Intellectual Property Law and Climate Change

Executive summary

Intellectual property law involves the establishment and protection of intellectual creations, and climate change has affected both of these aspects. Technology is vital to addressing climate change, as recognised by Article 10 of the Paris Agreement. Relevant technologies include, inter alia,clean energy innovations, greenhouse gas removal solutions, and low-emission agricultural equipment. These technologies are often protected by patents. Patents may be a barrier to disseminating certain technologies, but are also vital to encouraging investment in green technologies by ensuring that their creators can reap financial benefits. Though each regime deals with separate relationships and issues, there is a link between climate change laws and intellectual property law globally. ^[1]   

The interchange between IP law and climate change also extends to both copyrights and trade marks. Relevant copyright issues may range from accessing the latest climate research to the software distribution required to manage power grids. Similarly, increasing consumer awareness of climate change has resulted in brands investing in trade marks that signify their climate commitments. Given the pace required to meet global climate targets, many technologies must be scaled up now to avoid and adapt to climate impacts. IP law clearly has a role to play in ensuring that these vital technologies are developed and proliferated.

Key points in this section:

• Patents are important to protecting the economic rights to green products and technologies. The UK’s Green Channel for patent applications allows for faster processing of environmentally beneficial patent applications, but not all patent applicants may benefit from fast-tracking.
• Intellectual property law may act as a barrier to transferring important climate-related technologies from highly developed countries to the developing world. Experiences during the COVID-19 pandemic indicate that facilitating technology transfer may involve adopting a waiver to the Trade-Related Aspects of Intellectual Property Rights regime.
• Patent pools and initiatives such as WIPO Green can allow easier sharing of intellectual property between patent owners and purchasers, and also serve a capacity-building function.
• As in other areas of law, there may be disagreements about the definition of ‘green’ or ‘sustainable’ technologies when deciding which intellectual property should qualify for special procedures and programmes.  

How climate change is impacting intellectual property law

Climate change has already impacted IP law, in both the establishment and protection of IP through patents, copyrights, and trademarks. This section will examine these three aspects of IP law in turn, before outlining IP law’s wider role in the diffusion of technology related to climate change.

Climate change and patents

Climate change has influenced the landscape of patent applications, with the filing of ‘green patents’ outpacing the filing of other, non-environmental patents in many major economies.  In the UK, The Green Channel for patent applications was introduced in May 2009, one of the first of its kind in the world. The scheme is available to any patent applicant that asserts their invention has some environmental benefit, and allows applicants to request accelerated processing of their patent. Similar schemes have been adopted globally in countries such as Australia, Canada, and China. The main benefit of these accelerated schemes is that they help those granted a patent to raise private capital, as well as providing legal recourse in the event of patent infringement.^[2] 

However, empirical analysis has revealed that only 1 to 20% of eligible patents actually go through these schemes.^[3] This may be for multiple reasons. First, keeping a patent application in the examination process delays the costs associated with grant (renewal fees etc.), and allows the applicant greater time to consider whether their idea is commercially viable. Second, an early patent grant would mean any subsequent substantial changes to the invention may result in others circumventing the initial patent. Third, a patent publication reveals important information about present research and development to competitors, giving clear signals of the applicant’s business strategy.^[4] While fast-tracking patent filings of climate-related technology may appear to be a straightforward way of incentivising innovation, not all patent applicants might benefit from such procedures.

Climate change and trade marks

Like patents, an increasing number ‘green’ trade marks are being filed. A study focused on the EU Intellectual Property Office (EUIPO) revealed a 900% increase of sustainability trademark filings between 1996 and 2020.^[5] This reflects consumer behaviour that is increasingly sustainability-minded – UK consumers spent £41 billion on sustainable goods and services in 2019, about four times as much as they did at the turn of the century.^[6]

However, as sustainability-related trademarks become more common, issues surrounding greenwashing are becoming prevalent. Greenwashing is a practice in which organisations purport to be doing more for the environment than they actually are. By some estimates, 40% of green claims are unsubstantiated. If sufficiently misleading, such claims may lead to the revocation of trade marks under UK law.^[7]  Companies such as Alpro^[8] and Innocent^[9] have fallen afoul of advertising standards as their environmental claims were deemed to be misleading.  Conversely, companies aiming to reduce reliance on emissive practices may also face barriers. Oatly’s claim of being “milk but made for humans” has ignited legal debate regarding whether plant-based substitutes can by advertised as belonging to the same product categorization as animal products. ^[10] Given the increasing popularity of alternatives that replace traditional products, which is partly driven by climate concerns, these debates surrounding trade marks may continue.

