A bottom-up approach is required

In Round Three, Carlos Correa pointed to biofuels, and concentrations of biofuel patents in developed nations, as an area of potential concern for developing countries seeking access to clean-energy technologies. "Litigation regarding biofuel patents has been quite intense," Correa wrote, "and demonstrates patent holders' determination to exclude possible competitors." But most of this litigation seems to occur between firms in developed countries. In any event—as argued by the late John H. Barton in his 2007 study on intellectual property rights and access to clean-energy technologies—licensing fees for biofuel technologies are unlikely to prevent developing countries from gaining access, assuming their own "systems are adequately efficient and they are not barred by tariffs." Also worth remembering is that a developing country—Brazil—is one of the world's leading producers and exporters of biofuels, specifically ethanol.

Correa also argued—speaking of low-carbon technologies more broadly—that "patent holders are often unwilling … to consider granting licenses, particularly if they prefer to supply the market in question through exports." Generalizations such as this are problematic: Conditions differ from one economic sector to another and also from firm to firm. In the wind sector, for instance, some of the industrialized world's leading manufacturers of wind turbines have indeed been unwilling to license technology to Chinese firms, and instead have opened their own production facilities in China. But other Western companies have granted licenses to, and established joint ventures with, Chinese firms. Also, though this is often overlooked, large wind-related manufacturing firms from countries such as India, China, and Egypt have sometimes acquired small and medium-size wind manufacturers in countries such as Germany and Spain, taking over their intellectual property portfolios. These South-North acquisitions might not represent a broad trend, but they do demonstrate that discussing technology transfer issues only in North-South terms can be too simplistic in the context of a rapidly changing global technology and innovation landscape.

In addition, Correa wrote in Round Three that anyone who argues for the proposition that intellectual property rights "will not create an obstacle to developing countries seeking access to low-carbon technologies" should "provide evidence that [transfers of protected technology] are occurring." Providing such evidence isn't difficult to do: A 2010 global licensing survey undertaken by the UN Environment Programme, the European Patent Office, and the International Centre for Trade and Sustainable Development demonstrated that a non-negligible amount of licensing for climate change technologies was in fact occurring between developed and developing nations. To be sure, licensing remains concentrated in a few emerging economies. But the survey identified significant potential for increasing the flow of licensing to the developing world—and also reported that 70 per cent of technology holders "were prepared to offer more flexible terms when licensing to developing countries with limited financial capacity."

In discussions of climate change and intellectual property rights, it's important to maintain a focus on the actual views and needs of technology recipients in the Global South. The Climate Technology Centre and Network, an entity established under the auspices of the United Nations to accelerate the transfer and diffusion of climate change technologies to developing countries, has received more than 30 requests for technical assistance from developing countries—and none of these requests has concerned intellectual property rights. If such requests emerge in the future, the Centre and Network should be in a position to assist countries in a pragmatic, solution-oriented manner. Such assistance should ensure that nations can avail themselves of all options available under existing international intellectual property rules.

In the meantime, several developing countries have submitted proposals related to intellectual property rights ahead of the UN conference on climate change to be held in Paris this year. These proposals have focused on concrete ideas such as using resources available through the UN-backed Green Climate Fund to defray—if needed—the cost of licensing climate change technologies.

Technologies for climate mitigation and adaptation are extraordinarily diverse. The effects of intellectual property rights vary according to sector, technology, and country. Nuance and differentiation are therefore required when these issues are examined. Generalizations don't achieve very much. Discussions about climate change and intellectual property rights should proceed incrementally, and focus on effective solutions to real-life problems.