To IPR or not to IPR?

‘IPR’ (Intellectual Property Rights) is another of the many acronyms tossed around in the negotiations, primarily in the context of decisions around technology. It is an intriguing issue that has received a significant amount of blame as a barrier to technology transfer, when actually there has been little concrete evidence that this is the case. To fully understand the intricacies of IPR’s, requires an equally intricate legal brain. However in the context of the climate change negotiations, the IPR term is most commonly referring to ‘patents’. More precisely patents for clean technologies. The reason the issue of IPR’s is being discussed is that there is a divide between those who believe patenting is a barrier to the successful transfer of clean technologies, and those that don’t believe it is an issue at all.

In my simple understanding, there are two sides to patenting a technology which could be responsible for the contention around this issue – firstly patenting a technology means the knowledge becomes publicly available – good right? However if company A puts a patent on a technology, then it means that company B will have to pay to use this technology – not so good.

Without delving too much further into this issue – it is evident that there is a split in opinion for an obvious reason. Yet a solution as to how to deal with this divide within the negotiation process is undecided. Some Parties believe that there should be no reference to IPR in the text at all. There is some optimism that there could be some progress on the final form of the technology mechanism here in Cancun, however the ‘how-to-deal-with-IPR issue?’ is proving to be one of the sticking points.

Today a side event hosted by ICTSD, UNEP and the EPO (European Patent Office) introduced a new report Patent and Clean Energy: Bridging the Gap between Evidence and Policy.. The purpose was to provide policy makers with emperical information on the origin, application and use of patents as well as develop a publicly accessible patent database specifically looking at patents on clean technologies. This required a patent landscaping and a licensing survey exercise – with a section dedicated to developing countries. Of the developing countries 75% of the licenses are in BRICS countries and 25% in middle income countries – LDC’s were marginal.

Whereas there has been a preconception that IPR’s are a hinderence as developing countries don’t own sufficient patents, the authors found that much of the technology required for adaptation to climate change is available without owning the necessary IP. Much of the data in this report is from stakeholder engagement with companies – where the narrative from these companies has provided more tangible insight into the issue of IPR’s than from governments. In fact of the industry respondants 70% said they would be willing to provide more flexible licensing arrangements to companies in developing countries. Maybe this flexibility of licensing is an untapped potential for increasing the transfer of clean technologies into developing countries? Full report