The Curious Incident of the Dog in the Night-Time

On the third day after Copenhagen I became aware of a deafening silence…

Battling climate change is a global challenge where technology will play a central role, in many ways analogous to that of vaccines and pharmaceuticals in fight for global health. Most fundamental research and technology development will occur in the developed world with a need to be transferred and deployed, whether in its original or locally modified form, in many third world countries. As with the intellectual property issues of pharmaceuticals in global trade environments, I expected to learn about IP issues being central to the discussion in Copenhagen. What I heard related to IP issues over the five days I spent at COP15 was…..nothing.

As with the curious incident of the dog in the night-time in the Sherlock Holmes classic “Silver Blaze”, this silence piqued my interest and warranted further investigation. Are issues of IP a non-issue in the fight against global warming? Have they already been resolved? Or perhaps is it the purview of another forum, such as the World Trade Organization (WTO).

My subsequent investigation uncovered IP issues are in fact central to the work of the UNFCC with much emphasis placed on the topic in the preparatory meetings leading up to COP15. This work was captured in a paper interestingly called “Non-Paper 47,” which was developed in the Barcelona meeting of November 2009 under the Ad Hoc Working Group On Long-Term Cooperative Action (AGWG-LTC), with some follow-on work performed during week one of COP15.

Non-Paper 47 contains a number of IP-solution suggestions ranging from developed countries having no patent protection on green technology, to setting up a patent pools for green technology, to ensuring that developing countries can make full use of the flexibilities found in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) - including compulsory licensing - and cooperation on future research and development of green technology.

As with pharmaceuticals, the Parties are far apart of the issue of IP protection of green technologies. Developed nations are adamant that a strong IP protection framework is essential to innovation, while the G77 group of developing countries and others take the position IP is a barrier adoption and must be removed. Much of the debate focuses on trade rules, and what has been learned from TRIPS. For example, patents on some green technology could be removed for developing countries and compulsory licensing could also be considered. Today compulsory licensing of pharmaceuticals is allowed under TRIPS, but each technology has a lot of patents and the developing countries have to go to each country and company and apply for a license, which does not make sense when technologies must be deployed are rapidly as possible.

New technologies will be at the core of new solutions that address climate change. It is important that the right IP framework is put in place the to foster innovation without creating barriers to timely and successful deployments.