At the Rio + 20 United Nations Conference on Sustainable Development -- which followed by forty years the Stockholm Declaration of the United Nations Conference on the Human Environment and by twenty years the Rio Declaration on Environment and Development -- the negotiators sought to “reinvigorate political will and raise the level of commitment by the international community to move the sustainable development agenda forward.”

In particular, they adopted what most view as an inadequate text, but one which nevertheless recognizes the need to promote technology innovation and technology transfer.  It emphasizes technology transfer to developing countries on concessional terms that may limit market rewards otherwise provided by intellectual property rights.  Specifically:

• …We recognize the critical role of technology as well as the importance of promoting innovation, in particular in developing countries. We invite governments, as appropriate, to create enabling frameworks that foster environmentally sound technology, research and development, and innovation, including in support of green economy in the context of sustainable development and poverty eradication.

• We emphasize the importance of technology transfer to developing countries and recall the provisions on technology transfer, finance, access to information, and intellectual property rights as agreed in the Johannesburg Plan of Implementation, in particular its call to promote, facilitate and finance, as appropriate, access to and the development, transfer and diffusion of environmentally sound technologies and corresponding know-how, in particular to developing countries, on favourable terms, including on concessional and preferential terms, as mutually agreed.

The Rio + 20 text, however, does little to advance the ball in this regard, merely “urg[ing]” developed countries to make “additional concrete efforts” to reach development aid targets, noting “with grave concern” the lack of sufficient funding commitments to prevent global warming more than two degrees Celsius above pre-industrial levels, and “welcoming” creation of the Green Climate Fund to supply such funding and technology transfer for climate change mitigation and adaptation measures.  The text emphasizes both the full use of the provisions of the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS  Agreement), and specific measures taken by the WTO to ameliorate restrictive effects of the TRIPS Agreement in the context of access to medicines.

Given the background of lack of progress at the Bonn negotiating meeting of the UN Framework Convention on Climate Change, the Rio + 20 text can only be read as glossing over the deep and continuing divides between the developed North (and emerging economies) and the developing South over intellectual property rights.  What is more relevant is that the hoped-for massive expenditures for technology transfer for mitigation and adaptation measures may not be forthcoming, but nevertheless massive private and governmental expenditures in energy, transportation, and other infrastructures will occur.  For just one example, the eight largest multilateral development banks have recently pledged to expend US$175 billion on sustainable transportation systems.  These investments are sought to “leapfrog to a greener future of less motorization, shorter commutes, and more energy-efficient transport systems."  Anticipating or resulting from these investments, numerous public and private intellectual property rights will be generated and, presumably, licensed at costs that will likely generate conflicts for both purchasers and recipients.

Much of the hoped-for funding for mitigation and adaptation will be provided by or to governments.  Accordingly, the question arises as to the best form in which national governments should make their investments in innovation.  Although much has been said about the creation of intellectual property rights for inventions made with government funding (as under the Bayh-Dole Act), relatively little analysis exists about the best way to expend government money for innovation in the first instance.  Governments may seek to develop technology through: (1) government procurement (including guaranteed market commitments); (2) direct development by government actors (e.g., in national laboratories); (3) government subsidies to private actors (either in the non-profit and university sector or in industry, through direct payments, tax incentives, or prizes); (4) government constructed commons; and (5) government “encouragements” (e.g., certification programs) and “threats” (e.g., of market price regulation, competition enforcement, or even nationalization).  None of these particular methods reflect any necessary policy on intellectual property rights, ownership, and licensing.  And all of them have been used at different times in different industrial contexts – such as national defense (procurement); renewable energy (national laboratories); biotechnology and medicine (government subsidies); data generation and DNA sequence information (constructed commons); and energy efficiency certifications (encouragements) and transportation patent pools (threats of compulsory licensing).  Which method is best is now a question of critical importance, both to cost-effectiveness of the massive forthcoming investments and their success in addressing the forthcoming problems.

Joshua D. Sarnoff is a Professor of Law at DePaul University College of Law in Chicago, where he teaches patent law, other intellectual property law classes, and law and climate change. He is a registered patent attorney, a former member of the Board of Governors of the Federal Circuit Bar Association, and a pro-bono advocate in judicial, legislative, and administrative fora.