts

Saturday, January 16, 2010

Climate Change: Technology Transfer or Compulsory License?

Climate Change: Technology Transfer or Compulsory License?
By: Lawrence A. Kogan, Esq.


President, Institute for Trade, Standards, and Sustainable Development (ITSSD)


Presented at


American National Standards Institute (ANSI) Monthly Caucus Luncheon


January 15, 2010


I. Introduction and Welcome

II. Overview of the Copenhagen Conference

A. Legal Objective:

B. Political Problems:

· Lack of Trust in GHG Emissions Reduction Verification

· Clean/Green Technology Patent/Trade Secret Protections at Risk

o Officials from China, India and Brazil have proposed that new green technologies be made subject to “compulsory licensing”, which is tantamount to waiving IPRs.

§ UNFCCC Arts. 4.3 and 4.5
§ WIPO General Assembly Cluster C “Technology Transfer, Information and Communication Technologies and Access to Knowledge”

C. Non-Legal Result/Outcome: A limited and nonbinding instrument known as the “Copenhagen Accord”.

· Flaws in the UN process, which demands consensus among the members of the international community, were exposed at Copenhagen and caused chaos.

o E-10 group of countries – largest GHG emitters would include: the United States, the European Union, China, Russia, India, Japan, Canada, South Africa, Australia, and Brazil.

III. Top-Down Proposed International Solutions to the Broader Problem that Threaten to Adversely Reform International Regulation of IPRs:

A. Creation and execution of a Doha Declaration on Climate Change:

B. Creation of Multilateral and/or Intergovernmental Funds:

· Fund grants would be subject to “Global Access Principles”, which would set forth rules for the international management of IPRs.

· Funds would create an additional UNFCCC bureaucracy and outside ‘expert’ committees.

C. Proposals Made Within the WIPO Standing Committee on the Law of Patents:

· SCP/14/4 pars. 86-87; 122-123.

· SCP/13/3 at par. 142.

· SCP/13/3 at pars. 13, 46, 91-93 and 141-142; SCP/13/2 at pars. 141-142.
o http://www.wipo.int/export/sites/www/scp/en/meetings/session_14/studies/itssd_2.pdf

· Mandatory ‘open’ ‘royalty-free’ patent-rich standards coupled with Patent Pools and/or Licenses of Right are favored solutions.

§ http://www.wipo.int/export/sites/www/scp/en/meetings/session_14/studies/itssd_1_summary.pdf
§ http://www.wipo.int/scp/en/meetings/session_14/studies/itssd_1.pdf

D. Top-Down Patent and Standardization Proposals Made by the Chinese Government at the National Level with International Consequences:

· China 2005 proposal to WTO Technical Barriers to Trade (TBT) Committee G/TBT/W/251, G/TBT/W/251 Add.1. (2005)).

· The Standardization Administration of China (“SAC”)’s recently drafted Proposed Regulations for the Administration of the Formulation and Revision of Patent-Involving National Standards, mandate free-of-charge or FRAND at a price significantly lower than normally royalties patent licensing. Articles 8, 9, 12 and 13.

§ This will have a severe impact on US clean/green technologies.

§ “Only one of the top ten solar photovoltaic (PV) producers in the world is American; only one of the top ten wind turbine producers is American; and only two of the top ten advanced battery producers are from the U.S.

IV. Is There Still a Sufficient Incentive to Innovate in Clean/Green Technologies After Copenhagen and With China in Mind?

· IPRs patents and trade secrets subject to reverse-engineering.

· Costs of compliance will increase to reach GHG reduction targets and reduce job creation.

