TECHNOLOGY TRANSFER TO COMBAT CLIMATE CHANGE
REVATHI NARAYANASAMY, Advocate, Madras High Court
Abstract
Climate change poses daunting challenges to the future of humanities. Technology transfer is an effective and comprehensive approach for dealing with climate change. International cooperation on greenhouse gas mitigation and adaptation of climate change all involve in transfers of mitigation technologies or dissemination of knowledge on climate change. Technology transfer is an inseparable component of any policy response of GHG mitigation and adaptation to climate change. In this paper, we briefly define the scope of technology transfer in climate change; concisely survey the literature regarding technology transfer issues.
The central theme of this assessment paper is to provide a tentative estimation of benefit and cost ratio (B/C ratio) of technology transfers in climate change. Technology transfer is an encompassing notion in climate change policies because mitigation and adaptation all requires technologies. Quantifying B/C ratio of technology transfer is extremely difficult due to diversity of technologies and different institutional setting of transfers. In this paper, we adopt an indirect approach to estimate B/C ratio of technology transfer. Namely, we capture the financial transfer flows - the dual part of technology transfer flows. Using the RICE model, the optimal financial transfers that facilitate technology transfers are calculated under two representative policy scenarios and two different discount rates. The B/C ratios are estimated from the model solutions.
Major findings include: magnitudes of technology transfers are policy-related and vary significantly in different policy scenario; enabling technology transfers always have net gains thus are desirable; assessing the benefits and costs of technology transfers have to be in connection with the underlining policies; promoting tangible and intangible technology transfers is crucial for dealing with climate change.
TECHNOLOGY TRANSFER TO COMBAT CLIMATE CHANGE
INTRODUCTION
Climate change is a persevering challenge faced by entire humanities in the 21st century and beyond. Economic activities since the industrial revolution, mainly fossil fuel combustions and agriculture, have emitted huge amounts of greenhouse gases (GHGs) into the atmosphere. The anthropogenic GHG emission is the main source for measureable atmospheric temperature increases over the past decades (IPCC, 2007). Economists predict that global GHG emissions will keep increasing in the future, which will lead to further temperature increase. The climate that human beings have been used to for centuries will change drastically (IPCC, 2007).
The detrimental impacts of climate change have long-lasting, sometimes irreversible, consequences. To alleviate these impacts, international cooperation on GHG emission reduction is urgently called for. The United Nations framework Convention on Climate Change (UNFCCC), established in 1992, has been the grand institutional setting for potential international cooperation on climate change. Technology transfers as the means of international cooperation and concrete approach of GHG mitigation have been at the center of policy debates and on the negotiation table.
International community has recognized the vital importance of technology transfer in coping with climate change. Without technology transfers, “it may be difficult to achieve emission reduction at a significant scale.” (IPCC, 2007) Technology transfer should be a key component of any effective GHG mitigation strategies. Therefore, comprehensive studies of technology transfer issues are crucial to GHG mitigation policy designs and implementations.
A global commitment to a concerted effort under the United Nations system began in 1992 with the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) and its entry into force upon ratification by the required number of signatories in 1994. Its objective is “to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas (GHG) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” (United Nations 1992)[1] In achieving this objective it was fully realised that there are different national circumstances, complexities, and responsibilities among and within nations, as articulated in the principle of common but differentiated responsibilities and respective capabilities.
The Definition of Technology Transfers
The concept of technology transfer can be very broad. Here we quote the definition of technology transfer from IPCC (2000): “[technology transfer is] a broad set of processes covering the flows of know-how, experience and equipment for mitigating and adapting to climate change amongst different stakeholders such as governments, private sector entities, financial institutions, NGOs and research/education institutions”. Nevertheless, TT may convey varied connotations by scholars or decision makers under different contexts. The above definition is a balanced one.
The description of TT concept contains several components. In TT processes, there are providers/donors and recipients. Providers/donors are generally from developed countries; recipients are in developing countries. A TT process takes place across borders. The entities (stakeholders) in a TT process can be governments, NGOs, international agencies, or private sectors. In this assessment paper, we use developed countries (North) and developing countries (South) as “proxies” for entities in TT processes.
TT processes involve primary flows and dual flows. The primary flow is tangible technologies or intangible “know-how” from developed countries to developing countries; the dual flow is the money that finances the TT. While the sources and destinations of the primary flows are transparent (from North to South), the directions of the dual flows can be complicated. If developed countries fund the TT process, money flows from North to South; if the TT process is a part of international trade transaction, money flows from South to North.
The institutional setting and market structure of TT processes are diverse. Both governments and international organizations sponsor and channel TT. Some exemplary projects of TT have governmental backings on both sides. For example, many EST projects have been launched under the auspice of OECD/IEA (Philibert, 2004); sizeable TT projects are under way under the framework of CDM (de Connick etc., 2007). In these circumstances, North is properly called “donor.” Nevertheless, many TT activities are mixed in commercial trades or are parts of foreign direct investments (FDI) (Less and McMillan, 2005). In such setting, technology is sold to developing countries by developed countries. Thus North is a “provider” (of technology) not a “donor.”
The implementation of TT includes a litany of possible projects and measures in many sectors in developing countries. The tangible TTs take place in energy supply, transportation, agriculture, and many other industries; the intangible TTs are spreads of knowledge on more effective energy usage, protecting the global environment, etc. The intangible TTs permeate from North to South through education and exchange of ideas.
Technology development and technology transfer
Technologies have been the driver of economic and social development worldwide, but not all countries have had the capacity to develop and maintain the technologies they require. Because technology is so important for achieving climate change stabilisation, the need for enhanced capabilities has made technology transfer a priority high on the international development agenda as well as in climate change negotiations.
In recent years, major changes have taken place that influence technology development. These include increased knowledge intensity, the emergence of innovation based competition through market liberalisation, globalisation of trade and growing concern for the environment. Some developing countries have been able to cope with these changes and to become integrated into the global economy because they treated technology transfer as a process of technology learning, domestic capacity building and innovation. However, the majority of developing countries have not been able to achieve technological progress.
All climate change discussions and initiatives have stressed the need for cooperation between developed and developing countries for the promotion of technology transfer. In practise, different stakeholders, whether Governments, multilateral institutions, the private sector or NGOs, have different roles in technology transfer. While Governments generally create the “enabling environment” to promote investments and technology development and transfer, it is generally the other actors that are involved in the actual transfer.
