Sink or swim: Eco-patent commons and the transfer of environmentally sustainable technologies

1 May 2008

Agenda 21 and multilateral environmental agreements, including the UN Framework Convention on Climate Change (UNFCCC), emphasise the need for transfer of Environmentally Sustainable Technologies (ESTS). Yet, progress on this front remains unsatisfactory. The importance of the private sector in the transfer of technology is increasingly coming to fore. An initiative to share environmental patents is one example of how private sector entities are seeking to contribute to the wider dissemination of environmental technologies.

In the case of climate change, the need is two-fold – first, there is a need to develop technologies to mitigate climate change, and second, their effective transfer and deployment must be ensured. Although the UNFCCC process has produced some initiatives on technology transfer, the only significant progress do date entails the development of technology assessments and the creation of a clearing house mechanism. The sluggish pace of progress does not equate a total absence of technology transfer or development of technologies that can play an important role in mitigating climate change, however. In fact, a great deal of development and transfer has been facilitated through bilateral means and from the private sector to the private as well as public sector in developing countries. The importance of the private sector in the development, transfer and deployment of ESTS is now well recognised.

The Eco-Patent Commons – a new initiative

In response, the World Business Council for Sustainable Development (WBCSD) initiated the Eco-Patent Commons. This project enables open access to selected patents and permits for the creation of new ESTS products.2 The Eco- Patent Commons is similar to a scheme in Open Source Software known as Patent Commons.3 Patent Commons is a collaborative effort by companies who together created a database of patents for use by the Open Source Community. Although ownership rights of the patents are not waived, developers are free to access and use patents in the pool for developing Open Source Software. Eco- Patent Commons operate in a similar way. Without waiving rights of ownership, the patent holder ensures that as long as their patent is used for the specified purposes — that is, the development of technologies or innovations related to environmental protection — there will be no suits for infringement. Even the commercial use of these patents will be permitted in some instances.

The structure of Eco-Patent Commons is uncomplicated: companies join by placing at least one patent into the commons database, which they continue to maintain, paying fees on the patent as necessary. Eco-Patent Commons is non-profit and voluntary.

While Eco-Patent Commons and Patent Commons are comparable, there are important differences between the two. Foremost, the Eco-Patent Commons focuses on advancing ESTS and developing tools for environmental protection. Also, with Patent Commons there are four types of commitments: commitments identifying specific patents; commitments that do not identify specific patents; commitments covering open source licensed software; and commitments covering specific standards or technology. Under Eco-Patent Commons the commitment is a simple one.

Current eco-patents

To date, there are thirty-one patents available under Eco-Patent Commons. These have been assigned by IBM — which has contributed the maximum — Sony, Nokia and Pitney Bowes. The patent assigned by Nokia — an invention called “Systems and methods for recycling of cell phones at the end of life” — is a good example of an Eco-Patent. This patent makes it possible to recycle certain components of mobile phones into other useful devices, thereby preventing a generation of e-waste and promoting the re-use of materials. However, unless the patent is applied in many countries it is difficult to assess its total environmental impact.

Also, while the patents available under Eco-Patent Commons represent a starting point, they have a very limited application in the further development of technologies in key sectors. Open Source software has had great success and the involvement of companies like IBM that support Patent Commons has furthered its cause. But in case of Eco-Patent Commons the absence of an “IBM” in the energy, environment or transport sector is a major drawback. While IBM supports Eco-Patent Commons, it is not an influential player in the energy or transportation sectors — key industries for advancing ESTS. Even if IBM increases its patents to Eco-Patent Commons, that may serve a limited purpose only. Until companies from the relevant key industries join the database—as they have with Open Source Software—Eco-Patent Commons cannot make a sizeable contribution towards the advancement of ESTS.

There are additional difficulties Eco-Patent Commons must overcome. Commonly, a technological invention is covered by many patents not necessarily held by a single entity. Technology is shared through licensing agreements or patent pools as is true of Patent Commons. Open Source Software, for instance, is mostly a collective endeavor where companies come together to create, test and make available the software. In the case of ESTS there is no need for such pools or for the availability of more technologies under a Commons — the objective here is to transfer the technology. And under Eco-Patent Commons the linkage between the inventions assigned is not clear. Mere availability of one or two patents in a technology will not facilitate the transfer of ESTS. The commercial value or significance of these patents first has to be assessed. But commercialisation involves training, learning to adopt and make efficient use of the technology. Therefore, while the availability of patents is necessary, it is not sufficient: access alone will not result in meaningful technology transfers or the optimum use of patents. There is thus a need to enable access to patents, but as part of a broader strategy of transfer of ESTS.

Need for further improvement

Although the aims of the Eco-Patent Commons are laudable, it needs to go a long distance before it meets its ambitious objectives. The number of participants that assign the patents must increase, as should the diversity of sectors. The patents assigned must meet a variety of needs in energy and resources consumption. The patents should also be accessible as a package. For example, a package of patents on technologies that are useful in energy conservation should be offered, as opposed to single entity inventions. The WBCSD should encourage the formation of patent pools that cover specific technologies and that are available for free use and for licensing. Transfer of these technologies should be facilitated by the WBCSD as well.

Given that the Eco-Patent Commons is only a few months old, it is too early to assess its impact. Information on the number of users, or the products and innovations developed using these patents is not yet available, which adds to the difficulty of measuring its effectiveness. While its objective are commendable and the initiative is worth expanding, the question of whether it will facilitate the development of technology and its transfer remains unknown. If WBCSD can involve more players and make this a truly global initiative that offers much more than patents for free use, it will play a meaningful role in the transfer of ESTS and in furthering innovations that will help achieve sustainable development objectives.

Krishna Ravi Srinivas4 is an Associate Fellow with RIS, New Delhi, does research in intellectual property rights and trade and environment issues. Email: krsriniv@gmail.com

Endnotes

1 See generally D.Kline et.al Clean energy technology transfer: A review of programs under the UNFCCC Mitigation and Adaptation Strategies for Global Change Volume 9, Number 1 / March, 2004

2 For details see www.wbcsd.org/web/epc/

3 http://www.patentcommons.org/

4 This article was written in the personal capacity of the author

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