Reversing the Clock: Climate Engineering and IP Rights

Managing intellectual property (IP) rights related to climate-protecting technologies has never been as important as it is today. In late 2018, the United Nations Intergovernmental Panel on Climate Change (IPCC) released a landmark report warning that the humans now have 12 years to limit climate change before an irreversible environmental tipping point is reached.  The IPCC report finds the world is on course for 3 °C of warming, double what they believe is the limit for humanity to stand a fighting chance. With devastating effects of climate change upon us, climate engineering stands as one of humanity’s greatest chances at mitigating that change.  As a result, our future depends on ensuring accessible, low cost climate technologies that are suitable for widespread use. As IP law stands today, control over a technology’s patent could mean control over the future of the world’s climate.

The potential benefits of climate engineering technologies are massive, including the possibility of reducing temperatures immediately and reversing atmospheric greenhouse gases to pre-industrial levels in the matter of decades. Such technologies largely fall within two broad categories: solar radiation management (SRM) and carbon dioxide removal (CDR). SRM technologies can immediately reduce temperatures by reducing the amount of radiation received from the Sun. For example, SRM technologies range in their complexity from such things as putting blankets over glaciers, painting roofs and roads white, to increasing the reflectivity of clouds. SRM is a cost-effective solution to reducing temperatures but is only effective in the short term and do not confront climate change at its source. CDR technologies address global warming at its root by directly removing CO2 from the atmosphere, however, they tend to be more complex and expensive, and require decades of use before they have any significant effect. These technologies include, giant carbon dioxide vacuums, carbon capturing algae and good old fashion trees.

Climate technologies, however, are not “one and done” solutions. These technologies need to be massively produced and deployed around the world to effectively mitigate climate change. This requires, among many things, an IP strategy designed to deliver (not just inspire) innovation, investment, production and cooperation between nations. Canada’s current strategy is to fast track patent applications that relate to clean technologies.

Section 28(1)(b) of the Patent Rules states that the Commissioner shall advance an application upon the request of an applicant “if the applicant files with the Commissioner a declaration indicating that the application relates to technology the commercialization of which would help to resolve or mitigate environmental impacts or to conserve the natural environment and resources”. Climate technologies, such as those previously mentioned above, are likely to fall within this category.

Patents, of course, provide the holder with the right to exclude others from the creation, use and selling of the patented invention, but, it is this right to exclude that has some researchers suggesting an outright patent ban on climate technologies. Due to the indispensable nature of climate technologies on the world, their fear is that climate technologies are far too important to be left in private hands and excluded from others. However, climate technologies require a considerable amount of investment and patents provide a level of protection that is attractive to investors. To put this situation into perspective, the United Nation Framework Convention on Climate Change predicts that several hundred billion dollars in global investment is needed in clean technologies to maintain global temperatures below the 2 °C threshold.

A number of possible solutions present themselves. First is compulsory licensing, which allows governments to license patented inventions without the consent of patent owners. It is a solution for urgent problems and is a strategy famously utilized by the United States during World War I with the introduction of 1917 Trading with the Enemy Act. Whether compulsory licensing encourages innovation is unclear, it may encourage it by increasing competition but also discourage innovation by reducing expected returns to private-sector research and development.

Similarly, in Canada, the Patent Act has a provision (s.19) for government appropriations. Section 19 of the Patent Act permits federal and provincial governments to make an application to the Commissioner for the use of a patented invention. In order for an appropriation to be granted it must be in accordance with the following principles: (a) the scope and duration of the use shall be limited to the purpose for which the use is authorized; (b) the use authorized shall be non-exclusive; and (c) any use shall be authorized predominantly to supply the domestic market. However, prior to authorization, the Commissioner must make an effort to obtain use of the patent on reasonable terms and within a reasonable period. Once authorized, as per s.19(4) “the authorized user shall pay to the patentee such amount as the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization.”

There are a number of situations where the conditions for authorization do not apply. As per s.19.1(2), the Commissioner does not have to seek authorization in “cases of national emergency or extreme urgency or where the use for which the authorization is sought is a public non-commercial use.” Some idea of what a national emergency might entail can be found in s.5 of the Emergencies Act where “Public Emergency” is defined as “an emergency that is caused by a real or imminent (a) fire, flood, drought, storm, earthquake or other natural phenomenon, (b) disease in human beings, animals or plants, or (c) accident or pollution, and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.” The previously mentioned report by the IPCC warns that all these listed hazards are high likely to occur unless global temperatures are kept below a 2 °C increase. These hazards are potentially appropriate situations where government may appropriate a patented technology.

Patent pools are another possible solution to the problem of a patent holders right to exclude. The World Intellectual Property Organization defines patent pools as “an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.” Essentially, patents from multiple patent owners are pooled together and made available to member and non-member licensees and allocates a portion of the licensing fees it collects to each member in proportion to each patent’s value. Patent pools have historically been used in the production of everything from sewing machines and movie projectors, to video and biotechnology. Chapter 7 of the Canadian Competition Bureau enforcement guidelines on IP acknowledges that patent pools can often serve a pro‑competitive purpose by, among other things, integrating complementary technologies, avoiding costly litigation, reducing transaction costs and clearing blocking patents.

Lastly, one further option is that a patent holder may take a page out of the book of automotive company Tesla and open up their patents. In other words, Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use their technology. Tesla’s goal is to accelerate the advent of sustainable transport in order to address the carbon crisis, and by opening up their patents and eliminating an intellectual property barrier they have. In the same manner, patent holders to climate technologies may choose to open their patents in order to accelerate the development of climate technologies in order to address climate change.

Some lessons may be drawn from past, but this is largely uncharted territory. At no other time has the world been faced with such an urgent problem. As time goes on and climate change worsens, it is likely that rights to climate technologies will become a balancing act between the rights of the few (patent holders) and the rights of the many (the world).

Written by Alex Dumais. Alex is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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