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Published online by Cambridge University Press: 20 January 2017
With the close of another round of United Nations Framework Convention on Climate Change (UNFCCC) treaty talks, this one held in Cancun from November 29–December 10, it is important to look at how green patents fared in the negotiations and the final agreement.
But first, some background is necessary to set the stage for Cancun.
Last year, when I became aware during the run up to the Copenhagen meeting that intellectual property IP) rights were being debated, the first question that popped into my mind was: why are IP rights even on the agenda in the climate change treaty discussions?
To me, IP seemed tangential at best to the problems of shaping policies to mitigate climate change, taking a back seat to a maximum temperature rise target, greenhouse gas emissions targets, carbon taxes, cap and trade, and other policy tools directed relating to climate change.
1 See United Nations Framework Convention on Climate Change Treaty art. 4.5, May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107, available on the Internet at <http://unfccc.int/resource/docs/convkp/conveng.pdf> (last accessed on 3 January 2011) [hereinafter, UNFCCC Treaty].
2 See UNFCCC, Technology Needs Assessments, available on the Internet at <http://unfccc.int/ttclear/jsp/TNA.jsp> (last accessed on 13 November 2010).
3 See UNFCCC, Bali Action Plan, (1)(d)(i), Decision -/CP.13 (December 2007), available on the Internet at <http://unfccc.int/files/meetings/cop_13/application/pdf/cp_bali_action.pdf> (last accessed on 30 December 2010).
4 See, e.g., UNFCCC, Report of the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, at paras. 48, 188, available on the Internet at <http://unfccc.int/resource/docs/2009/awglca6/eng/08.pdf> (May 19, 2009) (last accessed 30 December 2010) (“Specific measures ﹛shall﹜ ﹛should﹜ be established to remove barriers to development and transfer of technologies from developed to developing country Parties arising from the intellectual property rights (IPR) protection …”).
5 See id.; see also Sangeeta Shashikant, Developing Countries Call for No Patents on Climate-friendly Technologies, TWN Bonn News Update No. 15, June 11, 2009, available on the Internet at <http://www.twnside.org.sg/title2/climate/bonn.news.3.htm> (last accessed 13 November 2010).
6 Id.
7 Id.
8 Bonadio, Enrico, “Climate Change and Intellectual Property”, 1(1) European Journal of Risk Regulation (2010), pp. 72–76 CrossRefGoogle Scholar (“Compulsory licensing schemes, on the other hand, are less controversial and could be the right answer to facilitating the transfer of ESTs, especially climate technologies. After all, such schemes have already been experienced in certain countries, including the United States.”).
9 See United Nations Framework Convention on Climate Change Copenhagen Accord, para. 11, Dec. 18, 2009, available on the Internet at <http://unfccc.int/resource/docs/2009/cop15/eng/l07.pdf> (last accessed on 30 December 2010).
10 Int’l Centre for Trade and Sustainable Development, Climate Change, Technology Transfer, and Intellectual Property Rights, iv (ICTSD Background Paper, Trade and Climate Change Seminar, June 18–20, 2008).
11 Copenhagen Economics A/S & The IPR Company ApS, Are IPR a Barrier to the Transfer of Climate Change Technology? (2009), available on the Internet at <http://trade.ec.europa.eu/doclib/docs/2009/february/tradoc_142371.pdf>(last accessed on 13 November 2010)
12 Id. at p. 5.
13 Id. at p. 6.
14 Id.
15 Id. at p. 6.
16 See Pugatch, Meir Perez, “Mitigating Climate Change through the Promotion of Technology Transfer and the Use of Environmentally Sound Technologies (ESTs): The Role of Intellectual Property Rights”, 1(4) European Journal of Risk Regulation (2010), pp. 408–414)CrossRefGoogle Scholar.
17 Id.
18 See Press Release, eSolar, eSolar Partners with Penglai on Landmark Solar Thermal Agreement for China (Jan. 8, 2010), available on the Internet <http://www.esolar.com/news/press/2010_01_08> (last accessed on 13 November 2010).
19 See id.
20 See id.
21 See Press Release, eSolar, eSolar Signs Exclusive License with ACME to Construct 1 Gigawatt of Solar Power Plants in India (Mar. 3, 2009), available on the Internet at <http://www.esolar.com/news/press/2009_03_03> (last accessed on 13 November 2010).
22 See id.
23 See id.
24 A search of the World Intellectual Property Office patent database indicates that several of eSolar's international patent applications are still eligible for protection in China and India (available on the Internet at <http://www.wipo.int/pctdb/en/> (last accessed on 6 January 2011)). Enter “eSolar” in the Applicant Name field, submit the query, and eight records are returned; of the eight records, at least two of the international applications have priority dates such that they may still enter national phase in, inter alia, India and China. See, e.g., International Application No. PCT/US2009/053046 (having an international priority date of August 6, 2008, which makes its national phase deadline February 6, 2011).
