By Miriam Silvestri1, Núria Zanzottera2, and Vanesa Martínez1
1– IP expert engineers,
2– Environmental expert engineer
Global Climate Change and Green Patents: Introduction
According to the IPCC Sixth Assessment Report – Intergovernmental Panel on Climate Change – published this year, scientists are observing changes in Earth’s climate in all regions and in the climate system as a whole.
Greenhouse gas emissions from human activities are responsible for a warming of approximately 1.1 °C from 1850-1900, and the global average temperature over the next 20 years is projected to reach or exceed warming of 1, 5 °C.
If we want to stabilize the Earth’s climate, it will be necessary to reduce substantially, rapidly, and sustainably greenhouse gas emissions and increase sinks to finally achieve net-zero emissions. In order to achieve this, a large-scale technological and cultural change will be necessary, which shall develop at a higher rate than what we know to date. Furthermore, it is unquestionable that, given the expected changes, some kind of climate change adaptation will be required, and that said adaptation will also require a certain degree of technological change, as well as the reparation of the damages and losses as a consequence of climate change.
To a great extent, the study of innovation and technological change has been motivated by the desire to improve the quality of life and economic development, improving competitiveness in a market economy.
This explains the relationships existing between technological innovation and global climate change, where international adaptation and mitigation commitments drive innovation and the development of new technologies.
“GREEN” PATENTS: CODES OF THE COOPERATIVE PATENT CLASSIFICATION
Technological development and innovation are important drivers of economic growth and productivity. The dimension of technological development is observed in the evolution of patent applications filings in the field of climate change.
As of the entry into force of the Cooperative Patent Classification (CPC) system on January 1st, 2013, section Y was added, class Y02 being the one for technologies or applications for mitigation or adaptation to climate change. This class identifies all the innovations with the capacity to reduce GHG emissions, increase resilience or decrease the vulnerability of people, ecosystems, and resources, and repair damage and losses that are consequences of climate change.
Evolution of technologies
To appreciate the evolution of these technologies, a search has been carried out for said codes of the cooperative patent classification using different databases.
Figure 1 shows that the number of patent applications filed per year is closely linked to international commitments on climate change.
Created in 1992, the United Nations Framework Convention for Climate Change carries out international negotiations to face climate change, establishing international commitments to reduce greenhouse gas emissions, such as the Kyoto Protocol and the Paris Agreement.
International protocols and agreements on climate change
The Kyoto Protocol drove patent applications from its entry into force in 2005 until the end of its first commitment period in 2012.
The implementation experience of the Kyoto Protocol shows that technological innovation in climate change issues is driven by the existence of a market scheme that facilitates climate ambition by reducing mitigation costs. It is evident in the graph that the drop in the number of patents applied per year from 2013 onwards reflects the lack of international commitments and thus a drop in the demand for technological developments in the matter.
The Paris Agreement, signed in 2015, represents a new international commitment to tackle climate change. One of the objectives of the Paris Agreement is to “keep the global average temperature rise below 2 °C with reference to pre-industrial levels, and to continue efforts to limit that temperature rise to 1.5 °C with reference to pre-industrial levels, understanding that this would reduce considerably the risks and effects of climate change”.
However, the lack of clear rules for its implementation has significantly delayed the development of measures of mitigation and adaptation to climate change.
Finally, at COP26 held in Glasgow, the rules for the implementation of Article 6 of the Paris Agreement were completely defined, which included alternatives for the transfer of mitigation actions between countries and between private parties, opening up the possibility for market mechanisms that facilitate the implementation of mitigation measures by countries and private parties.
Most probably, this agreement will allow increasing technological development in the coming years and will mean a new impetus to technological development aimed at improving people’s life quality, ecosystems through sustainable development.
Figure 2 shows that the greatest inventive efforts have been concentrated in the technologies covered by the following subclasses: Y02E, Y02P, and Y02T.
These results are consistent with the global trend of trying to abandon the use of fossil fuels by replacing them with alternative, renewable and cleaner energies, such as wind or ocean energy, due, among other reasons, to negative effects such as the health risk due to the pollution produced by fossil fuels.
