Green innovation is necessary to stop climate change---however, patent fences and thickets are used to hinder it.

In the Korean case, the country and economy were inundated with nonozone depleting technologies dumped in the country by a foreign company that filed 40 patents. This practice occurred at the time when Korea, which was refused a license on HFC technology, decided to develop its own local capacity in the area. The filing of multiple patents on the technology was interpreted as an attempt to stifle Korean growth in the technology by increasing the cost of development. The effect of such broad property rights on development has been found to stagnate innovation because of the costly nature of obtaining a licence from the patent holder."8

Technology transfer in the energy sector is largely connected with the effective licensing of the technology. In light of concerns that expired patents could still not be utilized in the renewable energy sector due to the inability to secure licenses for technology, a joint United Nation Energy Programme, European Patent Office and International Centre for Trade and Sustainable Development's study was commissioned to examine licensing practices in the clean energy sector. The global licensing survey concluded that intellectual property protection in the host country was an important factor in entering a license agreement. The respondents also cited other local infrastructural factors as also affecting the decision to enter into a licensing agreement. 121

Evergreening has also taken the form of patenting many small steps in an invention, or separately patenting compounds and technological processes that make it difficult for small inventors to file a patent without paying licensing fees. This practice increases the cost of filing a patent to include fees payable to the owners that already have a patent on the process or product. For example, multiple patents can be obtained as a form of a "picket fence," which involves obtaining a series of patents around a single product or drug that makes it difficult to produce the product without paying royalties for the various patents. The result is that the need to obtain multiple patents may block the innovator from using the patent.

The practice of "picket fencing" also occurs when firms take out patents that may not be used immediately, but can guarantee a strategic edge in the future by forcing the user to obtain multiple licenses, thereby increasing the cost of production. The practice of using "patent thickets" is said to thwart innovation by creating multiple patents within a patent, thereby increasing the cost of copying the invention, requiring that numerous patent rights are acquired to reproduce one invention. This means that a person wishing to utilize the patent may have to pay multiple licensing fees for the various patents required to reproduce the product.

These practices increase the cost of invention, which may pose a hindrance to cost-sensitive developing nations. Figure 1, below, captures from different perspectives the practice of evergreening, which forces users to obtain licenses:

<<<FIGURE OMITTED>>>

The World Intellectual Property Organization ("WIPO") has summarized the costliness of patent thickets affecting intellectual property rights as follows:

.patent thickets - may forego research activity... whereby patent rights are distributed over a fragmented base of IP holders, and those who wish to introduce products using such technologies face the high cost of negotiating with multiple parties. If each technology is essential, a negotiation failure with any of the IP holders is equivalent to a failure with all. New products are blocked, all IP holders lose an opportunity to commercialize and society misses out on new technology. Even in the case where an enterprising entrepreneur could strike a deal with each separate IP right holder, he or she is likely to overpay if the number of IP holders that could claim infringement is sufficiently large.

Thus, patent thickets represent an indirect form of evergreening by making innovation financially impractical because of the requirement to obtain multiple licenses from multiple rights holders. 23 In addition, some scholars have claimed that weak patent laws that permit "multiple and overlapping" patents also contribute to the patent thicket problem. Maskus and Okediji argue the following:

[P]atent thickets substantially heighten transaction costs associated with licensing and extract additional rents from would-be licensees in the event that one patent owner chooses to hold out, Further, fragmentation of patent ownership increases the costs of the patent system from public users, Another problem is that patent documents may not require sufficient disclosure to be useful as sources of cuttingedge technical information for less sophisticated users, including firms in DCs and LDCs, 12

Thus, according to Maskus and Okediji, the requirement that a user obtain multiple licenses may act as an impediment to innovation. Moreover, if one patent holder refuses to grant a license this could prevent use of the patent. In this regard, the financial burdens imposed by patent thickets represent a form of evergreening.

The advantage of patent thickets to the patent holder does not end with the expiry of the patent. In fact, this practice may be extended through trade secrets. Many PV panels are constructed and assembled through trade secrets and there is no guarantee that technical know-how will be transferred to the public once the patent has expired. Technical know-how is an essential ingredient in transferring green technology. The costs associated with such transfers are expected to be borne by the recipient of the technology. Trade secret coverage can broadly apply to a number of business practices and strategies, including technical, financial, or even strategic information that are proprietary and are of a secretive nature, including formulae, processes,125 patterns, compilations, programs, devices, methods, or techniques. 26 It is well accepted that trade secret law has also been extended to protect "know-how," which is defined as follows:

[K]now-how is defined as a body of unpatented technology useful in making a product to be sold commercially, It includes a complete body of manufacturing information needed by an industrial organization to satisfy design, develop, fabricate or produce goods 127

The issue of development and the transfer of technology in green energy projects is largely concerned with the "know-how" aspect of trade secrets, and as such, the analysis herein will largely focus on trade secret "know how".

Trade secrets can be used to protect information that enhances expired patents. 2 ' While contracts involving technology transfer usually require a license for patents, the trade secret aspect may be protected by having the company import its employees to the domestic project destination. In that vein, the company can maintain its trade secrets by transporting their employees to work on foreign projects, rather than reveal the proprietary information or "know-how." In energy projects, patent licenses alone may not be sufficient to commence the project and the "know-how" which is protected by trade secrets may be of more value since, in many cases, the patents on solar panels have expired and are readily accessible in the public domain. 2 9

The fact that many climate change technologies are subject to multiple patents and processes makes the cost of accessing them quite prohibitive. 30 Unlike other forms of patenting products such as those in the pharmaceutical sector, it has been argued that no singular technology "will be necessary or sufficient on its own to solve climate change."'13 ' It is indisputable that once a patent expires(usually after the 20-year exclusivity period), the utility of the patent must be opened to the public for social benefit. However, where the patent is improved on by an enhancement through trade secrets, this may indirectly extend the life of the patent in perpetuity. Consequently, trade secrets represent a more onerous form of intellectual property than patents as the latter has time limits on the monopoly period. The consequences of an intellectual property mechanism that has no time limits can have a severe impact on technology transfer which will directly affect how the developing world addresses costly issues like climate change abatement.

The concerns raised by developing and least-developed Member States in the TRIPS Council meetings on technology transfer and climate change abatement highlight the need to set tangible targets for technology transfer especially in the area of green technology. In addition, cases like the Korean and Indian licensing cases demonstrate the power of trade secrets and impact that withholding licenses can have on development. It further highlights the fact that there are a number of commercial strategies that can be adopted beyond patents that can extend the life cycle of product and processes. The tolerance for these strategies may wane given the impact that these practices may have on the ability of nations to meet climate change objectives. New mechanisms need to be developed that will address some of the problems posed by the application of trade secrets and patent thickets to green technology transfer. With the lag in technology being a reality in many developing countries, the developing world's ability to technologically catch-up and compete in the world of inventions and innovations is severely hindered. Arguably, the practice of evergreening exacerbates already existing problems by further thwarting innovation, with the most profound effect being on the developing world. This is because the patent rules are so technical, that large companies may hide behind the technical complexities of energy production and products. Innovation then becomes directly associated with the level of technological advancement and the ability of companies in the developing world to imitate existing inventions. Where such inventions are only accessible through costly patents or licensing fees, this poses a financial burden for developing countries that can only be remedied through some aspect of foreign investments. Without external investments, innovation remains curtailed and reduced to "technical evergreening."