[A2k] TWN INFO: No patents on climate-friendly technologies, says South

[Sangeeta]

Please find below a report on proposals put forward by developing countries
on measures to address intellectual property under the UN Framework
Convention on Climate Change (UNFCCC).

The Group of 77 and China as well as several developing countries in their
individual capacity have made proposals calling for climate-friendly
technologies to be excluded from patenting.

The proposals were made during the negotiations on climate change in Bonn
that ends today.

Regards
Sangeeta Shashikant
Third World Network

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No patents on climate-friendly technologies, says South
SUNS #6718 Friday 12 June 2009

Bonn, 11 Jun (Sangeeta Shashikant) -- The Group of 77 and China as well as
several developing countries in their individual capacity have made
proposals calling for climate-friendly technologies to be excluded from
patenting.

In their text submitted Wednesday, the G77 and China proposed that "All
necessary steps shall be immediately taken in all relevant fora to
mandatorily exclude from patenting climate-friendly technologies held by
Annex II countries which can be used to adapt to or mitigate climate
change". [Annex II of the Convention contains a list of 24 developed
countries with financial obligations].

The "no patents" proposal is one of several other ambitious proposals put
forward by developing countries to address the intellectual property barrier
to the transfer of and access to environmentally-sound technologies for
climate mitigation and adaptation (ESTs).

The proposals were submitted on "Enhanced action on development and transfer
of technology", one of the five building blocks of the Bali Action Plan
(BAP) adopted by Parties to the UN Framework Convention on Climate Change
(UNFCCC) in December 2007. These proposals were added during the discussion
of the text of the Chair of the Ad-hoc Working Group on Long-Term
Co-operative Action (AWG-LCA) in the informal plenary on 10 June.

The work of the AWG-LCA is to implement the Bali Action Plan in order to
enable the full, effective and sustained implementation of the UNFCCC
through long-term cooperative action now, up to and beyond 2012.

Developing countries also called for: (i) the adoption of a Declaration on
IPRs and Environmentally Sound Technologies in relevant fora; (ii) the use
to the full flexibilities contained in the TRIPS Agreement including
compulsory licensing to access intellectual property protected technologies;
(iii) steps to ensure sharing of publicly funded technologies and related
know-how; and (iv) the creation of a "Global Technology Pool for Climate
Change" that ensures access to technologies including on royalty free terms.

The call for bold action to deal with IPRs, an obstacle to the transfer of
and access to ESTs, follows heated debate that took place last Saturday,
largely along North-South lines.

Developed countries, in particular Japan, Canada, Australia, Switzerland and
the US insisted on strong IPR regimes, even opposing the use of compulsory
licensing, which is allowed under the TRIPS Agreement (See SUNS #6716 dated
10 June 2009). The developed countries also questioned the need for new
institutional arrangements, in particular, the technology mechanism that has
been proposed by the G77 and China.

On the other hand, developing countries had argued that there was a need for
patent exclusion on climate technologies, given the need for a global and
systemic response to address the global challenge of climate change, adding
that the current TRIPS flexibilities were inadequate.

The Philippines proposed that: "All necessary steps shall be immediately
taken in all relevant fora to mandatorily exclude from patenting
environmentally sound technologies which can be used to adapt to or mitigate
climate change".

The Philippines also proposed that: "Biological resources including
microorganisms, plant and animal species and varieties, and parts thereof
that are used for adaptation and mitigation of climate change shall not be
patented".

Bolivia proposed that Parties should "take all steps necessary in all fora
to mandatorily exclude from patenting in developing countries
environmentally sound technologies to adapt to or mitigate climate change,
including those developed through funding by governments or international
agencies" and "to revoke in developing countries all existing patents on
essential/urgent environmentally sound technologies to adapt to or mitigate
climate change".

It also proposed text that "nothing in any international agreement on
intellectual property shall be interpreted or implemented in a manner that
limits or prevents any Party from taking any measures to address adaptation
or mitigation of climate change, in particular the development and transfer
of, and access to technologies".

