Transcript Ahmed Abdel Latif - European Parliament

Climate Change,
Technology Transfer and IPRs:
Issues, Options and Challenges for
Copenhagen and beyond
Ahmed Abdel Latif
Programme Manager
Intellectual Property and Technology, ICTSD
European Parliament
Committee on International Trade
10th November 2009
Climate Change, Technology Transfer and IPRs:
Issues, Options and Challenges
for Copenhagen and beyond
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The technology transfer imperative
Deconstructing the role of IPRs
Evidence gap on technology transfer and IPRs
Compulsory Licensing
Voluntary Licensing
Technology and patent pools
R&D and technology collaboration
Public private partnerships (PPPs)
Innovation in developing countries and LDCs
for climate change technologies
Enhanced transfer of climate friendly technologies :
A key element of a global climate change deal
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The UNFCCC calls on developed countries to take steps to promote
transfer of technology (TOT) to developing countries (Article 4.5).
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The Bali Action Plan called for “enhanced action on technology
development and transfer to support action on mitigation and
adaptation, including, inter alia, consideration of:
(i) Effective mechanisms and enhanced means for the removal of
obstacles to, and provision of financial and other incentives for, scaling up of
the development and technology to developing country Parties in order to
promote access to affordable environmentally sound technologies (EST);
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Discussions at the UNFCCC on IPRs have witnessed a polarization
around the question of whether IPRs are a barrier to the transfer of
climate change technologies or an essential pre-requisite to promote
technology transfer and innovation in green technologies.
Deconstructing the role of IPRs in Technology Transfer
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Technology Transfer (TT) is a complex and multidimensional process.
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Its success is contingent on many factors (finance, local absorptive
capacity, enabling environment).
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TT involves knowledge which is embodied not only in IPRs such as
patents but also in blueprints, designs, know-how and trade secrets.
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IPRs are important to promote innovation. By offering protection against
a loss of control of information in technology-related transactions, IPRs
can be an instrument facilitating the transfer of technology.
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IPRs have also an impact on cost of technology acquisition and rate of
technology diffusion. Licensing conditions play a key role.
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Role of IPRs varies according to technology and sector. IP issues
raised in the context of mitigation technologies are different from those
in the context of adaptation.
Sample ‘Environmental’ Patent Application
Evidence Gap on Transfer of
Climate Change Technologies and IPRs
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The experience in the implementation of the Montreal Protocol
Landmark study by John Barton for ICTSD in 2007: IP and Access
to Clean Energy Technologies in Developing Countries. An
Analysis of Solar Photovoltaic, Biofuel and Wind Technologies.
Several studies were released in 2008/2009.
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Some trends identified:
 Significant increase in patenting of clean technologies in recent
years (since 2000)
 Concentration of patent ownership in OECD countries
 Few patents registered in low income countries
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Limitations:
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Partial coverage of technologies and of countries
 No technology mapping
 No expertise in the retrieval of patent information
 No comprehensive analysis of licensing practices. The number of
patents in the area might not be the key issue but rather the
licensing practices.
UNEP-EPO-ICTSD Project on IPRs and
Climate Change Technology
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Unique partnership between :
 UNEP
 European Patent Office (EPO)
 ICTSD,
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The scale of the challenge, both in analytical and policy
terms, is such that only a broadly based partnership can
have success. Partnership announced in April 2009.
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The project includes carrying out a technology mapping,
a patent landscape of clean technologies in the area of
energy generation and a survey of licensing practices in
the same area.
Research and Analytical Steps
Current project
Further possible projects
Technology mapping studies in 4 key mitigation sectors identified by the IPCC
PHASE 1
Energy
Buildings
Transport
Industry
Identification and specification of technologies for mitigation
PHASE 2
PHASE 3
Patent landscaping: What patents exist on these
technologies?
Licensing survey for 300-500 selected companies and
institutions per sector
PHASE 4
Synthesis report to better inform UNFCCC negotiations on
transfer of technology and financing
PHASE 5
Broad dissemination of results
PHASE 2 : Patent Landscaping for Renewable Energies
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Key question: Which patents are related to renewable
energies, according to the technology mapping?
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EPO's core competence in patent classification is key
asset (internal classification scheme ECLA goes much
deeper than IPC) .
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A team of EPO examiners have tagged all related patent
records worldwide.
Phase 3: Survey of Licensing Practices
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How far to go asking for information which could be part of
business strategy ?
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Consultation in Geneva on May 8, 2009 with
representatives of major industry/business associations.
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Survey carried out between August and October 2009.
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More than 150 responses received from respondents which
include companies, public research organizations,
academic institutions etc.
Input of the project into UNFCCC discussions
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Results of the patent landscape and licensing survey are currently
being studied. Some preliminary findings will be presented at COP 15
in Copenhagen. Final report will be available by spring 2010.
