"The patent system and the climate change challenge"

President Battistelli's keynote speech on clean energy technologies and IP at the DPMA in Munich on 22 July 2010  

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President of the German Patent and Trade Mark Office,
Ladies and Gentlemen,

I feel very honoured to be here today to address this distinguished audience. I would particularly like to thank Mrs Rudloff-Schäffer for giving me the opportunity to share some thoughts on a topic of global importance in one of my first public speeches as President of the EPO. At the same time, I believe this is an excellent occasion for the inauguration of your new conference centre, on which I wish to congratulate the DPMA.

"Green technologies", the focus of this symposium, are rapidly becoming the pivotal issue in humanity's efforts to address climate change and the dramatic effects it could have for life on this planet. It is essential that, as representatives of the world of IP, we examine the role that intellectual property rights, and especially patents, can play in this context.

What makes the climate challenge so singular is that it is predicted to affect almost every aspect of human life. Virtually nobody and nothing can expect to escape the challenge, and there is no space for bystanders. The pressure on the world to act is increasing. It is already putting social sub-systems to the test, even ones that have enjoyed great success over a long period, such as the IP system. The issue is so big, and is likely to have repercussions for so long, that in the end only long-term strategies will stand a chance of succeeding. New technologies can provide relief only if the mindsets of people change as well. If my hypothesis is correct, I would dare to say that for any sub-system to survive, it must endorse and promote two vital dynamics: (i) co-operation and (ii) comprehensive thinking on a global scale.

Patents play an important role for climate change technologies, just as they do in all other technical fields - they provide incentives, first to create new products and processes and then to distribute them as widely as possible. This "virtuous cycle", however, has come under attack during controversial debates at the UN's climate change conference. This situation is very complex, since the issue of climate change is inevitably discussed against the backdrop of the global knowledge economy. As rapid development of new technologies becomes increasingly vital for our planet, the way codified knowledge is generated, appropriated, controlled and diffused becomes an ever greater source of concern and debate. There are many lines of conflict: how to reconcile national interests with global interests, competitiveness with co-operation, market share mentality with full participation of all stakeholders, and whether or not to allow negotiations among governments to take  precedence over privately controlled interests, such as patented technologies, to name but a few.

For the patent system it may be necessary to revisit the basic patent social contract, its "raison d'être", which is contained in its very name. The word "patent" comes from the Latin verb patēre, which means to be open or accessible. The opposite of the adjective patent is latent, which comes from latēre meaning to lie hidden or escape notice. Ironically, many critics perceive this to be the consequence of the present patent system.

Moreover, there is a disturbing lack of governance controlling the interactions between the knowledge economy and the climate change sector. Given the gigantic inflow of private capital needed to develop green technologies over the coming decades, the patent system should be one of the supporting pillars of such governance. But some scholars and analysts are asking whether the rules of the current patent system are fit for the climate change era. Some suggest taking a fresh look at the "public order" provisions in patent law, such as Article 53(a) of the European Patent Convention, with a view to securing environmental compliance. Others want "licensing of rights" to be introduced for key technology platforms. A third suggestion is to establish a treaty allowing free access to basic sciences and technologies.

Meanwhile, in the negotiations at the UN climate change conference, much more radical proposals have been tabled. Although patents and other IP rights are not mentioned in the Copenhagen Accord, experts attending the UN conference maintain that patents have become the most polarised and controversial item on the agenda. In fact this is the only field where no progress has been achieved. On the contrary, as the battle lines are drawn up, there seem to be no zones of compromise between the growing number of black or white positions being taken.

The EPO first identified potential risks to the IP system posed by fallout from the climate change debate in 2006, during work on its "Scenarios for the Future" study, which was a long time before IP was seen elsewhere as even a mild indicator of trouble on the horizon. However, it soon became apparent that the issue was too complex for a single institution to handle on its own and that broader alliances would be necessary with organisations which have access to complementary expertise.