Figure 2: Number of patent applications in each subclass of class Y02.
INDUSTRIAL PROPERTY AS AN INCENTIVE FOR THE DEVELOPMENT OF NEW TECHNOLOGIES TENDING TO MITIGATE CLIMATE CHANGE
Innovation plays a key role in tackling climate change, as stated in the Paris Agreement on Climate Change (Article 10), which states: “To provide an effective and long-term global response to climate change and to promote economic growth and sustainable development is essential to enable, encourage and accelerate innovation”.
The IP system promotes innovation, as well as technology transfer and diffusion, including climate-smart technology. While IP rights provide incentives to develop new solutions, they can also help spread innovation where it is most needed, through, for example, licensing agreements or joint ventures.
Therefore, in order to encourage the development of new technologies related to global climate change mitigation, several patent offices around the world have implemented accelerated granting mechanisms to grant exclusive rights of protection to the holders of these technologies in a short period. In this regard, the World Industrial Property Organization points out the following: The promotion of environmentally friendly innovation has become a fundamental priority of national and international environmental policy. Intellectual property (IP) regimes, particularly patent laws, are perhaps the most important of the regulatory means that promote technological innovation. For this reason, several national Industrial Property offices have put into effect measures to accelerate “green” patent applications. The first program was set forth by the UK in May 2009. Australia, Israel, Japan, the Republic of Korea (ROK), and the US followed in the same year. More recently, Canada (in March 2011) and Brazil and China (in 2012) launched similar programs. Under these programs, the period required to obtain a patent can be greatly reduced – from several years to just a few months.
Requirements to apply for the benefits of such accelerated programs:
Eligibility requirements determine which patent applications can participate in accelerated programs. Particularly, subject eligibility defines the green technology categories eligible for an accelerated exam. Each office determines which technology types are included within the benefits of said accelerated patent grant programs.
In Australia, Canada, and the UK, all eco-friendly inventions are eligible. The applicant only has to submit a statement explaining why the invention has environmental benefits.
However, Brazil, China, Japan, and the United States establish some restrictions on the permitted technologies. For example, in Japan, only energy and carbon-saving technologies are allowed. Instead, the Republic of Korea has the strictest requirements, including a framework of specific technology classes listed. In the Republic of Korea, technologies (particularly renewable energy) are generally eligible as long as the invention is funded or accredited by the government, or if it receives a “green certification” under the relevant government environmental legislation. The Israeli program also defines subject eligibility through strictly numbered technology classes, although it does not have a funding or certification requirement.
The process requirements are restrictions that are not related to the patentable subject, such as limitations on the number and type of claims allowed, and parameters such as fees and costs of applying for these expedited programs. These requirements vary considerably between different patent offices. For example, the Australian IP offices and the Canadian Intellectual Property Office (CIPO) allow an unlimited number of claims; whereas the claim fees established by the Japanese Patent Office (JPO) can make the cost of a larger set of claims prohibitive.
Similarly, the Australian patent offices and the CIPO are fairly liberal on the unity of invention (the requirement that a patent application is related to a single invention or a group of closely related inventions), whereas the JPO is stricter in this regard.
Most programs do not charge additional fees for the expedited exam. However, some offices require applicants to perform a prior art search and the comparison of the claimed invention to the closest prior art. Obtaining a patent title in a short period implies that the applicant can license the technology and facilitates private capital obtention as well as asserting the exclusive rights against potential infringers.
On the other hand, there might be well-founded reasons why applicants do not want the publication or grant of the patent in an expedited manner. With the conventional procedure, the applicant defers the granting costs and is allowed to determine the best possible scope of protection with more time during the examination of the application, deciding, at the same time, whether the future patent is a commercially useful tool for his interests.
Regarding Latin American countries, the initiatives of Chile and Brazil are worth mentioning. On the one hand, Brazil supported the promotion and granting of green patents as a mechanism to respond to the commitments made under the Paris Agreement (NDC). After four years in the pilot program modality, the examination of priority “Green Patents” became an INPI permanent service from December 6th, 2016, due to the good results obtained. From the 480 applications submitted during the pilot program, 325 were deemed eligible, 112 applications were accepted, and 115 were rejected, as of September 2016. The maximum time for these decisions was approximately two years.
