Intellectual property: Protecting ideas is crucial for eco-technology to succeed

As governments worldwide address climate change, they are looking to inventors and research organisations for ideas.

They are also hoping that investors and manufacturing companies will play a part in development, motivated by the prospect of getting a return on investment through the exploitation of intellectual property (IP) rights, such as patents.

IP rights accrue to inventors and developers, and offer legal protection against plagiarists, as well as the right to decide who can use the technology and what it will cost.

Most green technologies will be protected by patents for new and industrially useful processes, methods, manufacture or machines, or for notable improvements to existing ones.

Although the application process can be long and costly, the owner of the patent has an exclusive right that stops others from making, using, selling, importing or copying without permission.

The success of eco-technology will owe as much to strategies for using and protecting IP as to the underlying processes or concepts.

Global distribution of technologies will mean having to make sure IP is protected in other jurisdictions and, as exclusivity is limited to 20 years, owners will need to capitalise on “newness” to break into important markets and then licensing for continuing revenue.

Green innovation is so important that the world’s largest economy has invested heavily. US patents for clean energy technologies in 2009 were at an all-time high, at 1,125.

The UK, US and Australia have all introduced fast-track schemes. “This ‘Green Channel’ should bring low-carbon technology to markets quicker, by avoiding a backlog of applications,” says Justin Watts, IP partner at Freshfields, the law firm.

Despite a decline during the economic downturn, the UK Patent Office receives more than 20,000 applications a week – of which 200 are “green” focused. The US pilot scheme aims to reduce the application process from as long as four years, to 12 months. Patent offices warn, though, that public disclosure will come earlier so details may be discovered by competitors.

In the decade following the 1997 Kyoto Protocol, the European Patent Office has seen steady growth in environmental patent applications, particularly for clean energy technologies.

According to David Sant, a patent attorney at law firm CMS Cameron McKenna, “Fuel cell patents dominate, at quadruple the number of competing eco-technologies. Wind energy has shown significant increases over seven years although solar energy is up 60 per cent on last year and is likely to overtake it.

“There has been a huge jump in biomass, too. In contrast, hydro-electric and tidal patents decreased during 2009.”

The highest number of clean energy patent applications is lodged by the US, which accounts for a quarter, followed by Germany and Japan at 18 and 16 per cent respectively in 2008. The same countries dominate in ownership of patents, with the US estimated to own about half, Japan just under a third and Germany almost a 10th globally.

Among emerging economies, most international applications came from South Korea, China, India, Singapore and Brazil, with China accounting for 10 per cent. South Korea owns three times as many clean energy patents as the UK.

“Surprisingly,” says Isabel Davies, an IP partner at CMS Cameron McKenna, “the top companies for owning clean energy patents are automobile companies, namely Honda, General Motors, Toyota and Nissan.

“Other less obvious players are General Electric – a leader in wind patents – Samsung for fuel cells and Canon in solar power.

“The Eco-Patent Commons, set up in 2008 through the World Business Council for Sustainable Development and in partnership with large corporations, has resulted in 100 patents being donated by companies (including Bosch, Dow, DuPont, Fuji-Xerox, IBM, Nokia, Pitney Bowes, Ricoh, Sony and Xerox) to facilitate collaboration to discover products that are environmentally beneficial.”

Green branding has become big business, as increasing consumer awareness has made eco-trademarks valuable. Companies are registering eco-trademarks to prevent competitors from copying branding symbols or attempting to pass off their products as those of others.

Andrew Hobson of law firm Reynolds Porter Chamberlain points out that “there is a ‘second tier’ of green technology consisting of low-technology and low-cost products, which are nevertheless widely used, such as environmentally friendlier cleaning products”.