International Climate Change Agreements
The Intergovernmental Panel on Climate Change (“IPCC”)
In 1988 the World Meteorological Organization (“WMO”) and the United Nations Environment Programme (“UNEP”) jointly established the IPCC to assess available information on the science, impacts, and economics of climate change and to formulate adaptation and mitigation options.[2] The IPCC has produced a series of reports and technical papers that are standard works of reference for policymakers, scientists and other experts.[3]Notably, on February 2, 2007, the IPCC released its Fourth Assessment Report, stating “with very high confidence” that “the global average net effect of humanactivities since 1750 has been one of warming.”[4] Prepared by over 600 authors, and reviewed by representatives from 113 countries, the report is regarded as the consensus on the anthropogenic influence on climate change. The report cites increased global average air and ocean temperatures, extensive melting of glaciers and snow cover, and rising global average sea level as evidence of an “unequivocal” warming of the climate system. The main culprit of global warming is said to be the rise in GHG concentrations from human activity.[5]
The IPCC also provides scientific and technical advice to the Conference of the Parties (“COP”) to the UNFCCC and its subsidiary bodies.[6] The COP, at its first session in Berlin in 1995, requested that the IPCC elaborate on the terms under which transfer of environmentally sound technologies and know-how could take place. Subsequently, the IPCC prepared a special report addressing technology transfer in the context of all relevant UNFCCC provisions.
The UNFCCC
The UNFCCC was adopted in 1992 with the objective to stabilize GHG concentrations in the atmosphere at an environmentally safe level.[7] Member states are to promote and cooperate in the development and diffusion of technologies to reduce GHG emissions. Because the member states recognized that countries differ in their capacities to achieve the goals of the convention, they established several means, including financing and technology transfer, by which countries could cooperate to meet these goals. Unlike the subsequently adopted Kyoto Protocol, the convention did not set any binding GHG emission targets.[8]
The Kyoto Protocol
The Kyoto Protocol is an international law instrument setting stringent, legally binding emission reduction targets for six GHGs across a five-year commitment period.[9] Adopted in Kyoto, Japan in 1997, it was the first protocol to the UNFCCC.[10] So far, 182 member
parties have ratified the Kyoto Protocol.[11] The GHGs regulated by the Kyoto Protocol include CO2, methane (CH4), nitrous oxide (N2O), sulfur dioxide (SO2), sulfur hexafluoride (SF6), hydrofluorocarbons (“HFCs”), and perfluorocarbons (“PFCs”). The protocol commits developed countries to specific emission reduction targets, but there is no binding obligation for developing countries to reduce emissions or cap the growth of emissions.The group target for the thirty-seven industrial countries and the European Community is a reduction in emissions to an average of five percent against the 1990 level over the period 2008 - 2012. According to the protocol, target emission reductions can be achieved through national clean energy initiatives and through market-oriented, flexible mechanisms such as emissions trading and the Clean Development Mechanism (“CDM”). The UNFCCC has acknowledged that the collective emission targets for the first commitment period will not be achieved without the use of the flexible mechanisms, and that the currently projected reduction of eleven percent is contingent upon the implementation of additional planned policies and measures.
The TRIPS Agreement
As part of the WTO Agreement package, TRIPS requires developing countries to enact strong intellectual property right protection in exchange for greater access to developed country markets.[12] The philosophy underpinning the TRIPS Agreement is to strike a balance between the long-term social objective of providing incentives for future invention and creation, and the short-term objective of allowing the use of existing inventions and creations.[13]
The TRIPS Agreement champions strong minimum standards for the protection of intellectual property rights among the WTO members.[14] Member states are obligated to grant a twenty-year monopoly right to patent holders and not to afford preferential treatment to domestic inventors.The following standards guarantee the protection of
foreign intellectual property rights: (1) National treatment - protection of non-nationals is to be no less favorable than for nationals; (2) non-discrimination - patents are to be provided without discrimination as to place of invention, field of technology, or whether they are imported or locally produced;(3) exclusivity - exclusive patent rights are granted with respect to making, using, selling, or importing of the technology; and (4) duration - the term of patent protection is twenty years from the filing date.
Member states may enact laws and regulations to “protect public health and nutrition” and to “promote the public interest in sectors of vital importance to their socio-economic and technological development,” as long as such measures conform to the terms of the agreement. Thus, the TRIPS Agreement is intended to provide flexibility for nations to protect intellectual property rights in light of their social goals. Specific TRIPS provisions that allow some flexibility in the implementation or amendment of national patent rights are:
(1) Article 6: Exhaustion of IP rights;[15]
(2) Article 8.2: Measures to prevent abuses of IP rights and practices that affect trade and technology transfer;[16]
(3) Article 27.1: Criteria for patentability;[17]
(4) Article 27.2: Patentability exclusions;[18]
(5) Article 30: Exceptions to exclusive rights;[19]
(6) Article 31: Compulsory licensing;[20]
(7) Article 40: Control of anti-competitive practices in licenses.[21]
The Role of Technology Transfer in Addressing Climate Change
Definition of Technology Transfer
“Technology transfer” refers to the diffusion and adoption of technology and know-how between parties, typically private companies, universities, financial institutions, governments and non-governmental organizations (“NGOs”).[22]
Basically, it involves the transfer from one party, an organization or institution that developed the technology, to another that adopts, adapts, and uses it. In the international context, such transfer can be complex, involving several parties and stakeholders.The IPCC broadly defines the term “technology transfer” in the context of the UNFCCC as:
[A] broad set of processes covering the flows of know-how, experience and equipment for mitigating and adapting to climate change amongst different stakeholders such as governments, private sector entities, financial institutions, non-governmental organizations (NGOs), and research/education institutions.
While technology transfer includes transfer of patented, so-called “hard” technology, it also includes transfer of unprotected, or “soft” technology, such as know-how.[23]
Geography of Technological Innovation
Based on a study of technology hubs and on an index of technology achievement, a 2001 UNDP report classified countries into four categories: (1) leaders, (2) potential leaders, (3) dynamic adaptors, and (4) marginalized.[24]Among the leaders were countries from
Agenda 21 [25] of the UN provides the following definition for environmentally sound technologies:
Environmentally sound technologies protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products, and handle residual wastes in a more acceptable manner than the technologies for which they were substitutes.[26]
Technology Transfer and TRIPS
The objective of the TRIPS Agreement is not only to protect intellectual property rights, but also to promote the transfer and dissemination of technology to the mutual benefit of producers and users of technological knowledge.[27] Given that industrialized countries are the producers of the majority of the technological innovation, developing countries in theory should then make use of the flexibilities of the TRIPS agreement in setting up legal regimes that foster technology transfer and also encourage technology development within their own industry.
