Patents can’t solve green tech- alternate approaches are required

Patents are criminally inappropriate when rapid diffusion of technology is a priority. The logic of patents is compelling: research is incentivised by the granting of a monopolistic period during which R&D costs can be recuperated. Guided by this principle, government strategy has so far revolved around establishing fast-track lanes for green IP, setting the stage for a green patent ‘arms race’ between the biggest companies. However, the double-bind of patent is that diffusion of technology in the short term is sacrificed to incentivise innovation in the long term. In the context of climate change, we must consider whether this is a bargain we are willing to accept. Do we want to see what happens when the ‘wicked’ problem of climate change meets the ‘tragedy’ of the Anti-Commons?

Certain game-changing technologies - wind and solar, for example - have already been developed but patenting of the underlying technology has limited their impact. Licensing has been too expensive to make follow-on development and cheap production of the technology commercially viable. High-profile cases have already brought this into stark relief. In 2014, Mitsubishi were blocked from importing wind turbines into Texas because of an infringement of a General Electric patent. More recently, GE themselves were unable to deploy the Halide X turbine in the US because of a Siemens Gamesa patent. There are calls to shorten the period of exclusivity for green patents, but these miss the point: if there can be no justifiable delay to technological diffusion in the present circumstances, how can there be time for patents?

Whilst often trumpeted as solutions, semi-open patent mechanisms are inadequate fixes to an inappropriate IP regime. Yes, compulsory licensing has proven effective when forcing pharmaceutical companies to transfer medicine overseas. However, green technologies are not chemical formulas and licensing may not be sufficient unless companies are also compelled to reveal the trade secrets and technical know-how required to replicate their products. Moreover, although open patent pledges seem ‘breathtakingly progressive’, they often come with ‘strings attached’ that limit their practical impact. Toyota, for example, only pledged patents relating to their fuel-cell drive system on the condition that companies purchase certain Toyota products and have proven quick to litigate to enforce their requirements.

Most importantly, strong patent regimes are not an equitable way to achieve the technical revolution required. Climate change is entangled with complex questions of social justice, historical reckoning and global inequality. Indeed, the UNFCCC is founded upon the concept of ‘common but differentiated’ responsibilities and any legal mechanisms divined to address climate change must be uncompromisingly fair. Low-carbon technologies are already desperately needed in many countries in the Global South, but almost 85% of green patents are held by companies in the US, Japan and Germany alone. It cannot be correct that a handful of companies in the Global North can dominate markets and diffuse technologies at their discretion. Although reluctant, the Global North political elite finally realised that IP rights over COVID vaccines must be significantly diminished to meet the humanitarian needs of people around the world. If we learned the lesson that ’intellectual property and pandemics don’t mix’, why have we been so slow to reject the patenting of climate-critical technology?