INTA Chief Representative Officer Europe Hélène Nicora moderated a panel during a summit on “Industrial Property and Climate Change, What Opportunities Now?” on March 25 in Paris, France. The event was organized by the French Association for Industrial Property Counsel (CNCPI) with the support of Fabrice Mattei, Climate Change and IP Group Head of Rouse, Myanmar.
Michael Haddad, a United Nations climate change champion who will be the keynote speaker at INTA’s 2019 Annual Meeting, kicked off the event with an inspiring speech to the 150 intellectual property (IP) professionals, entrepreneurs, French Parliamentarians, economists, environmental experts, and academics.
Speakers explored the integration of climate change into IP strategies and the contribution of IP rights (IPRs) to a sustainable economy transition.
IPRs’ Influence on Climate Change
Speakers discussed how some developing countries have been criticizing IPRs for allowing monopolies and thus limiting imports of new technologies and innovations, while developed countries have been defending IPRs as allowing for a fair return on investment which has helped trigger business’s interest in researching innovative solutions. Guillaume Henry, (SZLEPER | HENRY Avocats, France) concluded that IPRs are now more and more acknowledged as part of the solution, rather than as an obstacle to innovation. This can also be explained by recent research demonstrating that IPRs have a positive impact on foreign investments, but do not affect international trade of capital goods.
Charlotte Beaumatin, IP Attaché in Washington D.C., French National Industrial Property Institute (INPI), explained that all IPRs can contribute to the fight against global warning. She acknowledged that the link between IP and climate change might not be so obvious at first glance, but that there is growing recognition that patents help provide a return on investment on green innovative solutions, while brands and designs also play a crucial role in marketing and developing these solutions. Ms. Beaumatin noted that IP will be featured in the “1planet lab,” an initiative launched by French President Emmanuel Macron, which consists of a group of 30 experts dedicated to identifying clear objectives to help save the planet.
This initiative is particularly important as it will involve IPRs, finally and officially, in the fight against climate change. Indeed, IPRs did not feature neither in the 1992 United Nations Framework Convention on Climate Change nor any subsequent climate agreements. Only references to technology transfers were included.
A Focus on Patents
When considering IPRs with an impact on climate change, there is a tendency to focus on patents and technology transfers. Speakers at several sessions referred to them as tools to promote innovation, enabling the diffusion of known technologies and the multiplication of innovations—aspects considered key in the fight against climate change.
Matthieu Glachant, Professor of Economy, MINES Paristech, PSL Research University, explained that 90 percent of of increased carbon emissions comes from developing countries. But while 90 percent of the need comes from developing countries, 80 percent of the needed technologies can be found in already developed countries, which highlights the importance of securing fair transfer of technologies.
However, Mr. Glachant condemned the perspective that patents are always the solution to trigger innovation. “Much depends on the conjuncture,” he said. For instance, Chinese companies managed to perfect existing photovoltaic technology (“learning by doing” instead of “learning by researching”) and took the lead in the market without using patents.
Right Patent Policy
Yann Ménière, Chief Economist at the European Patent Office (EPO), emphasized that the economic value of innovation depends on how attractive environmental policies make these innovations. Patents are only “the start of the adventure,” he said, in the sense that they allow the necessary research and investment into the technology, which will later be brought to life on the market. Mr. Ménière also explained that more needs to be done to facilitate access to patents for innovative companies. The EPO signed validation agreements with certain countries, whereby a European patent applicant can submit a request for extension or validation, and, with a fee, enjoy the same protection in those countries as if the applicant had filed a national application or obtained a patent. The EPO has also established a new classification scheme for technical attributes of technologies that can be loosely referred to as climate change mitigation. This makes it easier to retrieve patent documents that cover these technologies, and helps in creating an “economic intelligence” at the service of climate change.
In terms of best practices for patents, Christian Chun (Chun & Partners, Korea) presented the “accelerated procedure” to obtain a patent for green technologies introduced in China, Korea, and Japan.
Michael Levy, VP, Research and Innovation (AAQIUS Research Center, France) and Andréas Schuster, Co-founder (Orcan Energy, Germany) illustrated how they were able to use a portfolio of patents to develop their green technologies, and the various challenges they faced on the way to bringing their products to market. They both rejected the concept of compulsory licenses because they believed it would prevent inventors from receiving a fair return on investment and would discourage future investment in green technologies.
Norms and Green Certifications
A representative from the Association Française de Normalisation (AFNOR), the French Association for norms and certification, explained how norms have helped to set different environmental standards for the production and marketing of products. Nevertheless, it seems that controls on the compliance of these products with the established norms remains problematic, since controls differ in frequency and depth depending on the norm itself. Consumers need to be educated about these differences.