Article 66 of the TRIPS Agreement requires developed countries to create incentives for technology transfer to least developed countries, albeit without making specific reference to ESTs.[28] So far, states have retained considerable discretion in complying with the obligations of Article 66.2, which may explain the lack of concrete action. Developed countries are required to submit annual reports on their technology transfer activities.[29]
Developing Countries’ Views on IPRs and Technology Transfer
DURING the discussions about the Bali Action Plan in 2008, following the Bali UNFCCC meeting in December 2007, several developing countries raised the issue of IP
as one of the various obstacles that must be addressed in a systematic and cross-cutting manner to promote the transfer of technology. Cuba, India, Tanzania, Indonesia, China and other countries stressed the need to address IP within technology discussions.34
The issue of IPRs emerged again at the UNFCCC Bonn climate meeting in 2008 wherein developing countries called for the creation of an international mechanism under the UNFCCC aimed at operationalizing the transfer of technology to developing countries and to assist in adapting or developing technologies of their own to address climate change.
Brazil called for the establishment of a “coherent and comprehensive” instrument for technology development and transfer, i.e., a “Technology Protocol” under the UNFCCC. It also said there was a need for a technology revolution given the urgent challenges faced by developing countries. Brazil stressed the importance of acting beyond the “business as usual scenario” and the need for a “beyond the box” approach.35
Brazil also called for multilateral funding to disseminate existing technologies (including those where the patents have expired) as well as know-how to adapt, use and develop technologies, experience and equipment for mitigating and adaptation to climate change. In relation to patented technologies, Brazil proposed a public multilateral fund for purchasing licences with a view to facilitating transfer. In this context it also stressed the need to consider the use of compulsory licensing, as well as producing a declaration similar to the Doha Declaration on the TRIPS Agreement and Public Health.
In relation to new technologies, Brazil spoke about the need to foster the establishment of national and regional technology excellence centres to promote technology development, deployment and transfer, stimulate capacity building, improve access to information and establish an appropriate environment for international cooperation.
India was of the view that the full potential of technology will require mechanisms across all stages of the technology cycle, which is not just a question of transfer alone, but also of generating new technologies as well as research, development and deployment.36 According to India, in the area of new technologies, the transfer of technology and know-how should be aided by a suitable IPR regime. Private sector owners of technologies in developed countries could be compensated by their governments for the transfer and deployment of these technologies in developing countries. On accelerating technology development, India proposed joint development with IPR sharing, adding that global financing arrangements require global public procurement of IPRs to ensure the affordability of the products and services.
In relation to a wider deployment of technology, South Africa said that there should be preferential terms provided to developing countries, with the LDCs obtaining the technologies for free. Pakistan proposed the establishment of an international system or an agreement on compulsory licensing for climate-friendly technologies as well as a joint technology pool for transferring technologies to developing countries at a low cost.
At the Accra climate talks in August 2008,37 the G77 and China proposed a new technology mechanism to accelerate the development and transfer of technology and to support the effective implementation of the provisions on technology and finance in the UNFCCC. The Philippines, presenting the proposal on behalf of the G77 and China, said that the aim of the proposed mechanism was to enhance the achievement of the Convention by avoiding the lock-in effects of environmentally sound technologies and by promoting a shift to sustainable development paths. The Philippines stressed that “There is in particular an urgent need to provide access to technologies for adaptation at regional and national levels. This should be enabled by capacity building and by new and additional funding to meet the costs of integrating adaptation into the development process and of stand-alone adaptation activities”.38
The proposal sets out institutional arrangements that would be needed to enable implementation of the Convention’s technology-related obligations to support action on mitigation and adaptation. It also envisages a Multilateral Climate Technology Fund and a Technology Action Plan (TAP). The former is intended to finance enhanced action on technology development and transfer. The latter is aimed at supporting concrete actions by all countries to enhance implementation of the Convention by defining policies, actions and funding requirements for all relevant classes of technologies and by seeking to realize the full potential of technology at all stages of the technology cycle.
In relation to technologies in the public domain, the Technology Action Plan will establish a system for international cooperation to ensure that the needs of developing countries are met through the lowest-cost technology options, and to transfer know-how about how to use, maintain and adapt technologies to local conditions, thereby contributing to the development of endogenous technologies.
With regard to patented technologies, the G77 and China’s proposal envisages the TAP ensuring that privately owned technologies are available on an affordable basis, including through measures to resolve barriers posed by IPRs. Technologies that emerged through public funding, which are either wholly or partially owned, are to be made available on a reduced- or no-cost basis. In relation to future technologies, it is anticipated that the TAP will support the establishment of national and regional technology excellence centres and will reinforce North-South, South-South triangular cooperation, including in the area of joint R&D.At the UN climate meeting in Poznan in December 2008 as well, developing countries made similar points.
India said it was imperative to recognize the importance of technology as a transformation agent and initiate urgent action in this regard. It also highlighted the lessons learned from the current financial crisis, i.e., the importance of government action in direction and paradigm setting and political will. Developed countries could raise important amounts of financial resources at short notice.
South Korea said that there was a need for fundamental change in policies on IPRs and R&D. “The present regime does not integrate climate change as a goal. IPR is purely to protect the private interest of companies. How can IPR work for climate change? IPR currently is working for the profit of the private sector,” South Korea said.39 It further added that government intervention was necessary for change in public policies in this regard.
China stressed the need for change and for a new ideal institution that removes barriers and other negative market forces so as to enable technology transfer, adding that there was a need to find a way to share IPRs in technology development and research.40 China also reiterated its proposal for a Multilateral Technology Acquisition Fund to support regional and national R&D in developing countries.
In sum, the numerous statements of developing countries at the various climate meetings reflect a serious concern about IPRs as a barrier to access and a call for countries to avoid a “business-as-usual” approach to IPRs, since it is a climate emergency that the international community is facing. Whenever possible, developing countries have accentuated the need for a new partnership and cooperation under the UNFCCC to enable technology development, deployment and diffusion, including “thinking out of the box” to deal with IPRs.41In contrast, developed countries stress the importance of IPRs in climate technologies and thus the maintenance of the status quo.
Current Patenting Trends in Climate-Related Technologies
PATENTING of climate-related technologies has grown significantly especially since the mid-1990s. In addition, patent filings and grants on these technologies are largely made or held by entities in developed countries. In comparison, appli-cants from developing countries own a small share of the patents for such tech-nologies.