Climate change and copyright

While copyrights may not immediately seem relevant to climate change, they can intersect with climate change in a several ways. For example, the International Council of Museums has raised concerns about the protection of cultural heritage in the face of climate change, especially since museums might not hold related copyrights for their collections. It also identified that the laws surrounding making copies for preservation is unclear.^[11] International events have demonstrated why this might be important:  the flooding of the River Seine in France in 2016 necessitated moving of 35,000 pieces of artwork stored in the Louvre within 48 hours, and the 2019 wildfires in California threatened The Getty Center and forced its closure. While the world is racing to mitigate further climate impacts, extreme weather events are already threatening important property. 

IP law as a barrier to technology transfer

It is unclear whether IP law may act as a barrier to technology transfer, especially in the context of green technologies. A 2008 analysis examined wind, solar, and other power generation technologies and found that patents had no impact on preventing countries from adopting the technologies, as the patents frequently concerned improvements rather than the underlying core inventions.^[12]   Other studies have supported this argument, with one examination of royalty-free green patents showing that they did not increase the diffusion of the technology compared to their non-royalty-free counterparts.^[13] Rather, it has been suggested the main barrier to technology transfer is not IP law protection, but the country’s openness to trade (a measure of a country’s integration into the global economy).^[14]

However, the debate surrounding whether IP law may act as a barrier to technology transfer is far from settled. The COVID-19 pandemic resulted in the WTO adopting a waiver on Trade-Related Aspects of Intellectual Property Rights (TRIPs), allowing WTO members to exploit a patent linked to producing COVID-19 vaccines without the consent of the right holder via a mandatory licence.^[15] However, this decision came multiple years into the pandemic, with the pre-existing regime largely failing to quickly disseminate vaccines to least-developed countries. Similar calls have been made to adopt a waiver for climate-related technologies, with some having criticised the TRIPs regime for impeding green technology transfer to developing countries.^[16] The TRIPs Council has discussed the importance of enabling green technology transfer, and the WTO has helped run symposia on this topic, also including climate issues in some technical assistance activities.

How intellectual property law can help to address climate change

Patent Pools and WIPO Green

Another way in which IP laws can help address climate change is the creation of patent pools.  Patent pools are agreements between intellectual property owners (typically on patents, copyrights and trade secrets) to ‘pool’ (share, transfer) their intellectual property through conditional licensing while relinquishing exclusionary rights to the property.^[17] Blanket patent waivers are sometimes inefficient in solving crises – for example, the production method of COVID-19 vaccines was covered by a variety of patents and licenses, which means a singular patent waiver would not have enabled countries to produce their own vaccines.^[18]  Initiatives such as the Eco-Patent Commons aimed to pool technologies in order to facilitate solving the climate crisis. While the Eco-Patent Commons initiative was not successful in achieving all of its goals, some suggest that this was because of a lack of focus from the organisers rather than an unsound idea.^[19]

In 2013, the World Intellectual Property Organization established ‘WIPO Green’, a platform for sharing green technologies and innovations. The project is one of WIPO’s contributions to implementing the United Nations’ Sustainable Development Goals as a specialised agency of the UN. WIPO Green is not a patent pool, but a marketplace for transactions between patent owners and purchasers. Arguably more successful than the Eco-Patent Commons,^[20] WIPO Green brings patent owners and purchasers together through events and exhibitions, provides additional resources such as guidance and funding sources, and provides a lower rate for assisting with filing patents and WIPO dispute resolution services.

Definitional issues

Determining what it means to be ‘green’ is relevant to IP law.^[21] This relates to greenwashing issues with trade marks identified above, but may also be relevant when determining whether patents can benefit from accelerated green processing schemes. While some inventions such as those related to windfarms will not require much justification to access patent fast-tracking, more peripheral technologies (such as inventions concerning production line efficiency) will require more explanation. Although the UK’s Green Channel does not use a specific definition of ‘green’, WIPO Green uses the definition provided in Chapter 34 of the UN’s Agenda 21 which states that green technologies “protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products, and handle residual waste in a more acceptable manner than the technologies for which they were substitutes”.^[22] This definition recognises the wide range of technologies that may help drive the net zero transition, but does not set clear criteria for what could be labelled as ‘green’.

As mentioned, ambiguity surrounding what can be defined as ‘green’ has led to greenwashing-related intellectual property issues, particularly relating to trade marks. The financial services industry is tackling a similar problem with regards to financial products that are given a ‘green’ or ‘ESG’ label. Governments have responded by creating ‘green taxonomies’ that outline which industries and businesses may fall under green investments. Naturally, applying such criteria to new technologies rather than existing activities may be more difficult. The CMA has published general guidance on such misleading claims, and IP lawyers may play an important role in helping businesses correctly trade mark their property.

