Climate change is here, and it is there to stay. It is undeniable. It is inevitable. It was never in doubt (barring the odd pollution apologist and climate change denier!). The image of the young Greta Thunberg’s impassioned speech holding the older generations responsible for the current state of affairs is one which cannot be forgotten anytime soon – and neither it should be. Climate Change is not “trending news”, it is not a “fad” which must be indulged a few times of the year, it is in fact a harsh reality which everyone must face and share and shoulder equal blame for. However, mere acknowledging guilt or responsibility is not the solution, as mere pontification will neither stop climate change, nor make it any better.
The change in climate has tremendously resulted in imbalance and impacted the ecosystem irrevocably. Melting glaciers, excessive and unseasonal rains, rising temperatures and sea levels, widespread droughts, cyclones, tsunamis, and the like, are some of the most visible effects of climate change. The scenes of devastation left in the wake of such calamities are proof that action has to be taken, before it is too late (if it already isn’t so). Environmental pollution is undeniably one of most important driving forces behind climate change.
It can be said that intellectual property has a direct co-relation with technology which may be used to combat climate change, most notably by way of patent filings. Intellectual Property is a product of the ideas of human intellect that need to be protected1 , and especially those innovations that have the potential of combating climate change, so as to provide the innovator all the tools to develop and implement their innovations for the good of mankind.
Intellectual property in this context, covers inventions and innovations which may be of great help to various sectors of economy as well as a multitude of stakeholders. ‘Green Technology’ is one such important aspect. ‘Green Technology’ may be defined as those technologies and innovations which may help the environment (in a broad sense). Correspondingly, ‘Green IP’ may refer to the protection of Green Technology.2 Particularly, green technology relates to environment friendly technologies aimed at protecting the environment by reducing the reasonable hazards caused to the environment due to increase in urbanization, globalization, and human intervention. Green technology covers wide areas including green chemistry, environmental science, promoting sustainability, environmental monitoring, and preserving natural environment.3
Some of the examples of existing inventions on green technology includes:4
Article 7 of the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) recognizes one such role of intellectual property rights, in the context of environmental concerns:
“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”5
Similarly, an IP system exists to protect green technologies is one which must be inculcated on a global basis. Such progressive green technologies are to be protected by way of ‘Green IP’, which confers legal protection to green tech innovations, perhaps over and above the system prevalent for ‘normal’ innovations/ inventions.
Green patent is one such green intellectual property, wherein the term may be defined as a patent on products or designs that provide environmental benefits.6 This promotes green technologies beneficial to the environment including climate change. Furthermore, if such a patent system is channelized in the right direction, it may aid in achieving economic and environmental sustainability, and in the long run, perhaps help contain and reverse climate change. Green patent system also society to utilize its wealth towards the betterment of mankind, while decreasing the use of fossil fuel energy and such polluting materials. It serves as an incentive to innovate regarding such subject matter as well.
Some of the benefits of patenting and promoting green technology include:
Considering the unparalleled importance of green technologies in protecting the environment and simultaneously encouraging economies, there is a need to encourage such technologies and IP protection systems, which recognizes and stimulates Green Technology.
In view of the same, several initiatives have been taken by various nations over the years, in order to encourage green technologies as mentioned below:
In view of the above, it can be concluded that Intellectual Property Rights play a significant role in protecting and encouraging the development of green technologies that contribute toward sustainable future. Moreover, several nations and international organizations are efficiently contributing towards the enhancement of such technologies which are useful against adverse effects of climate change and aim to protect environment. Thus, a sustainable future is promised, which is being supported by Green IP systems in some countries, and further augmented by several international organizations.
The “green-tech innovation surge” in order to fight climate change and filing of patent application for green energy technology in recent years has already been covered by us.