Energy Technologies
Automobile Pollution Control Technologies
Biofuels
Climate-Tolerant Crops
Effects of IPRs on Transfer of Climate Technologies
This trend will likely intensify as climate change concerns further heighten, funding for R&D increases, and governments adopt legislative and regulatory frameworks for a greener economy. In addition, most of the climate-related technology is held by industrialized countries.Such a trend raises fundamental questions for developing countries, in particular, whether developing countries will be hampered in their ability to gain, on reasonable terms, timely access to mitigation and adaptation technologies as well as associated know-how for purposes of R&D, especially to adapt these technologies to suit local conditions and for production.
Where technologies are in the public domain (i.e., not patent-protected), the key supply-side issues are the costs of technology and the transfer of know-how to use, maintain and adapt the technology to local conditions for developing countries. For developing countries that have the capacity or ambition, there should be transfer of know-how on how to produce these technologies instead of simply importing the equipment. In such a scenario it is important to consider mechanisms to facilitate the lowest prices being offered to developing countries, as well as to finance the purchase of technology and the R&D that is needed to adapt and manufacture the technology. It is also important to consider mechanisms to make available the know-how (which may in some circumstances be protected as trade secrets [30]) that is needed.
The situation is more complex when technologies are patented. Patents grant exclusive rights to the patent holder, which also means that the inventor may exclude third parties from utilizing, exploiting or commercializing the protected invention in the countries where the invention is patented. Having exclusive rights enables the patent holder to have a monopoly over the market and dictate the price it charges and the basis on which it will license the use of the invention. The patent holder may impose unreasonable conditions for use of the protected technologies or simply refuse to license the product to any other entity for fear of competition from the licensee.
The multinational pharmaceutical industry has also been aggressive in enforcing its patent rights, as well as reluctant to provide licences on reasonable terms to entities in developing countries, even where the issue was one of life and death of patients in developing countries. For example, in 2001 the South African government introduced measures to enable imports of cheap, generic, life-prolonging, HIV-fighting medications from countries such as Brazil and India. However, it found itself having to fight 39 pharmaceutical companies that brought an action against the government on the grounds that the measures were unconstitutional. The lawsuit was later dropped following strong protests from civil society worldwide. In 2002, Hazel Tau, working with the Treatment
Action Campaign (TAC), filed a complaint with South Africa’s Competition Commission against the multinational drug companies GlaxoSmithKline (GSK) and Boehringer Ingelheim (BI). GSK and BI respectively offered 30% and 15% royalty for licences to produce cheaper versions of the patented product. The Competition Commission ruled against the companies inter alia on the grounds of having denied a competitor access to an essential facility as well as excessive pricing. In a settlement that followed, it was agreed inter alia that voluntary licences would be granted, export of antiretroviral HIV/ AIDS drugs (ARVs) to sub-Saharan African countries as well as import of cheaper drugs were permitted, and royalties were reduced to a maximum of 5% of the net sales of the relevant ARVs.[31]
The pharmaceutical industry’s approach is but one example of the oft-used strategies of the patent holder. The Intergovernmental Panel on Climate Change (IPCC) (2000) itself notes that: “Several studies have been done that verify this strategy of using intellectual property rights as a market advantage and as a strategy to control markets as well as dominate innovation within industrial sectors.” The same report elaborates on how scholars had noted problems at company level, and how companies have prevented the introduction of new technologies in the marketplace in order to advance and retain their own technological advantages. For example, in 1994 when Korea was in the process of industrialization, technologies introduced by the Japanese and the US came with a variety of restrictions, such as prohibition of consignment to a third party and sharing of improved technologies, as well as export prohibition and denial of permission to the licensee to deal in competitive products or technologies.[32]
IPRs: A Barrier to Climate-Friendly Technologies
There are examples of developing countries and their firms being hampered from adopting climate-friendly technologies or products due to the existence of patents on these products, and unreasonable demands made by the patent holders on companies in developing countries that requested a voluntary licence from the patent holder.
Watal (1998), in a study on the effect of IPRs on technology transfer in India in the context of the Montreal Protocol to protect the Earth’s ozone layer, provides two specific cases of the acute problems faced by local firms in their attempts to access technology from suppliers holding patents.
One case concerned an Indian company seeking access to HFC-134a (a substitute for chlorofluorocarbon (CFC), an ozone-depleting substance (ODS) used in refrigerators and air-conditioners). The patent holder, a transnational company producing HFC-134a, quoted a high price of $25 million for access to the technology. The supplier also proposed two alternatives to the sale, namely, that the Indian firm allows the supplier to take majority ownership in a joint venture to be set up, or that the Indian firm agrees to export restrictions on HFC-134a produced in India. Both options were unacceptable to the Indian company. The quoted price was also unrealistically high as the Indian company estimated that the technology fee should at most have been between $2 and $8 million.
Indian producers of CFCs were very keen to acquire the technology for making HFC-134a for domestic and export sale, as most Indian refrigerator manufacturers wished to convert to using HFC-134a. However, their efforts to access the technology were unsuccessful. Only a few companies in the developed countries control the patents and trade secrets related to HFC-134a, and thus developing countries have to either pay high royalty fees to produce it locally or lose international markets.
The second case is that of the ozone-depleting substance halon, used in fire extinguishers and many other products. The substitute for this ODS is HFC-227ea (commercially known as FM 200). FM 200 is covered by a method and composition patent filed by a US company in 1995. It was filed in several countries including China, Korea and Russia (but not in India, which, up to the time of the study, did not allow such patents).
Watal (1998) concluded that: “Efforts at acquiring substitute technology have not been successful as the technologies are covered by IPRs and are inaccessible either on account of the high price quoted by the technology suppliers and/or due to the conditions laid down by the suppliers. This would require domestically owned firms to give up their majority equity holding through joint ventures or to agree to export restrictions in order to gain access to the alternative technology.”55
Several other recent studies that have analyzed specific sectors of climate-related technology have also pointed out that protection of IPRs can be a barrier to transfer of technology. The IP holder can prevent access to and use of the protected technology and associated know-how. This would prevent other firms from imitating the technology and/or innovating on the basis of new technologies.
Ockwell (2008) reviewed three studies on the issue of IPRs in the context of low-carbon-technology transfer and concluded: “Developing country firms were generally not observed to have access to the most cutting edge technologies within the sectors examined.”
