How Intelligent Intellectual Property Policies Can Create a Global Sustainable Energy Infrastructure

Intellectual property is the throttle of the global innovation engine. Applied properly, the throttle can accelerate innovation and support business, governmental, and humanitarian goals. Set incorrectly, it can stifle innovation or exacerbate inequality. Intellectual property policy, therefore, is a key piece of the march toward a global, sustainable energy model. Yet curiously, little attention is being paid to intellectual property policies.

The remarkable dearth of published work or policy papers on intellectual property as it relates to renewable energy highlights the difficulty in developing it. Yet without a coherent policy, creating a global sustainable energy system will be, at best, slower than need be. The major barrier to developing such a policy is the conflict among business, governmental, and non-governmental organizational interests. However, just because something is difficult does not mean it should be ignored.

Yet that’s what most policy-making bodies have chosen to do. Neither the Organisation for Economic Cooperation and Development (OECD), the United Nations nor any of their related organizations has developed intellectual property policies on sustainable energy. Individual nations also have been mostly silent on the issue, defaulting to their standard national policies on intellectual property. The issue of global sustainable energy, however, presents a special situation that a patchwork of national policies and transnational treaties cannot address.

United States and European Union Intellectual Property Policy

As global leaders, both the United States and European Union have important roles to play on the issue of intellectual property policy. Unfortunately, both have failed to lead efforts to develop a coherent policy. Instead, each has relied on its current intellectual property policies.

In the US, patents are granted for a period of 20 years from the date of application, endowing the holder with the right to exclude others from selling products made by the patented process or of the patented design. To be granted a patent, an invention must satisfy three criteria: utility, novelty, and non-obviousness. Critics of US patent policy point out that when US courts granted the right to patent methods of doing business and software they created patent thickets, backlogging the US Patent and Trademark Office (USPTO) with years of applications. Moreover, many critics believe it is simply too easy to get a patent in the United States.

In 2007, however, the US Supreme Court issued a landmark intellectual property decision in KSR International Co. v. Teleflex Inc., raising the bar for obviousness by ruling that simply combining elements from the public domain is insufficient grounds for a patent if it yields predictable results. This ruling has important ramifications for renewable energy intellectual property because most of the fundamental elements of sustainable energy science have long been off patent. In many cases, improvements in sustainable energy infrastructure are incremental and built off this mature, fundamental science. Or they result from a combination of older technologies or previous technology that has been repurposed. The result is questions about whether advances in the area are novel enough, and if they build off public domain science or still-patented work.

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