The scientific consensus that the world’s climate is changing, together with other aspects of environmental degradation, due to human behavior is firmly established, and technology must undoubtedly help reverse this trend. A key justification for the existence of the patent system is that it encourages technical innovation, in particular through the fact that it causes the publication of information that might otherwise remain secret, enriching the store of available information to stimulate further innovation. In fields where innovation is urgently required, it seems obvious to tune the patent system to further encourage applications, and hence disclosure, in those fields.
When considering possible initiatives to encourage green innovation through increased patenting it is relevant to consider what incentives might be perceived of being of value to patentees. The main concrete initiatives that have been implemented so far generally relate to accelerating the examination process. Although patentees often find the patent process to be drawn out, it is not clear that they are strongly incentivized by a shorter process insofar as this has no impact on the overall costs – indeed, they are as likely to prefer the costs to be spread out over a long period. One might suggest a reduction of official fees for green patents, but official fees are a relatively small part of the overall cost of acquiring a patent and again unlikely to have a great impact on patent filings.
In parallel with the issue of encouraging innovation, consideration must be given to the possible chilling effect of increased patenting, whereby it becomes difficult to release a new green product while running the gauntlet of a dense patent landscape. Clearly, encouraging innovation while discouraging adoption would defeat the purpose of the exercise. Suggestions have been made to reduce the period of protection for green patents, but this of course will act as a disincentive for the filing of a patent application in the first place.
One area where new patentees are often disappointed is the discovery that they are on their own as regards the enforcement of their rights. My suggestion is that a program comparable to the Strategic GPL Enforcement Initiative of the Software Freedom Conservancy might be established, which would establish license agreements with Patentees whereby, in exchange for an undertaking to license their patent on FRAND terms for Green activities, patenees would receive free litigation and negotiation support against infringers. This program may be financed by contributions from states, enterprises and possibly a contribution from licensing revenues and/or adjudged damages. The program might also mediate the definition of FRAND terms.
It may be hoped that the availability of this service to ensure a fair remuneration for the development and disclosure of green technologies should encourage innovators to seek to patent their inventions.
Of course, some patentees may be discouraged by the loss of exclusivity that this approach implies. It should be born in mind that for a SME without the means to enforce its rights this exclusivity is often illusory in practice, and that there is a tendency in case-law in many jurisdictions to shy away from absolute injunctions (for example eBay v. MercExchange in the US). Joining the proposed program will in any case be voluntary on the part of the patentee, although preferential rules may be imagined to encourage early adherence, e.g. from the date of publication of the patent application, rather than from the detection of an infringement. Patent offices could adapt their procedures to call the attention of patentees to this option.
This approach has the further benefit of being independent of the patent law of any state, so that it could be set up with little delay, although international cooperation on financing will no doubt be necessary for full implementation. This is certainly an opportunity for first world states to make a tangible contribution to climate change.
Another issue relates to the delimitation of patents classified as green for these purposes. Although such a delimitation is necessary to justify the preferential treatment made available to this class, it is in practice difficult to fix. The ENVTECH search strategies adopted by the OECD define about 80 technical fields relevant to the preservation of the environment, based largely on the Y02 classification keys defined in the EPO’s ECLA system. One approach might be to consider such classifications to be definitive as regards the Green status of a patent. The engagement of Patent Offices may be solicited to ensure a consistent approach from office to office, and to provide for a review mechanism to allow for classifications a posteriori at the patentee’s request.
It may be hoped that a system along these lines would work in the interests of both patentees and society at large, with view to better harnessing technical innovation in addressing environmental problems.