Barton (2007) looked at three sectors, i.e., solar photovoltaic, biofuels and wind, largely in the context of the bigger emerging economies of Brazil, China and India. Despite the overall optimistic tone of Barton’s analysis, the study does not rule out the possibility of IPRs being a barrier for developing countries in the sectors examined. In fact, Barton raises various concerns regarding “serious plausible patent issues … likely to arise from the new technologies”; the risk of broad patents which may “complicate the development of … new more efficient or less expensive technologies”, and the issue of anti-competitive practices if the “relative small number of suppliers … cooperate in a way that would violate competition-law principles”.[33]
It is also worth mentioning Barton’s observations on other technologies that may be needed to effectively operationalize climate technologies, especially wind and photovoltaic technologies. For example, in the photovoltaic and wind sector, technology such as “inverters”[34] may be needed to connect to the electricity grid. Such technology is continuously evolving, pertains to a more concentrated industry and is an important area of patent activity.[35] Batteries are another technology related to effective operation of photovoltaic panels when the sun is not shining.[36]
On Barton’s study, Ockwell (2008) states: “It is notable that for all of the case studies he examines, uncertainty is expressed as to the likelihood of developing country firms gaining access to the most advanced technologies in these industries.”
In the case of photovoltaic technology, Barton suggests that access to the newer thin-film technologies (which are subject to much more extensive patenting than the older silicon-slice technology) is likely to be difficult. Similarly patent holders of new methods, enzymes or microorganisms important in the case of biofuels may be hesitant to make these technologies available to developing-country firms.[37] Barton also identifies wind technologies as an area where existing industrial leaders are hesitant to share their leading technology for fear of creating competitors.
On wind technologies, Ockwell (2008) argues that only the smaller companies which are likely to gain more from licensing and lose less from competition are willing to sell licences for use of their technologies. In support, Ockwell refers to a study by Lewis on how leading wind technology manufacturers in India (Suzlon) and China (Goldwind) acquired access to wind technology by licence purchases from second-tier developed-country firms. Lewis argued that it was a disincentive for leading companies to license to potential developing-country competitors that have cheaper labour and materials available, and that while the technology received was not necessarily inferior, it had less operational experience.72
Importantly, Ockwell (2008) observes that “the key to ensuring long-term, sustained uptake of low carbon technologies in developing countries is the development of low carbon technological capacity within these economies” and this “relies on access to the knowledge that underpins cutting-edge technological developments, as well as exposure to the tacit knowledge that is often integral to developing the absorptive capacity necessary to work with emerging technologies”. Ockwell argues that for this to happen, access to IPRs is important as it will enable entities in developing countries to understand and work with or imitate the knowledge that underlies new low-carbon technologies.
Ockwell also points out that if the intention is to assimilate new technologies and hence increase the technological capacity of developing countries, then IPRs are likely to be used by developed-country IP holders to prohibit access. IPR issues are likely to be less substantial if the idea is to simply sell the technology without risk of local competition. In both scenarios cost may still be a barrier to access.
There are several arguments that point to a favourable impact of the patent system on technology transfer. However, often these arguments fail to take into account the realities and limitations of developing countries.
One argument is that the disclosure of patent information can serve as a major boost to technology transfer by avoiding duplicative R&D and enabling technological leapfrogging. Disclosure of the claimed invention’s specifications in the patent application is a provision of Article 29.1 of the TRIPS Agreement. According to the Article, Members “shall” require disclosure of the invention “in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art”. Members “may” also require the applicant to “indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application”.
There are several problems with this argument: (i) patent agents usually avoid including information that would enable competitors to invent around or exploit the invention on patent expiry; (ii) the applicant also often omits information that would allow the reproduction of all embodiments, when several embodiments of an invention are claimed; (iii) patent disclosure, while making known information about the invention, does not allow exploitation of the invention until patent expiry or unless consent of the patent holder is obtained or measures (e.g., compulsory licensing) are taken as allowed by the TRIPS Agreement to override the patent barrier; (iv) where inventions pertain to microorganisms, access to the relevant technology only becomes possible through access to the biological material, which may only be allowed for experimental and not for commercial purposes; and (v) technicians in developing countries often are without experience in a particular field, thus making it difficult to work the disclosed patent specifications. In addition, skills and know-how may be needed to work the disclosed patent specification. The latter is seldom included in the patent application.
Thus, Correa (2005) points out that “the informative effects of patent grants cannot be deemed a substitute for transfer of technology mechanisms through which companies in developing countries actually gain access to proven and commercially viable technologies as well as associated know-how”.
In addition, most developing countries are at the stage of “initiation” and “internalization” of technology, wherein they would have to innovate using existing inventions through reverse engineering while making minor adaptations, rather than “leapfrogging” over known technology. Thus one should be careful to not overstate the benefits of patent information in the context of developing countries which are at different levels of development and have different technological capability and needs, which further vary sector by sector.
It is also argued that there are pre-grant and post-grant mechanisms within the patent system that can be used to ensure that the resulting effect of the patent system benefits the public. Pre-grant mechanisms referred to are: (i) ensuring that patents are only granted for technologies that are novel, involve an inventive step and are industrially applicable, thus avoiding frivolous patents; and (ii) excluding technologies that would cause damage to the environment. Post-grant mechanisms referred to include: (i) exceptions and limitations to patent rights; and (ii) interventions such as compulsory licences and remedies for anti-competitive practices.
While the TRIPS Agreement does provide several flexibilities with regard to pre-grant and post-grant mechanisms that can be adopted to manage the exclusive rights given to the patent holder for the benefit of the public, there are significant difficulties in terms of applying these flexibilities in practice in the context of developing countries. For example, in most developing countries, including emerging economies, there is a lack of patent examination capacity, thus making it difficult to use the pre-grant mechanisms. In relation to post-grant mechanisms, developing countries often face pressures from multinational companies, as well as developed countries, when attempting to use such mechanisms (for further elaboration, see below). Furthermore, in recent years a number of North-South trade agreements contain provisions that limit the use of pre- and post-grant flexibilities.
Another argument is that most of the technologies are in the public domain (as the patent applicant is not interested in seeking patent protection) in most developing countries and thus there should not be any cause for concern. This argument is problematic because the technology is most likely to be patented in countries that have the technological capacity to reverse engineer and innovate on the basis of existing technologies and pose some risk of competition. Thus while it may be true that patent applicants may not bother to file and maintain an application in all developing countries, particularly the poorest countries, patent protection will almost certainly be sought in developing countries where the local industries are likely to pose a risk of competition. In addition, in many developing countries it is difficult to ascertain the patent status of technologies, which essentially means that firms in developing countries may be bullied into abandoning the use of a technology simply by a mere allegation by the patent holder of a patent being held in that country.