Several factors including climate change, soil degradation, deforestation, excessive use of resources, and other human activities are responsible pose adverse effects on the environment. Green technologies serve an important role in overcoming such factors, ensuring environmental sustainability. Patenting of such technologies aids in creating awareness, reducing the use of material degrading the environment, and ensuring a clean and sustainable environment. Apart from environmental sustainability, patenting green technologies also provides incentives to the inventors, thereby contributing to economic sustainability. However, the entire patent process may be complex and time-consuming in respect of the stages involved in filing of the patent application as the patent application undergoes several stages until the grant. The waiting period of the patent application may also entail several rounds of information exchange, which may have undesired repercussions, between an applicant and the respective patent office. Due to the filing of a large number of patent applications on a daily basis, there is a continuous rise in the accumulation of unexamined patent applications at various patent offices. In view thereof, there are several programs developed in various jurisdictions so as to expedite the examination of the patent applications (as described herein):
On June 3, 2022, the United States Patent and Trademark Office (USPTO) launched a Climate Change Mitigation Pilot Program to accelerate the examination of patent applications for innovations that reduce greenhouse gas emissions. Under the climate change mitigation pilot program, patent applications relating to technologies aiming to mitigate climate change by reducing greenhouse gas emissions are advanced out of turn for examination, resulting in accelerated review by a USPTO Examiner. For qualifying the applications under said program, the applicant need not incur petition to make special fee and does not required to comply other requirements of the program.17,18
The program enables exploring accelerated review of patent applications relating to energy conservation, environmental quality, decline in emission of greenhouse gases, etc. By focussing on decline in emission of greenhouse gases, the program aims to match efforts to boost climate resilience and adaptation. The pilot program will be accessible to public till June 5, 2023, or till the USPTO receives 1,000 grantable petitions, whichever is earlier, subject to its discretion to terminate prior.19
The U.S. Patent and Trademark Office (USPTO) provides various programs for accelerating the patent grant process for green technologies. The United States Patent and Trademark Office (USPTO) will accept petitions so as to make special under the program till June 5, 2023 or until 1,000 applications have been granted special status under this program, whichever occurs earlier. This program aligns with and supports Executive Order 14008, dated January 27, 2021, and supports the USPTO’s efforts to;
On October 2, 2010, the Canadian Intellectual Property Office (CIPO) set forth proposed amendments to the Patent Rules, permitting additional means for examination of applications without payment of a fee if the applicant files a declaration with a commissioner indicating that the application pertains to a technology, wherein the commercialization of such technology would aid in reducing environmental impacts or which preserves the natural environment and resources. The CIPO held a consultation period of thirty days for the proposed rules. The proposed rules did not contain a definition of the term “green technology,” however only necessitates the declaration provided above. The rules provides stern restriction regarding reviving of patent applications from abandonment, and includes a limitation that the patent application deemed to have been abandoned after April 30, 2011, cannot be revived for accelerated examination.21
On September 25, 2009, Australia’s Parliamentary Secretary for Innovation and Industry announced a fast tracking program for green technology solutions. The program permits expedited examination of patent applications relating to green technology without any fee. However, in order to qualify for this program, the applicant must provide a valid reason to take benefit of expedited examination of any such patent applications. The program asserts to permit examination of such patent applications within four to eight weeks after filing of a petition.22
On November 1, 2009, the Japan Patent Office commenced an accelerated examination program for patent applications relating to green technology. For a faster examination of a patent application under this program, there are two requirements that must be met.
On May 12, 2009, the United Kingdom Intellectual Property Office, declared a system involving fast-tracking of green technology through patent examination process. The initial press release states that the accelerated examination will be made available to any patent applicant stating a reasonable assertion that the captioned invention exhibits environmental benefits.
The Green Channel permits UK patent applications to be expedited if the idea relates to green or environmentally friendly technologies. In order to access said channel, the applicant of patent application must submit a written request and indicate how the subject matter of the invention described by their patent application is environmentally beneficial. Also, the Applicant must specify which action(s), such as a search and/or examination and/or publication, the Applicant would like to expedite. The Applicant may file a request for such expedited process at any time after submission of the application or at a later time.