Other developing countries have also made proposals reflecting a similar
sentiment as follows:

"[[LDCs][Countries vulnerable to the adverse effects of climate change]
should be exempted from patent protection of climate-related technologies
for adaptation and mitigation, as required for capacity building and
development needs.

[Genetic resources, including germplasms of plant and animal species and
varieties that are essential for adaptation in agriculture, shall not be
patented by multinational or any other corporations.]]]"

Aside from the "no patents" proposal, the Chair's text as well as the
various submissions of countries during the technology debate also contains
other proposals to address the IPR barrier.

Some of the proposals envisage bolder actions to overcome the IPR obstacle,
such as "Limited/reduced time for patents on climate friendly technologies".

The Philippines proposed language to improve the Chair's text that supported
the use of TRIPS flexibilities as well as to ensure the sharing of
publicly-funded technologies and related know-how. It proposed the
following:

"Specific measures shall be taken and mechanisms developed to remove
existing barriers to development and transfer of technologies from developed
to developing country Parties arising from intellectual property rights
(IPR) protection, including:

(i) to use to the full flexibilities contained in the Trade Related Aspects
of Intellectual Property Rights (TRIPS) including Compulsory licensing to
access intellectual property protected technologies;

(ii) take steps to ensure sharing of publicly funded technologies and
related know-how including by making the technologies available in the
public domain at an affordable price and on terms and conditions that
promotes access for developing countries".

The Philippines also proposed the "adoption of a Declaration on IPRs and
Environmentally Sound Technologies in relevant fora to inter alia reaffirm
the flexibilities in the TRIPS Agreement and enhance the enabling
environment for implementing these flexibilities".

The Chair's text had "Compulsory licensing for specific patented
technologies" as a specific measure to remove IPR protection barriers to
technology development and transfer.

The G77 and China proposed the "creation of a Global Technology Pool for
Climate Change' that promotes and ensures access to intellectual property
protected technologies and associated know-how to developing countries
including on non-exclusive royalty-free terms in order to provide better
information service and reduce transaction costs".

The Philippines made a similar proposal in its submission including an
additional paragraph that states: "All necessary measures and actions shall
be immediately taken to facilitate technology pools that include associated
trade secrets and know-how on environmentally sound technologies and enable
them to be accessed, including on royalty-free terms for developing
countries".

The technology pool proposal is similar to a proposal in Bolivia's
submission. The Bolivian proposal also speaks of immediately creating and
providing "new and additional financing that is adequate, predictable and
sustainable for joint technology excellence centres in developing countries,
to enable entities in these countries to do research and development
especially on adaptation as well as mitigation technologies" and "to ensure
that any technology transfer to developing countries is appropriate for the
developing countries concerned in order to enable its effective
utilization".

(The immediacy is based on the mandate of the AWG-LCA to enhance
implementation of the Convention "now, up to and beyond 2012".)

The Chair's text also contains a proposal for "The Executive Body on
Technology", "to establish a committee, an advisory panel, or designate some
other body, to proactively address patents and related intellectual property
issues to ensure both increased innovation and increased access both for
mitigation and adaptation technologies".

It further states that the committee/panel should: "(a) Actively engage
enterprises and institutions in both developed and developing countries; (b)
Develop a clear framework for evaluation and determining when intellectual
property becomes a barrier to international technology research,
development, deployment, diffusion and transfer and provide options for
corrective action; ( c) Make recommendation back to the UNFCCC COP or
COP/MOP on barriers that may require further actions".

There are also proposals in the Chair's text that mention "Preferential
pricing", "Differential pricing between the developed and developing
countries", "promoting innovative IPR sharing arrangements for joint
development of Environmentally Sound Technologies", and "Promoting Joint
technological or patent pools for the development and transfer of
technologies to the developing countries at low cost". +