The relationship between strengthened patent protection and innovation is also the subject of much debate. There is now evidence that the impact of the patent system as an incentive for innovation depends on many conditions such as significant market, sufficient capital, qualified personnel at the firm level and innovation-oriented entrepreneurs, as well as a solid scientific base open to collaboration with industry. There is also evidence that even when such conditions are met, IP may not promote innovation. For instance, a review of 23 empirical studies found weak or no evidence that strengthening patent protection increased innovation, only the number of patents applied for.[38] IP protection may be neutral to innovation even in high-tech sectors, particularly where the product cycle is so short that “if you just imitate others’ ideas, your products will always be outdated and obsolete”.[39]
In the context of climate technologies, it is apparent from the section below on “IPRs and Publicly Funded Technologies” that patent protection is not a sufficient condition for innovation. Governments of developed countries have to provide substantial subsidies for R&D. Thus many other types of incentives can be considered that would still incentivize the private sector to make the investments required without the exclusivity of the patent system. These could include additional funding for R&D, tax incentives, monetary prizes for outstanding R&D outcomes, regulation, etc.
Innovative options to accelerate invention and technology transfer
1- The public domain should be made a central element of any national, European or international strategy to fight global climate change and promote green technologies. As such, public domain resources should not be privatized. They should be enriched by results from publicly funded research and should be made easily accessible (through open data base and other digital tools).
2- The European Commission (EC) could consider competition law based solutions to promote the emergence of non-exclusive licenses.
3- In the effort to make the public domain resources accessible, the EC and Member States should support initiatives2 aimed at gathering innovations in the form of patents which have either expired, are no longer maintained (meaning that the fees to keep the patents have lapsed), are disallowed or are unprotected in most, if not all, relevant markets and which make them publicly accessible.
4- The EC should support platforms for the dissemination of technological information on intellectual property protected technologies, encourage clearing houses between users and providers of information and technologies, as well as provide measures and benchmarks to facilitate licensing of clean energy technologies. In cases where the EU is implementing energy or climate change mitigation projects in developing countries with benefits for the EU, the project should include mandatory technology transfer.
5- Publicly funded prizes and/or prize funds for climate change technology should be established at European level targeting specific and required innovation breakthroughs, with clear licensing conditions on proceeds attached to the fund.3 Prizes not restricted to EU firms or individuals and that include non-exclusive licensing schemes as a condition of the reward represent interesting options to stimulate research and innovation.
6- Publicly funded research should be associated with conditions on non-exclusive licensing and/or open publishing of results. The EC is currently conducting a pilot initiative on open access to peer reviewed research articles. Horizon 2020 and other EU programs should move further in this direction, require compulsory open publishing and encourage open innovation and open source.
7- Non-exclusive licensing agreements5 issued by universities or public research institutions should be fostered with the objective being to facilitate access to research tools and technological transfer and to include developing countries into research efforts.
8- The EC should propose a mechanism for managing and reducing intellectual property barriers, such as refusals to license, unreasonably high licensing costs or restrictive licensing practices.
9- The EC should consider the stetting up of patent pools in order to allow the sharing of patented scientific data and increase collaborative efforts and R&D cooperation on specific technological needs.6 This mechanism could be particularly suitable for technologies that are both complex and expensive as it could allow avoidance of patent thicket situations and liberate research, while also making it possible to license partners in developing countries to facilitate broad access to technologies without endangering the financial returns to the markets of rich countries.
10- Equally important to these measures is the right of developing countries to use the full TRIPS flexibilities, including compulsory licensing, by which a government allows a third party to produce, import or sell a patented product or process without the consent of the right holder, in exchange for the payment of a royalty. This option may be particularly useful in the context of patent thicket blocking incremental research, or for expensive inventions when important public interests are at stake. In no case should the EU restrain the scope or the use of the TRIPS flexibilities through bi -and plurilateral trade or investment agreements with developing countries.
11- A significant barrier for know-how transfer and local adoption of environmentally friendly technologies is the inability of investment recipient countries hosting clean energy technologies from entities in European countries to impose conditions on technology transfer on these companies that would benefit adoption and diffusion of these technologies. Enabling the host country to impose contractual obligations on investors through adequate adjustments to current EU and EU members trade and investment agreements would help disseminate CET technological information and operation skills to third world countries.
12- A more drastic possibility to ensure the diffusion of new technologies in poor countries could be to exclude climate change technologies from patenting and revoke existing IPR protections on such technologies in Least Developed Countries (LDCs). We encourage full discussion and consideration of this option.
13- Strong intellectual property rights protection is often not the only barrier to technology transfer for LDCs, since they often also lack the academic and economic capacities that would allow them to make use of available patents. To help tackle this problem, EU development policies need to address the issue of the absorption capacity of the countries concerned and of brain-drain of researchers.
Conclusions
IN light of the imminent challenges posed by climate change and the patenting trend (with ownership of technology focused in industrialized nations, a trend likely to continue more robustly in coming years), there is a need for action on the part of governments negotiating at the UNFCCC to agree to measures that overcome the IP barrier and facilitate transfer of technology, as well as associated skills and know-how.
There are several flexibilities available within the TRIPS Agreement such as compulsory licences, exceptions to patent rights, regulating voluntary licences, and strict application of patentability criteria, which may enable access to technologies to a certain degree, but the use of such measures is limited to specific circumstances. In addition, as mentioned above, in the context of developing countries, these measures are usually more difficult to put in practice due to the pressure factor and lack of capacity.
Options such as allowing developing countries to exclude critical sectors from patenting, as well as a “Global Technology Pool for Climate Change”, need serious consideration as these options will provide certainty and predictability in accessing technologies and further enable the much-needed R&D for local adaptation and competition that would further reduce the cost of the technologies. Both options also have to include cooperation to share know-how in relation to the critical technologies for combating climate change. In addition, modalities for access to publicly funded technologies by developing-country firms need to be explored.
Climate change is truly a serious crisis threatening human well-being and there are only a few years left to start very strong action. Thus, the situation is similar to emergency war-like conditions. In such conditions, individual commercial interests such as patents and other intellectual property rights are suspended or managed in such a manner that there can be concerted action in the most effective way to face the common threat.
If developed countries treat intellectual property rights as something sacrosanct and to be upheld at all costs, it would signal that climate change is not a serious threat for them, as commercial profits for a few are more important on the scale of values and priorities than the human lives that are at stake due to global warming. However, technology transfer to developing countries to enable them to combat climate change should be the higher priority. Developed countries should also not treat climate technology as a new source of monopoly profits, as this would damage the ability of developing countries to phase in existing or new climate-friendly technologies for both mitigation and adaptation.