The program was titled as “Green Channel” and permits access to applicants to accelerate search and examination service as provided above without a fee or declaration depending on a need for examination. The application under this program does not require to fulfil any classification requirement and merely provide as much explanation as necessary to elucidate why the captioned invention is environmentally-friendly. The Intellectual Property Office of UK additionally includes a search solely for the green channel applications on their website.24
In April 2012, National Institute of Industrial Property (INPI) initiated channelling its Green Patents Program, for faster examination for Environmentally Sensitive technologies (EST) related patent applications. The patent applications filed with the INPI only on or after January 2, 2011, were qualified for the faster examination under the program. The International applications that were filed under the Patent Cooperation Treaty (PCT) and had entered the national phase in Brazil were excluded in the program. Amid other necessities, the eligible applications may include a maximum of 15 claims (defining the exclusive right granted to the patent applicant) and maximum three independent claims (stand-alone claims containing a preamble and all the elements required to describe the invention). The INPI aims to ensure to its operational efficiency, and particularly, to minimize severe backlog in processing of patent applications and thus stimulate commercialization of environmentally sound technologies in line with worldwide commitments of the country.25
Many national and supra-national patent offers employs a combination of Patent Prosecution Highway (PPH) and green technology programs, offering expedited examination of patent application relating to green technology. Further, in case if any intellectual property office has not established any program relating to expedited examination of the green technology related patent applications, it does not preclude applicants from using other countries’ green technology programs to speed up the patenting process. For instance, Canada has a number of PPH agreements similar to the PPH agreements that USPTO share with other countries. The loose requirements for admission into the expedited examination program in Canada may be used in combination with the Patent Prosecution Highway program with the U.S. in order to accelerate examination of applications that would fail to pass the stern standards required for accelerated examination in the U.S. While the approach to combine two expedited programs may not be unique to the Green Technology and PPH programs, it seems counterintuitive that an agency that has decided not to execute a green technology program would still have to examine the applications out of turn when such applications come in through the PPH program.26
In India, the legislation relating to the role of green patents in relation to sustainable human development needs to be streamlined. There is no specific provision for green patents yet. However, the Indian Patent Office (IPO) exhibits a provision for receiving expedited examination of patent applications by filing a request in Form 18A. The request for expedited examination in India can be made only after publication of the patent application, depending on whether an application for an early publication has been filed or not. If a request for publication has already been made then also the request for expedited examination can be made. Additionally, an express request for expediting examination of Indian national phase applications can be filed by an Applicant under Patent Co-operation Treaty (PCT).
Another strategy to accelerate the grant of patent includes Patent Prosecution Highway, which is program aimed to fast-track patent examinations, advantageous to both applicant and the patent office. The PPH also other benefits such as cost saving, as well as, high allowance rates. The first PPH program in India was established in year 2019, which was a collaboration between the IPO and the Japan Patent Office (JPO). Under PPH, an applicant may use positive examination results from one patent office so as to simplify prosecution in a second patent office. The PPH facilitates a patent offices to consider examination handled by other patent office for effective processing of patent applications. The PPH minimizes timelines and workload for prosecution.28
In India, the examination process can be accelerated by initiating request for expedited examination by eligible applicants by filing Form 18 A under Rule 24C and request the Indian Patent Office to accelerate the examination of patent application. A request for publication on Form 9 must be filed along with request for expedited examination unless the patent application has already been published. As per the Indian Patent Act, 1970, an applicant can make a request for expedited examination if applicant:
India has gradually begun to perceive that pollution is not only a troublesome consequence of environmental degradation but also a major hazard to growth and development of the Indian economy, which lead to substantial transformation in mind-set of people and political will. Significant advancement in technologies relating to clean energy has opened doors for business prospects from the ‘green economy transition’
The countries that have already developed a base for green sectors have a lead. Such countries have abundant capital and expertise required to scale the industry. In terms of scale, India is in a profitable position. India has a well-known industry in low-carbon environmental goods and services (LCEGS) and possess third-highest LCEGS sales in Asia.
