Green is the New Black: Exploring Green Technology Patents as Corporate Initiatives for Environmental Innovation

For a Greener World

Green technology aims to mitigate environmental impact through eco-friendly products, utilizing green energy for a sustainable future. The synergy of IPRs and green tech fosters innovation, supported by the TRIPS agreement recognizing IPRs’ role in growth and sustainability (Article 7). IPR enforcement promotes high-tech advancement, technology transfer, and socioeconomic welfare.

Green intellectual property (green IPR) covers innovations benefiting the environment, addressing climate crises. Key to this is the concept of ‘green patents,’ granting exclusive rights to environmentally friendly technologies like waste management, wind, solar, and geothermal energy. These patents attract investments, stimulate economic development, and encourage eco-innovations.

Global initiatives like WIPO Green provide a network for green tech solutions, fostering collaboration among companies, SMEs, investors, and government institutions, especially in developing countries. Additionally, OECD’s efforts support green growth indicators and analyze patents in ecological technologies.

In the Indian context, the Environment Protection Act, 1986 and the Patents Act, 1970, form the legal framework for environmental protection, promoting technical knowledge, innovations, and technology transfer. Developing a strategic approach is essential to benefit end-users and promote socioeconomic well-being.

Synergies of Green Technology and Intellectual Property Rights

The term ‘green intellectual property’ (Green IPR) has emerged to support environmental protection, encompassing rights for eco-friendly innovations. Aligned with the TRIPS agreement, Green IPR promotes technological creation and dissemination for the benefit of both end-users and creators, contributing to socio-economic progress.

Patents grant exclusive authority to inventors, serving as a vital tool for investment and business expansion. In the context of green technology, strong patent portfolios, filing strategies, and market positions become crucial for attracting investment. Green patents are instrumental in incentivizing and encouraging investments in technologies focused on combating climate change and promoting sustainability.

These patents play a key role in protecting globally significant green technologies, fostering environmental growth and development. Recognized as green tech patents, they provide a platform for sustainable business ideas and incentivize companies to address environmental impacts. While a relatively new concept, countries acknowledge the vital role of green patents in promoting sustainability.

Green patents, integral to Green IPR, determine the rights granted to inventors in the field of green technology, offering an essential alternative for economic and environmental incentives. As technological solutions are crucial for addressing environmental issues, green patents emerge as an initiative within the IPR regime. They operate through databases like IPC Green Inventory and WIPO Green, facilitating connections between countries, inventors, and investors in green technologies.

Global Initiatives Advancing the Patenting of Green Technology

WIPO Green, a global platform by WIPO, serves as an online marketplace for promoting green technology exchange, connecting key players in innovation and diffusion. The USPTO initiated the green pilot program in 2009, expediting green patent applications ahead of general ones. WIPO GREEN Acceleration Projects have fostered innovation in areas such as renewable energy, waste management, and sustainable agriculture to address global environmental challenges in countries both developed and developing, coupled with release of the ‘Green Technology Book’ for guidance and IP Management Clinic for roadmapping. One interesting aspect is WIPO Green’s recognition of the Indian Bhungroo technology, developed by Biplab Ketan Paul and Trupti Jain, in the Green Technology Book. This technology revolutionizes agriculture by storing excess rainwater underground, combating floods and droughts, empowering women farmers, and fostering sustainable development in rural communities.

Similarly, the UKIPO introduced the Green Channel program in 2009, accelerating patent processing for environmentally beneficial inventions. Japan recently joined WIPO Green, collaborating to boost green technology utilization. The JPO, partnering with WIPO, introduced the Green Transformation Technologies Inventory (GXTI) to categorize and search for patents related to green transformation efforts. Aligned with TCFD recommendations, GXTI aims to showcase companies’ contributions to addressing climate change and transitioning from fossil fuels to clean energy.

Enforcing Compulsory Licensing for Green Tech

Compulsory licensing is a legal provision granting someone the right to use a patented invention, paying a royalty to the inventor without their permission. This concept, fundamental in IPR law, is statutorily created to provide third-party access to patented inventions. The TRIPS agreement, along with the Indian Patent regime, discusses the basic features of compulsory licensing.

TRIPS permits compulsory licensing under specific conditions, such as in cases of national emergency, extraordinary urgency, or public non-commercial purposes (Article 31). However, the agreement does not explicitly define a national emergency. Some argue that environmental degradation, including issues like resource depletion and climate change, could be considered a national emergency.

Compulsory licensing of green technologies may be justified under the umbrella of climate change and environmental degradation. While TRIPS is silent on what constitutes a national emergency, it is the responsibility of member states to demonstrate the urgency or emergency. Article 27 of TRIPS allows member states to exclude inventions from patentability if their commercial exploitation is necessary to protect public order, morality, or to avoid severe environmental prejudice.

Compulsory licensing has been highlighted in green technology litigations, emphasizing its importance in addressing public interest and ensuring fair use. Examples include cases like Paice LLC v. Toyota Motor Corp and eBay v. Merc Exchange LLC, which underscore the relevance of public interest in patent-related decisions.

Additionally, the General Electric Co. v. Mitsubishi Heavy Industries exemplifies a litigation case in the clean technology sector, showcasing disputes over patents related to green technologies.

Compulsory licensing is considered a crucial tool in addressing the diffusion of green technology, particularly in low-income countries where the high prices of green technologies pose challenges. However, not all favor compulsory licensing, citing concerns about potential infringement on patentees’ rights and hindering a country’s ability to innovate independently. The determination of whether a recipient country has adequate infrastructure for accommodating the technology is a critical factor in evaluating the appropriateness of compulsory licensing for green technology transfer.

A Green Trail to Protection

Green technology is a global priority for achieving ambitious environmental goals, including zero carbon emissions. The surge in green tech innovation is reflected in a substantial increase in patents, with India granting every second patent in the field between 2016-2021. Over 61,000 green tech patents were filed, with a focus on waste management (63%), alternative energy production (26%), and other areas like energy conservation, transportation, nuclear power, agriculture, and forestry.

Source: Lexology

Despite India’s significant contributions, it lags behind other major countries in promoting green technology patenting through initiatives such as incentives, expedited examination, and reduced renewal fees. Policymakers, thinkers, and corporate bodies in India need to introduce measures to address climate change challenges.

Globally, harmonizing intellectual property regulations poses challenges, but promising initiatives for green patenting are emerging. WIPO plays a crucial role in furthering global collaboration and simplifying processes for companies investing in green technology.

With adequate support, the global green tech industry can drive environmental innovations, contributing to sustainable development and the planet’s preservation.

About Tejaswini Kaushal 17 Articles
Ms. Tejaswini Kaushal is a 3rd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She is keenly interested in Intellectual Property Law, Technology Law, and Corporate Law.

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