Transcript IP and Climate Change Situating the WTO TRIPS Agreement in

WTO Side Event
Hotel Azul Sensatori
Carretera Cancun-Puerto Morelos Km. 27.5
Bahia Petempich, Quintana Roo
8 December 2010 from 14:00 to 18:30
IP and Climate Change
Situating the WTO TRIPS Agreement
in policy debate on climate change
Jayashree Watal
Disclaimer
• Not an institutional view – no WTO
logo
• On my own responsibility
• Without prejudice to the positions of
WTO Members and to their rights
and obligations under the WTO
• Not an authoritative account or
interpretation
• Represents work in progress
IP and technology transfer
• A range of views have been expressed as
to whether IPRs, particularly patents, trade
secrets and plant variety protection,
– present a barrier to technology development,
diffusion and transfer in developing countries,
or
– are an essential mechanism for technology
development and diffusion.
• A range of solutions have been presented
IP and technology transfer - some
prevailing ideas on solutions
• A legal view: legislate to directly access patented technology, e.g.
through exclusion, revocation, compulsory licensing or government use
orders – backed by international legal/political action
– OR by allowing patent term extensions, including wild-card patents
• An administrative view: construct mechanisms to facilitate technology
pooling or placing in the public domain
– all proprietary climate technologies/ just publicly funded/just public domain
– voluntary/compulsory
• non-exclusive and royalty-free/reasonable royalties
– OR facilitate patenting and licensing
• Patent fast track;
• licences of right
• An information view: improve the flow of information about public
domain/patented technologies (patent landscapes) and licensing
interests and opportunities
• An economic view: work on market incentives for both innovation and
technology diffusion
TRIPS Agreement
• Article 7
The protection and enforcement of intellectual
property rights should contribute to the
• promotion of technological innovation and
• to the transfer and dissemination of technology,
– to the mutual advantage of producers and users of
technological knowledge and
– in a manner conducive to social and economic
welfare,
– and to a balance of rights and obligations.
• Patents: obligations and policy options
– Article 27, 28, 29, 30, 31, 32, 33
Important to note
• Patents rights are obtained for each jurisdiction
separately and are independent of each other.
• At the time of patent filing, or even grant, it is not
commercially proven technology – many fall by
the wayside.
• Even if it is commercially proven, the mere
existence of a patent on a particular clean
technology in a particular country is not, in and
of itself, proof of barriers to access.
– It all depends on how the patent is exploited and this
in turn depends on the competition and availability of
close substitutes.
• Abuse of patent rights can be dealt with under competition
law
Reflections on technology transfer
• Equally, the absence of an enforceable patent right in a
certain country does not in itself provide any guarantee of
technology transfer.
– Most inventions are protected in a small minority of countries
worldwide, without concomitant transfer of that technology taking
place to those countries where there is no patent. Why?
– Absence of patents leaves open the prospect of using the
technology disclosed in the patent document.
• However, much depends on skill levels, infrastructure and other
factors important to the absorption of technology
• Without the partnership or involvement of the technology originator,
and the transfer of valuable know-how for the effective exploitation of
the technology, it may often be difficult to replicate the technology
inherent in patent documents. Cannot compulsorily license know-how.
• Incentives to enterprises to promote tech transfer can be
important.
Article 66.2
• Developed country Members shall provide
incentives to enterprises and institutions in their
territories for the purpose of promoting and
encouraging technology transfer to leastdeveloped country Members in order to enable
them to create a sound and viable technological
base.
• Several developed countries have reported
under this provision projects for LDCs in climate
friendly technologies: Australia, EU, Canada,
Norway, Switzerland and the US.
What’s distinctive about technology transfer
addressing climate change?
• Technology is the essential cause of anthropogenic
climate change. But technology is necessary part of the
solution
– Need to generate break-through, disruptive, new platform
technologies as well as cumulative innovation, fine tuning,
adapting
• A growing sense of urgency – need to increase
transparency, reduce transaction costs
• There could be specific legal obligations between States –
parallels the debate on adoption of technical standards
• Emerging ethical/human rights context
– Adaptation technologies linked to right to food, health, shelter
– Global self-interest in wide diffusion of clean technologies
What’s distinctive about technology transfer
addressing climate change? (2)
• Technologies highly diverse in character and involve almost any
sector
• Unlike pharmaceuticals, in engineering for renewable energy,
– R&D (and IPRs) cost may be small part of total costs. Materials, aftersales service may be a larger part
– Tacit know-how could be a large part, making CL less feasible
– May be many patented technologies/products in one final product,
making CL administratively and practically difficult
– Patentee willing to sell at reasonable price, license – exclusivity not an
option because of direct competition as patents not as strong, many
alternatives available.
– Already developing countries like China, Brazil own patented
technologies in solar and biofuel, so not clear-cut North-South
– Patents may not be renewed up to full term as technologies may change
rapidly.
• Cuts both ways – patents may not be the lead mechanism for appropriating
returns from R&D and equally, developing countries may be targetting the
wrong mechanism.
Current negotiating text
FCCC/AWGLCA/2010/14
• Agreement that any international agreement on IP
“shall not 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 enhancement of endogeneous
capacities and technologies of developing
countries and transfer of, and access to,
environmentally sound technologies and knowhow.”
Current negotiating text
FCCC/AWGLCA/2010/14
• Specific measures to remove barriers to
the development and transfer of IPcovered technologies, including:
– Creation of a Global Technology IPR Pool that
ensures access on non-exclusive royalty-free
terms.
– Sharing of publicly funded technologies and
related know-how on royalty-free terms.
Current negotiating text
FCCC/AWGLCA/2010/14
• Environmentally sound technologies to adapt to
and mitigate climate change shall, in developing
and least-developed countries, be:
– excluded from IPR protection
– revoked where IPRs exist.
• TEC shall recommend to the COP international
actions to support removal of barriers to
technology development and transfer, including
those arising from IPRs.
CONCLUDING REMARKS
• Generally unlikely that a Doha-type declaration would, in and of
itself, help access climate technologies.
– For many reasons outlined earlier, it is unlikely that for most climate
technologies the absence of patents,
• through exclusions of subject matter
• revocation
• through CL/government use
– would lead to these technologies and products being available widely
in all or most developing countries at reasonable costs
– Where relevant, TRIPS obligations and flexibilities already exist and
nothing done in UNFCCC will change that.
• So what should developing country negotiators try to achieve?
• It may be more productive for them to focus on joint collaborative
R&D, private-public partnerships, especially on adaptation and
other pragmatic ways on the management of IPRs, including
recognition of best practices in industry for rapid diffusion and
dissemination than focusing on TRIPS amendments.