Patents devastate the tech transfer necessary to meet climate change targets.

Again, the design of IPR regimes – in developed and developing countries alike – will be an important factor in the success or failure of countries in meeting these objectives.

There are several key intersection points between IPR, climate change and development that policymakers should take into account.

The first is the extent to which IPR facilitates or impedes the development and global diffusion of technologies that might reduce greenhouse gas emission or in other ways mitigate climate change (for short, we call such technologies “climate change technologies.” Secondly, as highlighted in the section on agriculture above, poorly designed IPR may exacerbate the impacts of climate change, for example by reducing biodiversity and thereby limiting agricultural resilience and adaptability. To quote the then special counsel for the Australian Government Solicitor, “[w]hen one thinks about what is at stake, there is no more important role for today’s intellectual property systems than to generate solutions for a problem that could inflict an awful calamity on the human race. One could get passionate about this topic” (Rimmer, 2011).

However, the relationship between IPR and climate policy has received only relatively recent attention. Reichman et al. (2014) suggest that this may be because of the mismatch between incentive-based justifications for IPR, which presume appropriate market signals on the demand side, and the challenge of green innovation, which has been characterised by a lack of appropriate pricing for high-emitting technologies and therefore an absence of an appropriate demand signal. They suggest that the relationship between IPR and climate change will become increasingly relevant as interventions such as carbon taxes and cap and trade systems address the demand side problem.

As noted above, one major point of intersection relates to the role of IPR in the transfer of climate technologies to developing countries. Technology transfer has been a key pillar of the United Nations Framework Convention on Climate Change (UNFCCC) since its inception. Article 4.5 of the UNFCCC requires developed countries to “take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties”. In 2007, the Bali Action Plan also identified technology transfer as one of four key priority areas. Subsequent negotiations resulted in a Technology Mechanism to facilitate global transfer of technologies for climate change adaptation and mitigation. Consistent with this, the original Rio agreement provided for compulsory licenses for climate change technologies.62 In recent years, however, developing countries have argued that these efforts may be impeded by poorly designed IPR regimes, particularly in relation to patents.

Beyond the direct and obvious consequence - the level of emissions is higher than it otherwise would have been - there is an indirect effect: the developing countries are less likely to agree to tough obligations in emission reductions, since meeting those obligations may entail their making large transfers to the developed countries which own the IPR necessary to meet those obligations. Of course, without an agreement, the entire world is put at risk.