Academic journal article Santa Clara High Technology Law Journal

Clean Tech Reality Check: Nine International Green Technology Transfer Deals Unhindered by Intellectual Property Rights

Academic journal article Santa Clara High Technology Law Journal

Clean Tech Reality Check: Nine International Green Technology Transfer Deals Unhindered by Intellectual Property Rights

Article excerpt

I. INTRODUCTION

The debate over whether intellectual property ("IP") rights foster innovation and promote implementation of clean technologies or stand as a barrier to their development and deployment is playing out on the international stage. This debate has sharpened recently in the context of the negotiations to produce the next global climate change treaty to replace the Kyoto Protocol, which expires in 2012. When diplomats from over 180 countries convened in Copenhagen, Denmark in December 2009 to negotiate the terms of the new treaty round, it came after a year of high level debate over the role of IP rights in international transfer and deployment of clean technologies. According to the United Nations Secretariat and many developing countries, there are significant barriers to such clean tech transfer, and chief among them is intellectual property. Therefore, both the UN Secretariat and many developing country parties put forth a host of policy proposals to weaken or even eliminate IP rights in clean technologies.

Yet the reality is there have been many recent partnerships, joint ventures and licensing arrangements between clean technology firms in developed countries and their business partners in developing countries despite the presence of significant IP rights. After discussing the debate over IP rights in the climate change treaty talks, including the background, the parties and the policy proposals, this article will note that clean tech transfer is happening irrespective of IP rights. Next, this article will highlight nine significant instances of such clean technology transfers announced in just the approximately one-year period leading up to the Copenhagen talks in December 2009. The present article does not aim to comprehensively address the complex question of whether IP rights help or hinder clean tech transfer, but rather to provide an overview of the debate, the issues, and a brief clean tech reality check.

II. COPENHAGEN AND THE INTERNATIONAL DEBATE OVER IP RIGHTS: HISTORY, PLAYERS AND PROPOSALS

From December 8-18, 2009 international climate change negotiators met in Copenhagen to hammer out the terms of a new round of global climate change treaty to replace the Kyoto Protocol when it expires at the end of 2012. (1) Among the elements of a prospective treaty text was a "Technology Mechanism" to facilitate transfer of climate change mitigation technologies from developed country parties such as the United States, the European Union and Japan to developing country parties that include Brazil, India, China and many of the world's poorest nations. (2) The Technology Mechanism was to comprise one or more policy proposals to weaken or eliminate IP rights in clean technologies, including compulsory licensing as well as more extreme measures such as mandatorily excluding clean technologies from patenting and even revoking existing patents on clean technologies in developing countries. (3) As discussed in more detail herein, the developing country parties, led by Bolivia, Brazil, China, India and the Philippines, offered similar policy prescription in their proposed negotiating texts. (4)

Yet even as the climate change negotiators were debating those proposals and discussing patents as a barrier to transfer of clean technologies, California solar thermal startup eSolar and its Chinese partner Penglai Electric ("Penglai") were close to finalizing the terms of a deal to build at least 2 gigawatts of solar thermal power plants in China. (5) The biggest solar thermal deal ever when announced in January of 2010, it was structured as a master licensing agreement between eSolar and the Chinese electrical power equipment manufacturer. (6) Penglai would be the exclusive licensee in China of eSolar's modular, scalable solar thermal technology, which includes several patents and pending patent applications relating to solar "power tower" architecture and supporting software. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.