[A2k] Reuters: The Next Climate Deal: How Big is the Battle for Cleantech IP?

[Thiru Balasubramaniam]

http://www.reuters.com/article/earth2Tech/idUS377425647420090605

The Next Climate Deal: How Big is the Battle for Cleantech IP?
Fri Jun 5, 2009 6:05pm EDT

Late last month, the U.S. Chamber of Commerce pulled together a small,
motley crew of companies with a stake in upcoming climate policy to
launch its Innovation, Development & Employment Alliance =97 a group
trying to ensure that an international climate deal doesn=92t weaken
rules about who can profit from cleantech innovations. As we=92ve noted
before, the V-P of the Chamber of Commerce=92s intellectual property
center called the UN climate negotiations taking place in Copenhagen
this December =93the IP battle of the year.=94

But for those waging battles to defend IP, the consequences of
negotiators taking a =93very collaborative=94 approach to reducing
greenhouse gas emissions and sharing =93all intellectual property as
much as possible,=94 as U.S. Energy Secretary Steven Chu has urged, may
not be such big a threat.

=93In a world that=92s innovating quickly, the life cycle of IP is short,=
=94
Alan Salzman, CEO and managing partner of VantagePoint Venture
Partners told us in an interview recently, shortly after he returned
from a summit in Copenhagen designed to get the business community on
the same page about climate policies. Asked if he was worried about
the next climate deal, which will replace the Kyoto Protocol,
compromising IP protections, he said, =93It=92s not to my mind one of the
larger issues.=94

Eric Walters, a partner and chair of the Palo Alto, Calif., litigation
department for the law firm Morrison & Foerster (he focuses mostly on
intellectual property for high-tech companies), also said climate
policy is unlikely to present a serious threat to IP protections, or
to companies=92 ability to profit from their patented innovations. The
biggest barriers to deployment of advanced clean energy technologies
in developing countries, he said, have to do with economics and
infrastructure =97 not patents. So while it=92s =93unclear what kinds of
policies are likely to be proposed=94 in Copenhagen, he said, knocking
down IP protections probably would not further the goals of making
these technologies available worldwide.

Both Walters and John Wetherell, who heads up the intellectual
property practice in the law firm Pillsbury Winthrop=92s San Diego,
Calif. office, mentioned compulsory licensing =97 basically an option
for governments to force companies to license technology if they=92re
not selling it in a particular market =97 as a policy to watch for that
might affect the way cleantech innovators do business internationally.
In the pharmaceutical industry, compulsory licensing is often used to
make life-saving drugs more widely available at lower cost than they
would be if one company controlled all production.

But some of the strongest arguments for compulsory licensing in
biotech don=92t translate directly to cleantech. Walters pointed out
that in the cleantech industry there are often =93dozens of competing
companies=94 racing to improve upon existing technologies, while in
biotech there=92s often, say, just one cancer drug. Wetherell added that
in medicine, =93the cost of goods for a lot of drugs is quite low.
Development is expensive.=94 But with solar cells, for example,
production costs are high by comparison.

Still, compulsory licensing could be applied to cleantech and could be
effective for deploying certain technologies, such as solar panels, in
countries, like India or China, that have the infrastructure and
expertise to build them, but where companies may not yet be selling
their products. In that situation a government could force a company
to license its technology for a nominal fee. It might not be the way
that companies will make the most money, but it comes down to =93the
property rights of the patent holder vs. the societal needs,=94 said
Wetherell.

Should cleantech innovators be worried about compulsory licensing?
Wetherell doesn=92t think so =97 just look at the drug developers that the
policy already applies to. As he put it, =93It doesn=92t look like the

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


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