Certification labels and certification marks are another tool to promote green products, such as the EU “Eco Label.” Certification marks in the EU provide a recognizable sign certified by an independent and impartial third party, thereby also fostering consumer trust.
Brands and Their Role
In light of INTA’s mission to promote trademarks to foster consumer trust, economic growth, and innovation, the Association is interested in the way brands react to climate change.
Consumers are more and more keen to purchase brands that are environmentally-friendly. Climate change is particularly important to millennials, as stressed by recent studies, so brands must adapt to sustainable development, if they want to remain successful and respond to their consumers’ needs. Some brands have even gone further and engaged politically in the fight against climate change.
INTA’s 2019 Presidential Task Force on “Brands for a Better Society” will explore these issues, and whether there are strategic best practices for brands responding to climate change.
Rights holders can opt for a mitigation strategy (i.e., take action to reduce their environmental impact) and/or adaptation strategy (i.e., take action to adapt to climate change). Identifying the right strategy to fight climate change ultimately poses a challenge for Geographical Indications (GI) producers, who are bound by strict specifications and cannot relocate.
Charles Goemaere, Economic and Legal Director of the French Committee of Wine of Champagne, gave a presentation on how climate change has forced champagne producers to adapt, such as by banning pesticides by 2025, finding new grape varieties that would adapt to higher temperatures and resist insects without pesticides, or reducing the amount of glass in their bottles. This resulted in a change of their specifications.
It is expected that more and more GI rights holders for agricultural products, wine, and spirits will have to modify their geographical territory or adapt their production, processing or storage methods to evolving climate conditions, with potential consequences to their reputation, quality, price, and location.
David Desforges (Desforges Law, France), a lawyer who specializes in environment litigation, discussed the evolution of environment-related litigation. “It is important to note that we have evolved from an environmental law to a climate change law, with new rights and duties,” he noted.
There are currently more than 880 lawsuits in the world dealing with disputes over action or inaction related to climate change. Governments were the first to be targeted. The Netherlands, for instance, was condemned to reinforce its action against climate change in 2015. Four NGOs have also initiated a dispute against the French government over missed climate targets in December 2018.
However, more and more litigations are now instituted against companies and their technologies, such as petrol companies for their impact on carbon dioxide (CO2) emissions. For example, an Australian court decided to order the prohibition of the exploitation of a mine purely on environment grounds.
It seems that companies will be more and more exposed to litigation if they do not consider a sustainable strategy.
Impact of Emissions Trading
Emissions trading allows countries with higher carbon emissions to purchase the right to release more CO2 into the atmosphere from countries with lower carbon emissions. As such, carbon emissions trading is described as a tool that gives polluters an incentive to reduce their emissions.
However, Emilie Alberola (EcoAct, France) explained that there are different emission trading markets, so there are also different carbon prices. Unfortunately, the price of carbon in Europe is insufficient to promote innovation and allocating permits on the basis of past emissions can result in companies having an incentive to maintain emissions, instead of innovating to get greener.
The EU will be creating two funds, the so-called Innovation Fund (with revenues from the auctioning of 450 million allowances from 2020 to 2030) to finance green projects and the Modernization Fund to finance low carbon emitting energies.
Carbon Footprint Calculation Tool
Mr. Mattei, who was recently interviewed about climate change on INTA’s Brand & New podcast, spoke about a new tool that can calculate the carbon footprint of IPRs. The goal is for IPR holders to become aware of their carbon footprint, reduce it, and to compensate so as to achieve carbon emissions neutrality.
“The IP Carbon Footprint focuses on the CO2 emissions resulting from the acquisition, exploitation, or lack of exploitation of IPRs, expressed as CO2 equivalent. The calculation method captures the full life cycle of all IPRs ranging from their creation to enforcement. Internal and external, positive and negative CC effects are calculated,” he explained.
The summit concluded with the announcement of the creation of a new association focused on the ecological analysis of law, Association pour l’Analyse Ecologique du Droit (AED) on July 4, 2019, led by Guillaume Henry (SZLEPER | HENRY Avocats, France), co-author of the INPI report “Sustainable development & IP” and “Intellectual Property Rights and Green Technologies.”
AED will promote a green accountability model, and the analysis of the most efficient rule of law from the perspective of limiting its negative effects on the environment.
For more information on the summit, please contact Hélène Nicora, Chief Representative Officer – Europe at firstname.lastname@example.org.