Bibliography
Barton, John H. (2007). “Intellectual Property and Access to Clean Energy Technologies in Developing Countries: An Analysis of Solar Photovoltaic, Biofuel and Wind Technologies”. ICTSD Trade and Sustainable Energy Series Issue Paper No. 2, International Centre for Trade and Sustainable Development, Geneva.
Bell, M. (1990). “Continuing Industrialization, Climate Change and International
Technology Transfer”. University of Sussex, Brighton.
Boldrin, Michele and David Levine (2007). Against Intellectual Monopoly. http:/ /www.dklevine.com/general/intellectual/againstnew.htm.
Centre for International Studies, MIT and J. Watson (1999). “The transfer of clean coal technologies to China: learning from experience”. Second International Symposium on Clean Coal Technology, Beijing.
Chaudhuri, Sudip (2005). The WTO and India’s Pharmaceuticals Industry. Patent Protection, TRIPS and Developing Countries. Oxford University Press,New Delhi.
CIPR (2001). Integrating Intellectual Property Rights and Development Policy. Commission on Intellectual Property Rights, http://www.iprcommission.org/graphic/documents/final_report.htm.
Correa, Carlos (2000). Intellectual Property Rights, the WTO and Developing Countries. Third World Network, Penang.
Correa, Carlos (2005). “Can the TRIPS Agreement foster technology transfer to developing countries?”. In International Public Goods and Transfer of Technology: Under a Globalized Intellectual Property Regime, edited by KeithE. Maskus and Jerome H. Reichman, Cambridge University Press, Cambridge.
Correa, Carlos (2007). “Intellectual Property and Competition Law: Exploration of Some Issues of Relevance to Developing Countries”. ICTSD IPRs and Sustainable Development Programme Issue Paper No. 21, International Centre for Trade and Sustainable Development, Geneva.
Dartmouth (2007). Technology Transfer in the Era of Globalization. Fiscal Year 2007 Annual Report, Dartmouth College Technology Transfer Office.
ETC Group (2008). “Patenting the ‘Climate Genes’… And Capturing the Climate
Agenda”. Communiqué, Issue No. 99.
European Commission (2004). “European research spending for renewable energy sources”.
European Patent Office (2007). “Scenarios for the Future”. http://www.epo.org/ topics/patent-system/scenarios-for-the-future.html.
Evans, P C. (1999). “Cleaner Coal Combustion in China: The Role of International Aid and Export Credit Agencies for Energy Development and Environmental Protection, 1998-1997”. Centre for International Studies, MIT.
Gerster, Richard (2001). “Patents and Development: Lessons Learnt from the Economic History of Switzerland”. Intellectual Property Rights Series No. 4, Third World Network, Penang.
India, Government (2000). “Proposals on intellectual property rights issues”. Paper submitted to the WTO, 12 July (IP/C/W/195).
IPCC (2000). Methodological and Technological Issues in Technology Transfer. Intergovernmental Panel on Climate Change.
Kamis, Ronald and Mandar Joshi (2008). “Biofuel patents are booming”.
Khor, Martin (2002). Intellectual Property, Biodiversity and Sustainable Development: Resolving the Difficult Issues. Zed Books, London and NewYork; Third World Network, Penang.
Khor, Martin (2008a). “IPRs, Technology Transfer and Climate Change”. Third World Network, Penang.
Kumar, Nagesh (2002). “Intellectual Property Rights, Technology and Economic Development: Experiences of Asian Countries”. Study paper prepared for the Commission on Intellectual Property Rights.
Lewis, J. (2007). “Technology Acquisition and Innovation in the Developing World:
Wind Turbine Development in China and India”. Studies in Comparative
International Development, 42: 208-232.
Love, James (2007). “Recent examples of the use of compulsory licenses on patents”. KEI Research Note 2007:2, Knowledge Ecology International.
Love, James (2008). “Patents, Prizes and Climate Change”. Presentation at the Greens/EFA workshop on Intellectual Property Rights and Green Energy Technologies, European Parliament, Brussels.
http://unfccc.int/ttclear/pdf/EGTT/11%20Bonn%202005/ IPRandOtherIssuesAssociatedwithPublicly-FundedTech.pdf.
Shashikant, Sangeeta (2006). “Speakers warn against patent harmonization at WIPO forum”. South-North Development Monitor (SUNS), No. 5978, 3 March.
Shashikant, Sangeeta (2008). “Meeting on patent law, as Secretariat issues report”.
South-North Development Monitor (SUNS), No. 6501, 23 June.
WIPO (2008 ). “World Patent Report: A Statistical Review”. World Intellectual
Property Organization, Geneva.
WIPO (2008 ). “Climate Change and the Intellectual Property System: What Challenges, What Options, What Solutions? – A Summary of the Issues”. Informal consultation draft, World Intellectual Property Organization, Geneva.
UNFCCC Secretariat, 2006. Synthesis report on technology needs identified by Parties not included in Annex
I to the Convention. UNFCCC Subsidiary Body for Scientific and Technological Advice.
[2] IPCC REPORT, supra note 4, at v.
[3] IPCC REPORT, supra note 4, at v. The IPCC provides Assessment Reports at regular intervals on the state of knowledge on climate change. See, e.g., infra note 17. Supplementary to the Assessment Reports and often at the request of other environmental conventions, such as the UNFCCC, the IPCC prepares Special Reports and Technical Papers, which focus on a particular topic (e.g. technology transfer). See IPCC, IPCC Reports, (2007) archived at http://www.webcitation.org/5at2PGdYr. Technical Papers are based on material already presented in the Assessment Reports or Special Reports. Id.
[4] IPCC, Summary for Policymakers, in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (S. Solomon, D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor, & H.L. Miller eds., Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA) (2007) archived at http://www.webcitation.org/5at2VTDAM.
[5] (“Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.”).
[6] See IPCC REPORT, supra note 4, at vii. See also UNFCCC, Report of the Subsidiary Body for Scientific and Technological Advice on its twenty-sixth session, held at Bonn from 7 to 18 May 2007 (stating the IPCC prepared, at the request of the UNFCCC Subsidiary Body of Scientific and Technological Advice, the 2006 IPCC Guidelines for National Greenhouse Gas Inventories).