In 2009, a formal agreement was reached on a programme of co-operation between the EPO, the UN Environment Programme (UNEP) and the International Centre for Trade and Sustainable Development (ICTSD), a leading NGO specialising in sustainable trade and technology transfer. The aim of this programme was to launch an empirical study to shed light on the role of patents in the transfer of climate change mitigation technologies. More partners soon joined in: the OECD Environment Directorate, leading business and industry associations (such as the International Chamber of Commerce (ICC), the Licensing Executives Society International (LESI), the World Business Council for Sustainable Development, and the Fraunhofer Gesellschaft), specialised governmental agencies like the Energy Research Centre of the Netherlands, and other NGOs and intergovernmental organisations. It was a first step towards creating a unique alliance among very diverse partners.

In parallel the EPO acquired observer status at the UN climate change conference.

This jig-saw of organisations and views - essentially brought together and co-ordinated by the EPO - eventually arrived at a common set of goals. All members were inspired by a single ambition: to harness the inherent capacities of the patent system with a view to introducing objective data and evidence into a debate that had hitherto been essentially data-free and thus highly speculative. Governments, their negotiators, researchers, political analysts, industry and other stakeholders urgently needed platforms to provide continuous and reliable, sector- and country-related information about relevant technologies, their ownership and the costs associated with their acquisition.

First, technologies in the field of renewable energy, biofuels and so-called "clean coal" were mapped. On the basis of this work, the EPO and external experts developed a new taxonomy of technologies and their applications, down to apparatuses and components. Patent examiners performed searches and retrieved worldwide patent data relating to these categories. Using this data, the OECD then carried out various statistical analyses, looking at development trends over time in specific sectors and countries. In this way, precise patent landscapes were established for the technologies under scrutiny. In parallel, a first-ever licensing survey was carried out among technology developers and potential licensors in the field of environmental technologies.

One and a half years later, all project targets have been met and the final report is expected to be published in the autumn of this year. The study not only provides many politically and otherwise relevant findings, it also makes suggestions for further analysis and research in the field. It also notes that the collection of patent data itself would constitute a very valuable asset for experts and other special interest groups alike. To match this need, the EPO decided to take advantage of the effort already invested and use it to produce a publicly available, continuous flow of patent information relating to the clean energy sector. A genuine new public good would thus be created for the benefit of the global knowledge economy.

The ideal solution proved to be a new, detailed classification scheme similar to others previously developed by the EPO to track and categorise new technological developments, such as nanotechnology. The scheme is designed to serve as an interface between the vast amount of technical knowledge contained in the patent documentation, and the information needs of society. To achieve this, the entire worldwide patent documentation had to be re-classified into more than 200 new categories.

Apart from being easily accessible to and understandable by non-experts, this new information tool will always be kept up to date and accurate. Embedding it in the EPO's classification scheme ensures that the collective intelligence of 4 000 patent examiners and classification experts maintains and improves it automatically on a daily basis.

The project and preliminary findings were presented at the Copenhagen Climate Summit in December 2009. The new classification system was made public during a side event at the last meeting of the UN Climate Change Convention's Subsidiary Bodies in Bonn on 9 June this year. The reactions from negotiators, industry representatives and NGOs in the densely packed room were positive. They left us in no doubt that there had been an urgent need for such an "offering" on the part of the patent system. Aside from all the acknowledgments and good publicity, this tool can help the negotiations to become more focused and evidence-based.

The UN Convention's Secretariat appreciates the great potential of the new tool and the EPO is currently discussing with them how to structure our co-operation in order to facilitate the negotiation process. This means that the weight of the patent system can be brought to bear at strategic level on the solution side of the negotiations equation. Such an outcome would amply demonstrate that patent authorities can successfully address, and solve, problems of overall societal concern.

We hope that this EPO commitment has cast some light on a largely unknown field and put in place an initial supporting pillar. We look forward to co-operating with our key partners, including the DPMA, in this important work.

Thank you for your attention.

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