India has a huge scope of having a green boom in approaching years as it already has a marketplace for green goods/services. Indian holds various benefits varying from knowledge spillovers to economies of scale, which makes it constructive for India to progress into large green market with ease. However, some improvements are required for complete development of the sector as a whole
On February 22, 2011, the United Nations Environment Programme (UNEP) announced that India was one of the rapidly growing economies among other middle-income countries. Presently, India is aiming on one of the leading green energy projects that would produce 20,000 megawatts (MW) of solar power and 3,000 MW from wind farms on 50,000 acres of land in Karnataka
Green technology is advantageous for India as it will generate employment opportunities for abundant labour force. The use of green technology will develop our base for employment, which would ultimate result in economic development.
It has been reported that global warming resulting from the release of greenhouse gases and dependence on non-renewable energy sources has been greatly reduced by adoption of green technologies. India is more focussed on the use of alternative energy sources such as solar, wind, and biomass by employing green technology approach. Therefore, this will be a win-win situation for India with regard to economic development and environmental sustainability.
In view of the above, there exist a need to develop a robust innovation system, and enable access and reform the intellectual property systems, which may aid in development, evolution and innovation of technology, products and services required in facilitating dynamic shift to the green economy.
The intellectual property system plays an essential function in protecting innovations related to green technologies. All such innovations are protected under ‘green intellectual property’, which is legal protection of innovations in the field of green technology.
India’s position on the Global Innovation Index has improved due to advancements in green technologies. India rose from 81st place in 2015–16 to 46th place in 2021. The quantity of green patents India has filed in recent years has a significant impact on this. According to the data released by the ministry of commerce and industry more than 91,500 patents were granted between 2016–17 and 2020–21, out of which 61,186 patents for green technologies were granted. Almost 90% of the innovations covered under 61,186 green patents were related to waste management and alternative energy sources. However, rest of the green patents relates to other technological sectors such as energy conservation, transportation technologies, nuclear power generation and agriculture and forestry.
Traditional Indian companies like Tata Power solar system, Suzlon Energy, CSIR, Procter & Gamble and Attero Recycling Pvt. Ltd are leading manufacturers of green innovations. Additionally, segregation of green patents between 2016-2021 are as follows:
Unsurprisingly, the world is starting to identify India as a desirable location for investments in renewable energy due to the rise in green patent innovations. There have been significant financial and knowledge-sharing investments made in India’s green energy sector. Some nations have started talking about or are actively working with India on green cooperation. India and Denmark decided to form the Green Strategic Partnership in 2020 to collaborate on environmentfriendly solutions to developmental challenges. Danish companies of Denmark have decided to transfer their knowledge of clean air, water management, and renewable energy to Indian shores.
Similar to other countries, India has agreed to form a Climate Working Group (CWG) with the USA, Japan, and Australia in order to foster collaboration on climate action and capacity building for the implementation of the Paris Agreement on Climate Change. These four nations, together referred to as QUAD, where they will also support knowledge transfer and ethical business practices in the field of developing technologies, particularly green technologies. The Swachh Bharat program of India has gradually developed into a Nationwide Movement where people are actively taking part in cleaning initiatives all around the nation. Unsurprisingly, the waste management industry in India is also experiencing a significant amount of green innovation.
In spite of this remarkable progress, India still has a lot of catching up to do in contrast to nations like China, the USA, Japan, and Korea, who are responsible for holding almost 60% of the world’s green technology patents
If India adopt reforms and innovations in the green intellectual property segment and related policies, it may surely outstand other nations in terms of investments and foreign direct investments that India gets for the enhancement of our green market by 2025.29.
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