How patent law supports the fight against climate change
Intellectual property agencies around the world want to back innovation that addresses climate change. Fast-tracking green technology patents is a key approach
Green technology will be crucial in the fight against climate change. This gives particular importance to patent law, which ensures innovators can protect and exploit their inventions. So how are intellectual property (IP) agencies supporting sustainability?
Some have already acted, implementing special treatment for patent applications in green technology. In May 2009, for example, the UK Intellectual Property Office (UKIPO) introduced the ‘Green Channel’, which offers an accelerated review of patents for technology that benefits the environment. Before that year was out, Australia, Israel, Japan, the Republic of Korea, and the US had launched similar fast-track schemes, followed by Canada in 2011, Brazil and China in 2012, and subsequently Taiwan.
Such schemes acknowledge the growing importance of green innovation. According to figures from the World Intellectual Property Organization (WIPO), there’s been a sharp rise in patent applications worldwide for green energy and energy-efficient technologies under the international Patent Cooperation Treaty (PCT). These were up from 7,804 in 2006 to 16,947 in 2020. Japan leads the way for applications by some margin, followed by the US, Germany, the Republic of Korea and China.
The rules governing such fast-track processes differ by country. In the UK, they’re reasonably straightforward, says Jonathan Higgs, director, patents at Murgitroyd, a law firm that specialises in the area. “Applicants must make a reasonable assertion that their invention has an environmental benefit and request accelerated treatment,” Higgs explains. “Sometimes a simple statement, like the invention is for a solar panel or wind turbine, will be sufficient. Other innovations may need more explanation.”
Some fast-track systems lead to real-time savings. “The general patent application process in the UK is pretty good,” Higgs says. Often the first search and examination report – official feedback on whether a claimed invention is new and inventive – can be produced within six months of filing, though this can be reduced to three months for a green application.
Such promptly issued UKIPO search and examination reports are a boon. They help applicants decide whether to invest in patent protection in other countries and provide a first indication of the scope of UK patent protection available to them. Green patents can be granted within six to nine months if any objections are dealt with quickly, whereas the normal process could take two years or even longer, says Higgs.
The fast-track process is similarly effective in other countries. Brazil saw 118 requests for accelerated applications for green technologies between January 2020 and March 2021, with a patent for a green invention possible within eight months.
IP offices elsewhere also see steady streams of applications. IP Australia has received 106 requests for expedited treatment for green technologies since 2016, while the Canadian Intellectual Property Office saw 595 since 2011.
Where no dedicated fast-track processing system exists for green technologies, it may still be possible to expedite patent grants through general acceleration programmes. The European Patent Office (EPO) was established under the European Patent Convention (EPC) and enables enterprises to obtain patent protection in 44 countries. It has an accelerated process for all technology sectors, meaning green inventions will often qualify. And while the US Patent and Trademark Office (USPTO) discontinued its Green Technology Pilot Programme, it offers other avenues for green inventions to receive accelerated treatment.
Aside from the tax relief that enterprises can achieve through a patent, the practical impact of expedited treatment may depend on the size of the applicant. “Large companies can often build the timescale for applications into their commercial programmes,” says Higgs. “But for smaller organisations and inventors, a quicker patents process can make a significant difference to gaining investment or in negotiating licence agreements and getting their product into the marketplace,” he adds.
A complex environment
However, not all applicants want their patents to be granted rapidly. “There can be sound reasons why organisations want to allow the usual procedure to take its course,” says Sullivan Fountain, a partner at IP law firm Keltie. For example, while a grant is pending, the scope of the patent isn’t fixed and is less clear to competitors.
“You have to examine each case to determine the best way for the client to proceed,” Fountain says. “But fast-track schemes for green patents are good tools to have in the toolbox if it makes sense commercially for a patent applicant to get a patent granted quickly.”
IP agencies offer various other measures to foster sustainability innovation. WIPO launched WIPO Green in 2013, an online platform that enables various players in climate change technology to connect and collaborate. In 2020 it relaunched a pro bono programme for legal support for those working in the field.
WIPO Green holds international business seminars, publishes a newsletter and broadcasts IP webinars. It will soon release an IP management checklist to help green enterprises assess their IP strategies.
Meanwhile, the EPO has established a dedicated classification scheme for green inventions, making it easier for users to search its vast database and retrieve patent documents that cover these technologies.
While green technology innovation is usually driven by commercial and political factors, IP law plays a crucial role in supporting green entrepreneurs. “Schemes like the UKIPO’s Green Channel can encourage innovation and they send the right message,” says Higgs.