A new issue -- and a guest editorial on IP and the environment

Another year, another journal cover colour. The livery chosen for JIPLP's cover in 2011 is a handsome purple, depicted on the right.  While the January 2011 issue is available online in full to subscribers, its contents are available to everyone and you can check them here.

The editorial for this issue is a guest piece, written by Editorial Board member and Scottish solicitor Gill Grassie (Maclay, Murray & Spens, LLP).  It reads like this:

"Pooling together: IP as hero or villain?

Many stimuli exist for developing sustainable new clean green energy resources and the technologies they involve. Traditional fossil fuels are running out and nuclear is often viewed as unsafe. Crucially, global warming has become an accepted priority for the world to tackle. As the 2012 Kyoto Protocol deadline for reducing greenhouse gas emissions approaches, the focus increases on developing clean, sustainable, energy resources. In Scotland, the First Minister has set a target of 80 per cent electricity generation from renewables by 2020. These factors combine to create a perfect storm in which the renewables industry has an opportunity to take centre stage as the realistic solution to the imminent global crisis.

Can the IP regime play a key role in delivering these ambitious goals, thus becoming a world ‘saviour’, or will it be portrayed as the villain? Can we balance exploiting an organization's technology for monetary gain using the traditional IP system with removing barriers to innovation to establish viable green energy resources? IPRs (particularly patents) are often criticized as inhibiting innovation and as being morally reprehensible. Is this the chance to shake these perceptions off?

At a relatively early stage of the emerging renewables market where some basic technologies are already old, investors and businesses want to protect their investments/technologies by securing patent protection, hence the sharp rise in patent filings in various different green energy sectors since the late 90s (wind energy patent applications in 2007 were around 1400 compared to about 100 in 1995; carbon capture energy technology patent filings have trebled since 2000). Stronger government policies in key markets and growth in private investment have encouraged this rise.

Patent prosecution can take a long time. To accelerate the process, the UK and the USA have introduced a fast-track process to examine green technology patents with a claimed turnaround of 12 months. Whether this timescale is achieved is another question—and patent protection is not enough on its own.

Other initiatives currently under trial include the introduction of green patent databases which collate all so-called ‘green’ patents into one database. This will consist of a fast-tracked patents application process, creating a general pool as opposed to collating specialized sectoral technology (wind, tide, hydro, carbon capture, photovoltaics, biomass, and their subsets). These are all steps in the right direction, but could IP mechanisms play a more prominent role in accelerating these technologies?

If ‘The whole is greater than the sum of its parts’, why not cooperate on R&D? The financial rewards may not be as large but the sharing of knowledge may make the set targets more quickly achievable. One mechanism of potential benefit is patent pooling to create a commercial vehicle facilitating licensing and cross-licensing of the technologies. This tried and tested mechanism has been at the forefront of the telecommunications sector where 3G technology has been pooled successfully and 3G networks are now standard across the industry. Other examples include the pooling of DVD patents among industry players including Samsung, Hitachi, and Panasonic. Perhaps one reason why patent pools have succeeded is that they create a win-win situation in the process of patenting technology and then marketing it. Even patent owners who lack the means to exploit their patent benefit through the licensing of their patented technology to those able to bring it to market; potential licensees benefit from greater time- and cost-efficient licensing; and all parties in the pool have access to the latest technology which can springboard speedier innovation, in turn conferring benefits on society as a whole.

Patent pooling is not an alien concept to ‘green’ industries. In 2008, IBM co-founded the Eco-Patent Commons, a non-commercial pool, administered by the World Business Council for Sustainable Development. Companies donate relevant patents to the pool, which anyone can access. Each patent donor agrees to take no action against users. Pools on this model might be set up specifically for particular types of renewable energy technology.

On the downside, pools might reduce competition both between the parties and their products, stifling innovation rather than encouraging it. Where there is a global drive to develop clean, sustainable, energy resources, governments could incentivize participating organizations. This might remedy worries of innovation slowdown. Concerns regarding reduced competition could be addressed in each pool's headline terms.

Since renewable energy will be a key market for years to come, traders in this area must be able to exploit their technology while contributing to society through further innovation. To achieve that (and hero status?) the challenge for the IP regime and its users is that both must be innovative".