TWN Info Service on Intellectual Property Issues (June09/09)
15 June 2009
Third World Network


Please find below a report on proposals put forward by developing countries on measures to address intellectual property under the UN Framework Convention on Climate Change (UNFCCC).

The Group of 77 and China as well as several developing countries in their individual capacity have made proposals calling for climate-friendly technologies to be excluded from patenting.

The proposals were made during the negotiations on climate change going on in Bonn.

Regards
Sangeeta Shashikant
Third World Network
email: sangeeta@thirdworldnetwork.net 

No patents on climate-friendly technologies, says South
SUNS #6718 Friday 12 June 2009

Bonn, 11 Jun (Sangeeta Shashikant) -- The Group of 77 and China as well as several developing countries in their individual capacity have made proposals calling for climate-friendly technologies to be excluded from patenting.

In their text submitted Wednesday, the G77 and China proposed that "All necessary steps shall be immediately taken in all relevant fora to mandatorily exclude from patenting climate-friendly technologies held by Annex II countries which can be used to adapt to or mitigate climate change". [Annex II of the Convention contains a list of 24 developed countries with financial obligations].

The "no patents" proposal is one of several other ambitious proposals put forward by developing countries to address the intellectual property barrier to the transfer of and access to environmentally-sound technologies for climate mitigation and adaptation (ESTs).

The proposals were submitted on "Enhanced action on development and transfer of technology", one of the five building blocks of the Bali Action Plan (BAP) adopted by Parties to the UN Framework Convention on Climate Change (UNFCCC) in December 2007. These proposals were added during the discussion of the text of the Chair of the Ad-hoc Working Group on Long-Term Co-operative Action (AWG-LCA) in the informal plenary on 10 June.
The work of the AWG-LCA is to implement the Bali Action Plan in order to enable the full, effective and sustained implementation of the UNFCCC through long-term cooperative action now, up to and beyond 2012.

Developing countries also called for: (i) the adoption of a Declaration on IPRs and Environmentally Sound Technologies in relevant fora; (ii) the use to the full flexibilities contained in the TRIPS Agreement including compulsory licensing to access intellectual property protected technologies; (iii) steps to ensure sharing of publicly funded technologies and related know-how; and (iv) the creation of a "Global Technology Pool for Climate Change" that ensures access to technologies including on royalty free terms.

The call for bold action to deal with IPRs, an obstacle to the transfer of and access to ESTs, follows heated debate that took place last Saturday, largely along North-South lines.

Developed countries, in particular Japan, Canada, Australia, Switzerland and the US insisted on strong IPR regimes, even opposing the use of compulsory licensing, which is allowed under the TRIPS Agreement (See SUNS #6716 dated 10 June 2009). The developed countries also questioned the need for new institutional arrangements, in particular, the technology mechanism that has been proposed by the G77 and China.

On the other hand, developing countries had argued that there was a need for patent exclusion on climate technologies, given the need for a global and systemic response to address the global challenge of climate change, adding that the current TRIPS flexibilities were inadequate.

The Philippines proposed that: "All necessary steps shall be immediately taken in all relevant fora to mandatorily exclude from patenting environmentally sound technologies which can be used to adapt to or mitigate climate change".

The Philippines also proposed that: "Biological resources including microorganisms, plant and animal species and varieties, and parts thereof that are used for adaptation and mitigation of climate change shall not be patented".

Bolivia proposed that Parties should "take all steps necessary in all for a to mandatorily exclude from patenting in developing countries environmentally sound technologies to adapt to or mitigate climate change, including those developed through funding by governments or international agencies" and "to revoke in developing countries all existing patents on essential/urgent environmentally sound technologies to adapt to or mitigate climate change".

It also proposed text that "nothing in any international agreement on intellectual property shall be interpreted or implemented in a manner that limits or prevents any Party from taking any measures to address adaptation or mitigation of climate change, in particular the development and transfer of, and access to technologies".
Other developing countries have also made proposals reflecting a similar sentiment as follows:

"[[LDCs][Countries vulnerable to the adverse effects of climate change] should be exempted from patent protection of climate-related technologies for adaptation and mitigation, as required for capacity building and development needs.

[Genetic resources, including germplasms of plant and animal species and varieties that are essential for adaptation in agriculture, shall not be patented by multinational or any other corporations.]]]"

Aside from the "no patents" proposal, the Chair's text as well as the various submissions of countries during the technology debate also contains other proposals to address the IPR barrier.

Some of the proposals envisage bolder actions to overcome the IPR obstacle, such as "Limited/reduced time for patents on climate friendly technologies".

The Philippines proposed language to improve the Chair's text that supported the use of TRIPS flexibilities as well as to ensure the sharing of publicly-funded technologies and related know-how. It proposed the following:

"Specific measures shall be taken and mechanisms developed to remove existing barriers to development and transfer of technologies from developed to developing country Parties arising from intellectual property rights (IPR) protection, including:

(i) to use to the full flexibilities contained in the Trade Related Aspects of Intellectual Property Rights (TRIPS) including Compulsory licensing to access intellectual property protected technologies;

(ii) take steps to ensure sharing of publicly funded technologies and related know-how including by making the technologies available in the public domain at an affordable price and on terms and conditions that promotes access for developing countries".

The Philippines also proposed the "adoption of a Declaration on IPRs and Environmentally Sound Technologies in relevant fora to inter alia reaffirm the flexibilities in the TRIPS Agreement and enhance the enabling environment for implementing these flexibilities".

The Chair's text had "Compulsory licensing for specific patented technologies" as a specific measure to remove IPR protection barriers to technology development and transfer.
 
The G77 and China proposed the "creation of a Global Technology Pool for Climate Change' that promotes and ensures access to intellectual property protected technologies and associated know-how to developing countries including on non-exclusive royalty-free terms in order to provide better information service and reduce transaction costs".

The Philippines made a similar proposal in its submission including an additional paragraph that states: "All necessary measures and actions shall be immediately taken to facilitate technology pools that include associated trade secrets and know-how on environmentally sound technologies and enable them to be accessed, including on royalty-free terms for developing countries".

The technology pool proposal is similar to a proposal in Bolivia's submission. The Bolivian proposal also speaks of immediately creating and providing "new and additional financing that is adequate, predictable and sustainable for joint technology excellence centres in developing countries, to enable entities in these countries to do research and development especially on adaptation as well as mitigation technologies" and "to ensure that any technology transfer to developing countries is appropriate for the developing countries concerned in order to enable its effective utilization".

(The immediacy is based on the mandate of the AWG-LCA to enhance implementation of the Convention "now, up to and beyond 2012".)

The Chair's text also contains a proposal for "The Executive Body on Technology", "to establish a committee, an advisory panel, or designate some other body, to proactively address patents and related intellectual property issues to ensure both increased innovation and increased access both for mitigation and adaptation technologies".

It further states that the committee/panel should: "(a) Actively engage enterprises and institutions in both developed and developing countries; (b) Develop a clear framework for evaluation and determining when intellectual property becomes a barrier to international technology research, development, deployment, diffusion and transfer and provide options for corrective action; ( c) Make recommendation back to the UNFCCC COP or COP/MOP on barriers that may require further actions".

There are also proposals in the Chair's text that mention "Preferential pricing", "Differential pricing between the developed and developing countries", "promoting innovative IPR sharing arrangements for joint development of Environmentally Sound Technologies", and "Promoting Joint technological or patent pools for the development and transfer of technologies to the developing countries at low cost". +