25 Press Release, eSolar, supra notes 18 and 21.
26 Press Release, eSolar, supra notes 18 and 21.
27 Id.
28 See Press Release, eSolar, supra note 18 (“eSolar, a global provider of reliable and cost-effective concentrating solar power (CSP) plants, and Penglai Electric, a privately-owned Chinese electrical power equipment manufacturer, today announced a master licensing agreement to build at least 2 gigawatts (GW) of solar thermal power plants in China over the next 10 years”).
29 See id. (“GE and Shenhua Group Corporation today announced that they have agreed to a framework for an industrial coal gasification joint venture which would combine GE's expertise in gasification and cleaner power generation technologies with Shenhua’s expertise in building and operating coal gasification and coal-fired power generation facilities, to advance “cleaner coal” technology solutions in China”).
30 See id. (“The memorandum of understanding … would result in a joint venture company, in which GE and Shenhua would execute a strategic vision for expanding to improve cost and performance of commercial scale gasification and integrated gasification combined cycle (IGCC) solutions”).
31 “Intergovernmental Panel on Climate Change, Fourth Assessment Report, Climate Change 2007: Synthesis Report, Summary for Policymakers”, Working Group III § 4.3 tbl.4.2 (2007), available on the Internet at <http://www.ipcc.ch/publications_and_data/ar4/wg3/en/ch4-ens4-3.html> (last accessed on 13 November 2010).
32 See Press Release, “Landis+Gyr, Brazil Chooses Landis+Gyr as Country's First Approved Smart Meter Systems Provider” (July 16, 2009), available on the Internet at <http://www.landisgyr.com/en/pub/media/press_releases.cfm?news_ID=3459> (last accessed on 13 November 2010).
33 See id. (“… just this April, Landis+Gyr received two prestigious awards for customer service excellence from forward-looking Brazilian utilities, Light S.A. and Ampla, part of Grupo Endesa”).
34 Id.
35 See id. (“The Landis+Gyr facility of 450 employees located in Curitiba prides itself on its high level of innovation and is one of the most modern plants in the Landis+Gyr network”); see also Smart Grid Update: Feds Seek Meter Security in Grants, Brazil Picks Landis+Gyr, Greentech Media, July 29, 2009, available on the Internet at <http://www.greentechmedia.com/articles/read/smart-grid-update-security-concerns-for-federal-grants-landisgyrin-brazil-/> (last accessed on 13 November 2010) (“The Swiss smart meter maker will build the meters at its own Brazil facility.”).
36 Brazil Patent No. PI9709262-2 A2 (filed May 23, 1997).
37 See generally supra note 35.
38 See id. (“Following the system's certification by INMETRO (the National Institute of Metrology, Standardization and Industrial Quality), Landis+Gyr plans to install 200,000 new endpoints by the end of this year”).
39 See Amyris Brasil, available on the Internet at <http://www.amyris.com/index.php?option=com_content&task=view&id=69&Itemid=257> (last accessed on 13 Novmeber 2010).
40 See id. (“Amyris Brasil intends to acquire ethanol mills in Brazil and convert these in order to secure first production in 2011”).
41 See Press Release, Amyris, “Amyris Signs Letters of Intent Agreements with Bunge, Cosan and Guarani” (Dec. 8, 2009), available on the Internet at <http://www.amyrisbiotech.com/en/newsroom/81-amyris-signs-letters-of-intent-agreements>(last accessed on 13 November 2010).
42 See Press Release, Amyris, “Amyris and São Martinho Group Enter Into Agreement” (Dec. 3, 2009), available on the Internet at <http://www.amyrisbiotech.com/pt/newsroom/82-amyris-and-sao-martinho-group> (last accessed on 13 November 2010) (“Amyris Biotechnologies, Inc., announced that it intends to acquire a 40% stake in the Boa Vista mill, an ethanol-producing mill owned and operated by the São Martinho Group, one of the largest and most efficient sugar and ethanol producers in Brazil”).
43 See id. (“The parties will work together to convert this mill to produce Amyris renewable products with first production targeted for the 2011–2012 harvest season.”).
44 See id. (“In addition, the agreement will allow the Iracema mill, also controlled by the São Martinho Group, to adopt this technology one to two years following the Boa Vista commercialization”).