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Project illustrates how to implement an element of the negotiating text
on “Technology Information” :
 A technology information platform for ESTs including a global
technology database should be developed and continuously be
updated to collect information on sector specific technologies and
best practices, including on IPRs and licensing,…
Ultimately, availability of accurate patent information
not an end in itself but an element in an enabling
environment for innovation and TT
Menu of options for the nexus
Transfer of Technology/IPRs
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In relation to IPRs, and taking into consideration results of
evidenced based analysis, possible responses :
→ Business as usual approach: difficult to sustain in view of
urgency and demand for rapid and wide scale
diffusion
of
CC to developing countries
→ Promoting the transfer of technologies in the public domain
→ Guidelines on Technology Licensing on fair and
reasonable
terms for developing countries
→ Arrangements for greater use of alternative innovation
models (prizes,
patent pools, open
innovation
etc.) and collaborative
R&D
→ Building capacities on EST research and innovation in
developing countries
→ Use of TRIPS flexibilities
Exclusion from patentability, compulsory licensing,
competition.
Use of TRIPS flexibilities/Compulsory License
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The TRIPS Agreement includes provisions that allow the
exploitation of patented inventions without the consent of the
IPR owner, such as compulsory licenses (CL).
TRIPS does not list specific reasons to justify the use of a CL
and leaves grounds to be determined by national legislation
in compliance with Article 31.
Question of Article 31 (f), CL for predominantly domestic
market.
US Clean Air Act confers for a court, at the Government’s
request, to order a CL with royalties decided by the court.
Cannady (ICTSD/2009): “a country may invoke CL for CC
technologies without violating TRIPS”.
In a nutshell, CL is legally available but how practical is it to
achieve greater access to climate change technology ?
Licensing of climate change
technologies to developing countries
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Negotiating licensing agreements on a case by case basis can
be costly and time consuming. A new policy framework could
help to lower these transaction costs for climate change
technologies.
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EGTT Strategy Paper (FCCC/SB/2009/3) suggests “Innovative
licensing models”.
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Private sector has expressed support for an :“An international
set of core contractual principles for business engaging in clean
energy technology licensing in developing countries”, CEO
Climate Policy Recommendations to G8 Leaders (July 2008),
WBCSD/WEF.
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Guidelines on licensing climate change technologies on fair and
reasonable terms for developing counties?
Establishing technology and patent pools
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Patent pools have been proposed as a way to enhance
developing country access to climate change technology
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A patent pool is an agreement by multiple patent holders to
share intellectual property among themselves or to license a
portfolio of patents as a package to outsiders
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Use of patent pools to advance public policy objectives has been
limited.
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Patent pools may offer licenses to patents that developing
countries can use anyway, because the patent owners often do
not file there.
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Rules governing the patent pool arrangements are key.
Scaling up joint R&D and research collaboration
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Widely shared and recurrent policy option. The questions are
why is it not done more ? And how can it be scaled up?
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Overall, there is little joint R&D and research collaboration in
the areas of CC technologies, even between OECD countries.
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Focus tends to be on “pre-competitive” stage of technology
development.
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In many countries, universities are not allowed to license
technology funded by their national government to foreign
firms.
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Useful models, examples and options to consider:
 IEA agreements (ITER)
 EU experience in joint R&D and innovation between its
member countries
 Role of bilateral science and technology agreements
Greater use of public private partnerships (PPPs)
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PPPs have proved useful in the health area to address
situations of market failures such as research into
neglected diseases.
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In the are of climate change technologies, they could be
particularly useful in relation to technology transfer to LDCs
where traditional market mechanisms do not operate
effectively.
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Question remains: how to provide incentives to private
sector to participate in such partnerships?
Support to research and innovation efforts
in developing countries and LDCs
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Integrate of CC technology as a priority in national innovation
and S/T policies and strategies.
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Regional innovation centres and networks. What would be their
IP policies?
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Explicit recognition of the role developing country universities
and research institutions in climate change technology.
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Capacity building for skills like technology management, use of
the IP system and licensing contract negotiations.
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Emphasis on international financial support for national
technology innovation plans based on national needs and
capacities (as defined by developing country parties)
Conclusion
Broader policy questions:
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How do we balance appropriately innovation and
access?
Should the IP system operate in a business as usual
mode when it comes to climate change ? does the scale
and urgency of the climate change challenge require
special measures to be taken to ensure that the IP
system contributes effectively to the wide scale
dissemination of climate technologies on an affordable
basis?
Thank you
ICTSD Global Platform on Climate Change, Trade
Policies and Sustainable Energy
ICTSD initiative on
Climate Technology
and Trade
www.ictsd.net
[email protected]