Carlos Correa, in support of his argument that “patents … create a barrier to the adoption of low-carbon energy systems in developing countries,” has presented several pieces of information that do not, in my view, tell the whole story about the relationship between intellectual property rights and clean-energy technology.
Correa observed in Round One, for example, that “companies based in developed countries own an overwhelming majority of patents related to low-carbon energy technologies.” That is correct. But this phenomenon is not specific to low-carbon energy. The same situation prevails in many sectors of technology—even taking into account the increasing number of patents owned by companies in some emerging economies, particularly China.
Correa also noted in Round One that patents associated with low-carbon energy systems have proliferated in recent years. True again, but this proliferation only mirrors a broader global surge in patent filings that, over the past two decades, has occurred in all fields of technology.
By themselves, global patterns of patent ownership do not automatically or systematically present barriers to the diffusion of low-carbon technologies. Increased patent filings don’t automatically represent barriers either. The same patterns that characterize clean-energy patents are also prevalent in fields such as information and communications technology, but the diffusion of these technologies has not been inhibited.
In addition, Correa identified “patent thickets” as an obstacle to the diffusion of clean-energy technology, but there seem to be no well-documented cases in which patent thickets have prevented access to or diffusion of green technology. Finally, Correa stated that “in the United States, thousands of patents have been subjected to compulsory licenses in order to remedy anticompetitive practices, or simply for the use of the government or its subcontractors.” In this regard it is worth mentioning that the United States is one of the few countries with legislation—the Clean Air Act—that actually contains a provision for compulsory licenses for a category of clean-energy technologies. But it should also be noted that no applications for compulsory licenses have been filed under the Act so far and no licenses have been granted.
Still, Correa was correct to argue in Round Two that developed nations should be willing, either at the World Trade Organization or within the United Nations Framework Convention on Climate Change, to engage in constructive discussions about intellectual property rights and the transfer of low-carbon energy technologies. Developed countries must not simply refuse to engage in discussion, or deny that a problem even exists. But it’s also important for developing countries not to put the cart before the horse. Beginning discussions with proposals for sweeping changes to the rules that govern global intellectual property rights will not necessarily advance these discussions and might only play into the hands of those who defend the status quo.
Both Correa and Frederick Abbott have emphasized the magnitude and urgency of the climate challenge. I fully concur with their sentiments. No one can ignore the challenge presented by climate change, remain indifferent to it, or simply advocate the status quo—and this applies to the intellectual property system. But technologies for low-carbon energy are extraordinarily diverse. Conditions differ significantly from country to country and from one economic sector to another. Such diversity suggests that a broad range of options and measures should be considered for addressing the linkages between intellectual property and climate change, but that no “silver bullet” will address all the issues. The problems that surround intellectual property and climate can only be addressed through an incremental, bottom-up approach based on empirical evidence about access to clean-energy technology in specific countries and economic sectors. In that direction lies the chance for constructive debate.