V. US Domestic Considerations

A. Top-Down Proposed US National Solutions:

· Condition federally funded government patent grants to universities and private parties on the licensee’s exhaustion of the patent on compliance with ‘humanitarian licensing clauses’. (e.g., US NIH)

· Reform Bayh-Dole legislation

B. Bottom-Up University Alternative Licensing Solutions:

· Some US universities have begun to change their licensing practices to incorporate ‘humanitarian’ or ‘open licensing’ policies.

o Humanitarian

o Open Licensing

§ Equitable Access Licensing Clauses

§ Reach-Through Licensing Clauses

VI. Which do you prefer: Tech Transfer or Compulsory License?

A full version of this presentation is accessible online via the www.itssd.org website at:

Tuesday, December 9, 2008

It's Rather Simple, Really: If China & India Desire Climate Change Technology Transfer, They Must ACTUALLY Respect Foreign Private IP Rights!

http://www.climatechangecorp.com/content.asp?ContentID=5830


From politics to business: Technology transfer to Asia

By Rajesh Chhabara


Climate Change Corp Climate News for Business


December 9, 2008


Climate change technology transfer needs to move from being a political football to becoming a business opportunity, but how?


As countries gather in Poznan to begin another round of negotiations to develop a successor agreement to the Kyoto Protocol, which expires in 2012, technology transfer remains one of their most complex challenges.



Developing nations, led by China and India, complain that rich countries have not kept to their part of the deal to transfer clean technologies as envisaged in the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and again emphasised in the Bali Roadmap.



The Bali Roadmap, which resulted from the last round of negotiations in Bali, Indonesia in December 2007, pledged action to remove obstacles to deployment, diffusion and transfer of affordable environmental technologies to developing countries including providing financial assistance. In Bali, India and China aggressively opposed binding emission targets on developing nations and instead asked for financial assistance for clean energy technologies.


Developing economies, including China and India, say they need access to environmentally sound technologies and funds to reduce their greenhouse gas emissions while continuing to develop.


India has repeatedly said it needs access to clean technologies especially in energy, manufacturing, transportation and agriculture. Speaking at the Asia-Europe Summit in Beijing in October, the Indian Prime Minister Manmohan Singh said: "Unfortunately, the international community has not lived up to its commitments for technology transfer and additional financing since the Rio conference.”


UNFCCC chief Yvo de Boer, who was in Beijing to attend a high level conference on climate change and technology transfer in November, agreed saying: “The developed world has not paid sufficient attention to technology transfer. International technology transfer will allow countries like China to take action which is not affordable to them at the moment.”

[HOW IS IT POSSIBLE THAT CHINA, WHICH, AS OF NOVEMBER 2008, HOLDS 27% OF THE WORLD'S FOREIGN CURRENCY RESERVES (APPROX. 1/3, IF YOU ALSO INCLUDE MAJORITY CHINESE NATIONS SUCH AS MACAU, HONG KONG, TAIWAN and SINGAPORE) IS UNABLE TO AFFORD TO TAKE ACTION??]

[See: List of Countries by Foreign Exchange Reserves, Wikipedia, at: http://en.wikipedia.org/wiki/List_of_countries_by_foreign_exchange_reserves ].


New Delhi-based Energy and Resources Institute estimates that India would need $5bn a year between 2012 and 2017, over and above its current investment plans, to make the transition to low carbon energy generation.


A report by the UNFCCC published in January revealed some interesting dimensions of technology transfer through the Clean Development Mechanism (CDM). CDM projects allow developed nations to offset their own greenhouse gas emissions by investing in emissions reduction projects in developing countries.


The report said only 39% of CDM projects - accounting for 64% of the annual emission reduction claims - claimed technology transfer. Technology transfer took place predominantly in destruction projects for HFC and N2O - two potent greenhouse gases. HFC and N2O destruction projects generate very high numbers of Carbon Emission Reductions (CERs) or carbon credits. In most of these cases, the buyer of CERs was also the supplier of technology and finance.

What [Do] India and China want?


But India and China want clean technologies for wider applications mainly in power generation, steel, cement, chemical, paper, aluminium and agriculture sectors which are identified as the most energy intensive industries.


While India and China have mastered bio-mass energy and hydro power respectively, they need access to other technologies such as those enabling methane trapping from coal mines, energy efficiency, energy distribution, fossil fuel alternatives, energy from landfill gas and reforestation.

China and India suffer from a heavy lack of energy efficiency in their industrial sectors. The International Iron and Steel Institute estimates that China could reduce 180 million tonnes of CO2 from the steel industry alone if its efficiency was brought on par with Japan.


According to a study by the UN Department of Economic and Social Affairs in 2004, China’s coal-fired power plants consumed 30% more coal than German plants, indicating huge potential for emission reduction by switching to cleaner technology.