[7] United Nations Framework Convention on Climate Change, May 9, 1992, S. TREATY DOC. NO. 102-38, 1771 U.N.T.S. 107 [hereinafter UNFCCC TREATY] (entered into force Mar. 21, 1994), archived at http://www.webcitation.org/5at2iBAl5. The convention defined GHGs as “those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation.” Id.art. 1.5.
[8] UNFCCC, Fact Sheet: The Kyoto Protocol, 1 [hereinafter Kyoto Facts] archived at http://www.webcitation.org/5at2oLGp4.
[9] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 [hereinafter Kyoto Protocol], archived at http://www.webcitation.org/5at2y1ixN (following ratification by Russia, the Kyoto Protocol entered into force on 16 February 2005).
[10] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 [hereinafter Kyoto Protocol], archived at http://www.webcitation.org/5at2y1ixN (following ratification by Russia, the Kyoto Protocol entered into force on 16 February 2005).
[11] UNFCCC, Kyoto Protocol Status of Ratification, archived at http://www.webcitation.org/5at33npAB. As of 13 May 2008, 181 countries and one regional economic integration organization (the EEC) have deposited instruments of ratification, accession, approval or acceptance.
[12] Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 320 (1999), 1869 U.N.T.S. 299 [hereinafter TRIPS Agreement] archived at http://www.webcitation.org/5at3Jbuk4.
[13] WTO Secretariat, Fact Sheet: TRIPS and pharmaceutical patents (2006) [hereinafter WTO Fact Sheet] archived at http://www.webcitation.org/5at3OJ5By.
[14] See Cameron J. Hutchison, Does TRIPS Facilitate or Impede Climate Change Technology Transfer into Developing Countries?, 3 U. OTTAWAL. & TECH. J. 517, 524 (2006).
[15] See WTO Fact Sheet, supra note 15, at 5. Countries are free to allow exhaustion of intellectual property rights upon first sale, thus if a country allows parallel imports, and another country does not, that country cannot raise this issue in a dispute in the WTO.
[16] See TRIPS Agreement, supra note 15, art. 8.2 (“Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.”).
[17] See TRIPS Agreement, supra note 15, art. 27.1 (providing that patents may be granted to products and processes that are “new, involve an inventive step and are capable of industrial application” without setting thresholds for these criteria).
[18] See TRIPS Agreement, supra note 15, art. 27.2 (“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”) (emphasis added).
[19] See TRIPS Agreement, supra note 15, art. 30. Governments can make limited exceptions to patent rights, e.g., for research purposes or to use a patented drug to obtain regulatory approval, provided, among other things, that the “exceptions do not unreasonably conflict with the normal exploitation of the patent.” Id. See also WTO Fact Sheet, supra note 17, at 3.
[20] Part II.B.b (discussing the Doha Declaration and compulsory licensing).
[21] See TRIPS Agreement, supra note 15, art. 40. Governments can enact legislation to prevent rights holders from abusing intellectual property rights through licensing practices that restrain competition.
[22] James Shepard, The Future of Technology Transfer Under Multilateral Environmental Agreements, 37 ELR 10547, 10548 (2007).
[23] See Hutchison, supra note 15, at 520 (distinguishing between patented “hard” technologies, such as equipment and products to control, reduce or prevent anthropogenic emissions of GHG in the energy, transportation, and industry sectors; and “soft” technologies, such capacity building, information networks, training and research)
[24] UNITED NATIONS DEVELOPMENT PROGRAMME [“UNDP”], Human Development Report, Making New Technologies Work for Human Development 45 (2001), archived at http://www.webcitation.org/5at3VEC5E [hereinafter Human Development Report]. The technology achievement index is composed of information gathered from various sources in these four categories: (1) creation of technology (number of patents granted, receipt of royalties and license fees), (2) diffusion of recent innovation (number of internet hosts, technology exports), (3) diffusion of old innovation (number of telephones, electricity consumption) and (4) human skills (mean years of schooling, gross tertiary science enrollment). Id. at 46-47. The data on technology hubs were culled from a 2000 study by WIRED magazine. Id.at 45. See Jennifer Hillner, Venture Capitals, WIRED, July 2000 archived at http://www.webcitation.org/5at3XcV80. Hillner interviewed representatives from local industry and media to identify technological hot spots and rated forty-six locations based on four criteria:
“the ability of area universities and research facilities to train skilled workers or develop new technologies; the presence of established companies and multinationals to provide expertise and economic stability; the population's entrepreneurial drive to start new ventures; and the availability of venture capital to ensure that the ideas make it to market.”
[25] See UN Department of Economic and Social Affairs, Division for Sustainable Development, Documents, archived at http://www.webcitation.org/5at3iTet3. Agenda 21 was adopted at the UN Conference on Environment and Development held in Rio de Janeiro in 1992.
[26] Agenda 21, Chapter 34, Transfer of Environmentally Sound Technology, Cooperation and Capacity-Building, 34.1 archived at http://www.webcitation.org/5at3jiGC2.
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.
[28] Article 66 of the TRIPS agreement provides in relevant part:
Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.
[29] See Council for Trade-Related Aspects of Intellectual Property Rights, Decision: Implementation of Article 66.2 of the TRIPS Agreement, IP/C/28 (Feb. 20, 2003) (stating that developed countries are to submit annual reports on their technology transfer activities under Article 66.2).
[30] The TRIPS Agreement makes no reference to “trade secrets” or “know-how”. However, it does recognize “undisclosed information” as one of the categories of “intellectual property” (see Article 1.2 of the TRIPS Agreement) and provides for “protection of undisclosed information” in Article 39. The term “undisclosed information” is considered as referring to “trade secrets” or “know-how”. The obligation established under Article 39.1 is limited to the protection of undisclosed information against unfair competition as provided in Article 10bis of the Paris Convention. The discipline of unfair competition provides a remedy against acts of competition contrary to honest business practices, such as confusing or misleading the customer and discrediting the competitor. Unfair competition rules supplement in some cases the protection of industrial property rights, such as patents and trademarks. Unlike the latter, however, the protection against unfair competition does not entail the granting of exclusive rights. National laws must only provide for remedies to be applied in cases where dishonest practices have occurred.
[31] Love (2008).
[32] IPCC (2000).
[33] Barton (2007), p. 20
[34] For converting direct current to alternating current and could also include mechanisms to ensure that solar panels operate under efficient conditions and satisfy the requirements for connecting to the grid.
[35] Barton (2007), pp. 11 and 15
[36] Barton (2007), p. 9
[37] Ockwell (2008).
[38] Boldrin and Levine (2007)
[39] Virén and Malkamäki (2002)