Clean/Green Tech and Patents: A Delicate (Policy) Dance

Clean/Green Tech and Patents: A Delicate (Policy) Dance

Every new technology growth area goes through a burst of innovation, collaboration and protection. Clean and green energy technology is no different. The last few years have seen a steep rise in the filing of patents on solar, wind and other green energy technologies. This is good, right? Companies are taking big risks on novel solutions to the energy and climate change problems. All the companies will contribute to the technology we all need – even if they fail in the market. And those that succeed will want to protect their innovations – or why take the risk. But what about making these eco-friendly technologies widely available as quickly and cheaply as possible? This would be good energy and environmental policy. More market choice = lower costs for all.

By now, you're seeing the inherent conflict between clean/green tech and the traditional world of patent protection. Of course, pharmaceutical patents have presented the same challenges – potential market exclusivity and profits drive innovation while the resulting technology helps humanity. And patents, while occasionally creating havoc, force further innovation by competitors. So, in the abstract, it all works out for the common good (we hope).

There are a number of things in play in the clean/green IP space reflecting this tension between private rights and public needs. Here are a few to keep an eye on.

Peace and Love – the Eco-Patent Commons.

In early 2008, IBM, Nokia, Sony and other corporations, in partnership with the World Business Council for Sustainable Development (WBSC), set up an Eco-Patent Commons. Basically, the corporations got together and have donated over 100 clean/green tech patents to a royalty-free pool for use by the public. This is a great thing. While some of the patents are undoubtedly of lesser value (or perceived lesser), just taking any infringement risk away for use of the technologies will promote innovation, a cleaner environment and potentially some new enterprises. Here's a link for more information (WBSC site for the Eco-Patent Commons).

Climate Change and Patents

The U.S. Patent&Trademark Office (PTO) just announced last week that it is implementing a pilot program to speed up the process for green technology patents. While the details are still being worked out, in essence, companies with pending patent applications for green technologies would be able to petition to have their patent applications reviewed more quickly. The PTO estimates that the pilot project could knock a year off the normal protracted time for patent examination. Given the ongoing backlog of patent applications, this speedier process will provide clean/green tech companies a distinct market advantage and incentivize more patent filings. Of course, speeding up the release of green tech patents could create uncertainty in the marketplace – which could lead to patent litigation…

Open Warfare – Not a Conclusion

To round out the story, keep in mind that there are several pending patent lawsuits in the U.S. related to clean/green technology. GE is currently suing Mitsubishi for damages in Texas federal court related to highly-efficient wind turbine technology. In another suit in California federal court, Akeena Solar and Zep Solar are fighting over patent rights in modular solar cell bracket systems, which make it easier and cheaper to install solar cells. While these lawsuits might be good for the company shareholders, whether these patent enforcement actions will promote faster access to wind and solar energy in the short-term is a different question. Of course, would these companies have even invested in the technology if they had no ability to protect it?