Similarly, Asia can save hundreds of millions of tonnes of carbon in the transport sector, which remains amongst the most energy-inefficient in the world. An Asian Development Bank backed study on “energy efficiency and climate change considerations for on-road transport in Asia” in 2006 said that the global transport sector in 2002 accounted for 21% of the world's total energy consumption and is projected to generate over 60% of the increase in total energy use through to 2025.


The report projected that emerging Asian nations would provide much of the future growth in oil consumption – and greenhouse gas emissions - due to their strong economic and population growth. It concluded that increasing energy efficiency in the road-transportation sector is crucial to mitigating climate risks.


Lu Xuedu, deputy director general of China’s National Development Reform Commission, backs up the report, saying, “transferring more efficient technology to developing countries would achieve large scale emission reductions at lower cost.”


Several European countries currently own the latest clean technologies. Technology experts point to the Netherlands (bio-mass), Germany (energy efficiency households and N2O), Sweden and Norway (Hydro power), Italy and Spain (wastewater treatment) and France (nuclear and environment-related technologies) as leaders in their respective technologies.


Cutting edge technologies in wind power and solar power also remain concentrated in Europe and the US, and are largely owned by private companies. Japanese companies dominate technologies in industrial scale energy efficiency, HFC and transport projects.

Some of the largest players in clean technologies include Hydroenergy (hydro-power, Norway), Q-Cells (solar, Germany), Vestas (wind power, Denmark), GE (wind power, U.S.), Kawasaki Heavy Industries (waste heat generator, Japan), Vichem (HFC destruction, France), Uhde (N2O abatement, Germany) and Mitsubishi (clean coal technology, Japan).


N. Yuvaraj Dinesh Babu, chief executive of The Carbon Rating Agency- a company belonging to the Idea Carbon group, says that intellectual property rights (IPR) form the main barrier to technology transfer. Western companies are wary of sharing their technology and know-how with developing countries, he says, as they fear losing control of the market to copy cats: “The high cost of clean technologies is also prohibiting technology transfer.”


According to the UNFCCC report, technology which has been transferred through CDM projects so far, originated mostly (over 70%) from Japan, Germany, the US, France, and Great Britain. The report analysis found that the rate of technology transfer was higher where foreign partner participated in the project. Whilst joint ventures may be better placed to facilitate technology transfer, the report says, they would still require investment incentives and IPR protection guarantees by the host government.


Policy intervention in the CDM can also stimulate technology tranfer. China’s CDM policy states that projects should encourage transfer of environment technology though it does not make it mandatory. India’s policy is very vague on the requirement of technology transfer in CDM projects. Malaysia, on the other hand, has made it mandatory that a CDM project must involve import of environmentally sound technology.


As a result of these policies, whilst only 7.3% CDM projects in India mentioned transfer of technology by 2006, the figure for China was 55.1% and a staggering 83.3% for Malaysia. The main technologies transferred to Malaysia included biomass, biogas, substitution of coal with biomass in a cement manufacturing plant, methane capture from landfill gas, hydropower, agriculture (composting) and energy efficiency.


The Carbon Rating Agency's Babu says developing nations should adopt a three pronged strategy if they want access to clean technologies: they should set up a national level high-power organisation tasked with creating enabling environment for technology transfer, put in place a stronger IPR regime and find ways to finance projects including using local investors and international assistance.


India and China both have reformed their intellectual property rights regulations as required by their commitment to WTO but they are often criticised for lax enforcement.


Private joint ventures in large coal projects may also incur problems as most energy production is still in the hands of the state in India and China. In India, renewable energy– a current boom sector – is entirely in the private sector, and some reforms in the last few years have opened the conventional power sector for private investment.


Adaptation of clean technologies to local conditions is another area of concern. Babu suggests that the technology transfer should be planned in four phases: the host country should carry out a need assessment to identify technology needs. Then, adaptation aspects of the chosen technology should be worked out followed by a pilot project. Only after a successful pilot, the full scale deployment should take place.


China advocates the establishment of a Multilateral Technology Access Fund to finance technology transfer to developing countries. Xie Zhenhua, vice chairman of China National Development and Reform Commission says, “such a fund can cut down the cost of technology transfer to developing countries.”