Humanitarian licences

Humanitarian licences are another tool for striking the balance between transferring technology and protecting economic rights. Humanitarian licenses have been used in the pharmaceutical industry, where companies have agreed to limit their profits for their medication in order to preserve quality of life. In essence, they allow end-users to use the relevant technology if it for a humanitarian cause, whereas other uses will still be governed by standard licensing procedures. Humanitarian licenses may be used in the context of technology that aims to address climate change.^[23] While humanitarian licences in the context of pharmaceuticals often disseminate technology with a more acute impact than most green technologies on a more isolated problem than climate change, there are nonetheless parallels. These licences may be useful in the context of climate adaptation, for example by helping communities in the developing world access technologies that helps prevent damage from extreme weather events. However, the failures of international patent law during the COVID-19 pandemic may also indicate future challenges in creating and utilising effective humanitarian licence for green technologies.

[1] Abbe EL Brown, ‘Intellectual Property and Climate Change’ in The Oxford Handbook of Intellectual Property Law (OUP, 2017).

[2] Eric L. Lane, ‘Building the Global Green Patent Highway: A Proposal for International Harmonization of Green Technology Fast Track Programs’ in Berkeley Technology Law Journal (2012).

[3]Antoine Dechezleprêtre,  ‘Fast-tracking Green Patent Applications: An Empirical Analysis’ in ICTSD Global Platform on Climate Change, Trade and Sustainable Energy Issue Paper No. 37 (2013).

[4] Ibid.

[5] European Union Intellectual Property Office, Green EU Trade Marks: Analysis of Goods and Services Specifications, 1996-2020. (EUIPO, 2021). <https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Green_EU_trade_marks/2021_Green_EU_trade_marks_FullR_en.pdf>.

[6] Competition and Markets Authority, ‘CMA to examine if ‘eco-friendly’ claims are misleading’. (CMA, 2 November 2020). <https://www.gov.uk/government/news/cma-to-examine-if-eco-friendly-claims-are-misleading>.

[7] Trade Marks Act 1994. Section 46(1)(d).

[8] ASA Ruling on Alpro (UK) Ltd t/a Alpro. 2021.

[9] ASA Ruling on Innocent Ltd t/a Innocent. 2022.

[10] Oatly AB v EUIPO (IT’S LIKE MILK BUT MADE FOR HUMANS). 2021. T-253/20.

[11] International Council of Museums, ‘Climate Change and Copyright Laws: the Challenge of Safeguarding Our Heritage’ (ICOM web site, 2020). < https://icom.museum/en/news/climate-change-and-copyright-laws-the-challenge-of-safeguarding-our-heritage/>.

[12] John H. Barton ‘Intellectual Property and Access to Clean Energy Technologies in Developing Countries: An Analysis of Solar Photovoltaic, Biofuels and Wind Technologies’ in ICTSD Issue Paper No.2 (International Centre for Trade and Sustainable Development, 2007).

[13] Bronwyn H. Hall and Christian Helmers, ‘Innovation and Diffusion of clean/green technology: can patent commons help?’ in Journal of Environmental Economics and Management. (2013).

[14]Jinkai Li et al ‘Does Intellectual Property Rights Protection Constitute aa Barrier to Renewable Energy? An Econometric Analysis’ in National Institute Economic Review (2020).

[15] WTO Ministerial Conference, Ministerial Decision on the TRIPs Agreement, (World Trade Organization, 17 June 2022). <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN22/30.pdf&Open=True>.

[16] Khorsed Zaman, ‘The TRIPS Patent Protection Provisions and Their Effects on Transferring Climate Change Technologies to LDCs and Poor Developing Countries: A Critical Appraisal’ in Asian Journal of International Law (2012).

[17] Michael A. Carrier, ‘An Antitrust Framework for Climate Change’ in Northwestern Journal of Technology and Intellectual Property (2011).

[18] Ana Santos Rutschman and Julia Barnes-Weise, The COVID-19 Vaccine Patent Waiver: The Wrong Tool for the Right Goal (Bill of Health blog, 5 May 2021) <https://blog.petrieflom.law.harvard.edu/2021/05/05/covid-vaccine-patent-waiver/>.

[19] Caoimhe Ring, ‘Patent Law and Climate Change: Innovation Policy for a Climate in Crisis’ in Harvard Journal of Law & Technology (2021). 

[20] Christopher J. Clugston, ‘The Infamous Failure of the Eco-Patent Commons and the Quiet Success of the WIPO Green Project: What We Can Learn About Disseminating Green Tech to Developing Countries’ (2021)

[21] Maureen Beacom Gorman, ‘What does it mean to be green: a short analysis of emerging IP issues in “green” marketing’ in The John Marshall Review of Intellectual Property (The John Marshall Law School, 2010).

[22] United Nations, ‘Chapter 34: Transfer of Environmentally Sound Technology, Cooperation and Capacity-building’ in Agenda 21 (1992).

[23] Andrea Nocito, ‘Innovators Beat the Climate Change Heat with Humanitarian Licensing and Patent Pools’ in Chicago-Kent Journal of Intellectual Property (2018).