The examination of priority “Green Patents” aims to contribute to global climate change by accelerating the examination of applications related to environmentally oriented technologies. It also makes it possible to identify new technologies that can be quickly used by society, stimulating their licensing and fostering innovation in the country.
Regarding the strategies implemented by the Chilean office, the National Institute of Industrial Property (INAPI) has shown great interest in stimulating the submission of new applications that make our planet sustainable and improve the life quality of citizens.
Known as “Green Patents”, these inventions are related to technologies that respect the natural habitat and are “friendly to the environment” and allow the sustainable use of natural resources and which favor –for example– to solve problems caused by large emissions of CO2 into the atmosphere, promoting different types of energy (such as the conversion of biomass into heat), as well as treating polluted water, among other actions. This becomes particularly important at a time when human beings must improve their response to the great challenges that nature presents in what has been called “climate change”.
For this reason, INAPI aims to strengthen relationships between universities and their innovation, companies and their great R&D&i effort, and research centers, whose increase in initiatives that take care of our environment and thus stimulate the submission of inventions related to “Green Patents” is expected.
At an international level, the Green Technologies Pilot Program of the US Patent and Trademark Office stands out, a decision that could anticipate the analysis of 3,000 applications associated with this type of technology as long as certain requirements are met.
As observed, this is an international effort that is producing its first results, and we hope that in the not-too-distant future it will continue to increase.
CONCLUSION OF GLOBAL CLIMATE CHANGE AND GREEN PATENTS
Greenhouse gas concentrations are at their highest and emissions continue to rise. As a result, the Earth’s temperature is now 1.1 °C higher than at the end of the 19th century. The last decade (2011-2020) was the warmest on record.
The consequences of climate change now include, but are not limited to, severe droughts, water shortages, severe fires, rising sea levels, floods, melting of the poles, catastrophic storms, and declining biodiversity.
Climate change can affect our health, ability to grow food, shelter, safety, and work. Some of us are already more vulnerable to climate impacts, such as people living in small island nations and other developing countries. Conditions such as the sea-level rise and saltwater intrusion have advanced to the point where entire communities have had to relocate, and prolonged droughts are creating a risk of famine. The number of “climate refugees” is expected to increase in the future.
In a 2018 UN report, thousands of scientists and government reviewers agreed that limiting global temperature rise to no more than 1.5 °C would help us avoid the worst climate impacts and maintain a livable climate. However, under current national climate plans, global warming will reach 2.7 °C by the end of the century.
The emissions that cause climate change come from all parts of the world and affect everyone, but some countries generate much more than others, and industrialized countries have emitted GHG gasses for more than 150 years. The 100 countries that emit the least generate 3% of total emissions. The 10 countries with the highest emissions contribute 68%. Everyone needs to take action when it comes to climate, but people and countries that create the most problems have a greater responsibility to act first.
Therefore, it is imperative that countries seek sustainable and clean solutions to mitigate the dramatic effects of global climate change through the development of new environmentally friendly technologies that reduce greenhouse gas emissions and do not use fossil fuels.
The challenge from Industrial Property is to generate administrative tools that promote the development of these technologies by generating mechanisms that favor the granting of patents in these areas of interest while strengthening patent systems to ensure that legitimate rights of applicants about their inventions are safeguarded.
- Revista OMPI 2013- document written by Antoine Dechezleprêtre, Grantham Institute of Climate Change and the Environment, London School of Economics (Reino Unido) and Eric Lane, Patents and trademarks Layer of McKenna Long and Aldridge, San Diego (USA) https://www.wipo.int/wipo_magazine/es/2013/03/article_0002
- European Patent Office – https://lp.espacenet.com/?locale=pt_LP&view=patentesverdes1
- Quotes: Esteban Figueroa, INAPI’s Deputy Director of Patents
- Publication of INAPI Number 2, Year 1, February 2011-Inapi. https://www.inapi.cl/portal/publicaciones/608/articles-704_recurso_1.pdf