He says that lack of access to green technologies at this stage can have serious implications as developing nations are building massive infrastructure to keep pace with industrialisation. Use of old technologies can only aggravate global warming.



China wants this fund, established by developed nations by contributing 0.5% of their GDP, to be used to enhance mitigation, adaptation, research and development in technology, and technology transfer.



However, in view of the global financial crisis, demand for funding may face resistance from developed nations in Poznan talks. “The greater emphasis will be on technology transfer,” says Ajay Mathur, director general, Bureau of Energy Efficiency who is a member of the Indian team for Poznan negotiations.



In the last few weeks, China and India both have reiterated that technology transfer at cheaper rates is crucial to their commitment to reduce greenhouse gas emissions without compromising on their development needs. International negotiators at Poznan are under pressure to produce a framework for technology transfer to developing countries in order to keep up the hopes of a final deal in Copenhagen by end-2009. Facts: Trends in technology transfer within Clean



Development Mechanism (CDM) projects

· Technology transfer is more common for larger CDM projects

· 39% projects (representing 64% estimated emission reductions) claim tech transfer

· Unilateral and small-scale projects involve less technology transfer

· Technology transfer is more common for projects that have foreign participants: almost half of projects with foreign participants claims tech transfer

· Host country can influence the extent of technology transfer involved in its CDM projects: The DNA approval criteria of these countries include provision for technology transfer

· 56% of the projects that involve technology transfer claim both equipment and knowledge transfers

· 32% of the projects claim transfer of equipment only

· 11% claim transfer of knowledge only

Source: Technology Transfer in CDM Study by UNFCCC, Dec 2007

Friday, March 21, 2008

Russia Can Secure Greatest Biotech Market Advances Following US, Not EU Innovation Model

ITSSD: Russia Can Secure Greatest Biotech Market Advances Following US, Not EU Innovation Model

PRINCETON, N.J., March 21 /PRNewswire-USNewswire/ -- In a short article published today by the Washington Legal Foundation, US international trade and business lawyer Lawrence Kogan and Russian Government lawyer Yelena Bakulina highlight the common bases in Russian and US history that have triggered new thinking in Russia about how to use privately owned patent rights and cooperative government-university-industry technology transfer arrangements to secure successful market commercialization and peaceful adaptation of publicly-owned bio-warfare technologies.










The article arose from Kogan's June 28, 2007 presentation at a symposium convened by the Vyatka State University, Kirov, Russia, [http://www.vshu.kirov.ru/] as part of a longstanding joint Russian-US cooperative nonproliferation program overseen by the International Science and Technology Center (ISTC), Moscow, Russia. [http://www.istc.ru/]







According to Bakulina and Kogan, "The [US] federal government['s]...transference of innovation from energy, space, and defense to that of the private sector, and...the American experience in innovation and intellectual property may be advantageous to use in Russia..."

Furthermore as the authors note, "The Kirov Region certainly has the potential to develop effective innovation systems supported by the investment and protection of privately owned intellectual property in the sphere of modern high tech technology. If properly managed...this could create jobs, know-how and other economic and social benefits in the Kirov Region."


"Such an approach," adds Kogan, "would allow Russian biotechnology markets to leapfrog those of the European Union to capture a greater share of the global marketplace for biomedical and bioenvironmental products and processes. Unfortunately, the current EU innovation model is fixated on governmental market control via regulation rather than on market facilitation via economic incentives that ease the burdens and costs of doing business," emphasizes Kogan. "The EU Commission is more obsessed with dictating the rules of the game to ensure 'parity-over-progress' than with providing hi tech European businesses operating in the biotech sectors with
the necessary property rights-based enabling environment and economic freedom to grow and prosper. "Consequently," Kogan notes, "EU biotech and pharma companies have increasingly relocated operations to the US."


The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This and related ITSSD articles are accessible online at:
http://www.itssd.org/Publications/03-21-08balukina.pdf; http://www.itssd.org/ and http://itssdinternationaliprights.blogspot.com/.


CONTACT: ITSSD, +1-609-951-2222, info@itssd.org