45 See supra note 41 (“Amyris Brasil, a wholly owned subsidiary of Amyris Biotechnologies, Inc. today announced that it has entered into letter of intent agreements with three sugar and ethanol producers in Brazil, Bunge Limited (NYSE: BG), Cosan (SA: CSAN3) and Açúcar Guarani (SA: ACGU3), with the purpose of partnering for the production of high value renewable specialty chemicals and fuels”).
46 See id. (“Amyris intends to build production through ‘capital-light’ agreements in which Amyris provides technology and plant design and mill owners contribute capital to convert their mills to produce Amyris renewable products”).
47 See id. (“The letter of intent agreements with Bunge, Cosan and Guarani should cover Amyris's planned production through 2013–2014”).
48 See id. (“Under the agreement with Guarani … the parties will investigate the feasibility of developing an optimal economical model using Amyris technology to produce cane-derived diesel fuel from molasses rather than from traditional sugar cane juice”).
49 See id.
50 See World Intellectual Property Office patent database, available on the Internet at <http://www.wipo.int/pctdb/en/> (last accessed on 6 January 2011), enter “Amyris” in the Applicant Name field, submit the query, and twenty-nine records are returned.
51 A search of the World Intellectual Property Office patent database indicates that several of Amyris's international patent applications are still eligible for protection in Brazil. See id. Of the twenty-nine records, ten of the international applications have priority dates such that they may still enter national phase in, inter alia, Brazil. See, e.g., International Application No. PCT/US2009/004959 (having an international priority date of September 4, 2008, which makes its national phase deadline March 4, 2011).
52 See First Solar Technology web page, available on the Internet at <http://www.firstsolar.com/en/technology.php> (last accessed on 15 November 2010).
53 See id. (“First Solar manufactures the modules on high throughput, automated lines from semiconductor deposition to final assembly and test – all in one continuous process. The whole flow, from a piece of glass to a completed solar module, takes less than 2.5 hours.”).
54 See id. (“First Solar PV modules are the first thin film PV modules to reach 1GW of modules in installations”).
55 See the relevant WIPO Internet page, available on the Internet at <http://www.wipo.int/pctdb/en/> (last accessed on 6 January 2011), enter “First Solar” in the Applicant Name field, submit the query, and fifty-two records are returned; of those records, twenty-three of the international applications have priority dates such that they still may enter national phase in, inter alia, China as of the date of this writing. See, e.g., International Application No. PCT/US2009/056077 (having an earliest international priority date of September 5, 2008, which makes its national phase deadline March 5, 2011).
56 See News Release, First Solar, “First Solar Hosts Chinese National Leadership Delegation Seeking Sustainable Energy Solutions” (Sept. 7, 2009), available on the Internet at <http://investor.firstsolar.com/phoenix.zhtml?c=201491&p=irol-newsArticle&ID=1328247&highlight=> (last accessed on 15 November 2010).
57 See News Release, First Solar, First Solar to Team With Ordos City on Major Solar Power Plant in China Desert (Sept. 8, 2009), available on the Internet at <http://investor.firstsolar.com/phoenix.zhtml?c=201491&p=irol-newsArticle&ID=1328913&highlight=> (last accessed on 13 Novemeber 2010) (“First Solar today announced a memorandum of understanding (MOU) with the Chinese government to build a 2 gigawatt solar power plant in Ordos City, Inner Mongolia, China.”).
58 See id.
59 Id.
60 See Ucilia Wang, First Solar's Gift to China: How to Build a Solar Farm, Greentech Media, Sept. 10, 2009, available on the Internet at <http://www.greentechmedia.com/articles/read/first-solars-gift-to-china-how-to-build-a-solar-farm/> (last accessed on 13 November 2010) (“The company's CEO, Michael Ahearn, said in an interview that he will be dispatching a team to China to work with one or a couple of Chinese construction companies that will effectively teach the Chinese companies how to go big with solar.”).
61 See id.
62 See Catherine Saez, UN Climate Change Talks Start with Little Faith from Observers, Intellectual Property Watch, Nov. 29, 2010, available on the Internet at <http://www.ip-watch.org/weblog/2010/11/29/un-climate-change-talks-start-with-little-faith-from-observers/> (last accessed on 19 January 2011).
63 See United Nations Framework Convention on Climate Change, Ad Hoc Working Group on Long-term Cooperative Action under the Convention Negotiating Text, Tianjin, 4–9 Oct. 2010, available on the Internet at <http://unfccc.int/resource/docs/2010/awglca12/eng/14.pdf> (last accessed on 15 November 2010).
64 See id.
65 See United Nations Framework Convention on Climate Change, Draft decision -/CP.16, § IV.B (Advance unedited version), available on the Internet at <http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf> (last accessed on 15 November 2010).
