1. WTO Side Event Hotel Azul Sensatori Carretera Cancun-Puerto Morelos Km. 27.5 Bahia Petempich, Quintana Roo 8 December 2010 from 14:00 to 18:30 IP and Climate Change Situating the WTO TRIPS Agreement in policy debate on climate change Jayashree Watal

2. Disclaimer Not an institutional view – no WTO logo On my own responsibility Without prejudice to the positions of WTO Members and to their rights and obligations under the WTO Not an authoritative account or interpretation Represents work in progress

3. IP and technology transfer A range of views have been expressed as to whether IPRs, particularly patents, trade secrets and plant variety protection, –present a barrier to technology development, diffusion and transfer in developing countries, or –are an essential mechanism for technology development and diffusion. A range of solutions have been presented

4. IP and technology transfer - some prevailing ideas on solutions A legal view: legislate to directly access patented technology, e.g. through exclusion, revocation, compulsory licensing or government use orders – backed by international legal/political action –OR by allowing patent term extensions, including wild-card patents An administrative view: construct mechanisms to facilitate technology pooling or placing in the public domain –all proprietary climate technologies/ just publicly funded/just public domain –voluntary/compulsory non-exclusive and royalty-free/reasonable royalties –OR facilitate patenting and licensing Patent fast track; licences of right An information view: improve the flow of information about public domain/patented technologies (patent landscapes) and licensing interests and opportunities An economic view: work on market incentives for both innovation and technology diffusion

5. TRIPS Agreement Article 7 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. Patents: obligations and policy options –Article 27, 28, 29, 30, 31, 32, 33

6. Important to note Patents rights are obtained for each jurisdiction separately and are independent of each other. At the time of patent filing, or even grant, it is not commercially proven technology – many fall by the wayside. Even if it is commercially proven, the mere existence of a patent on a particular clean technology in a particular country is not, in and of itself, proof of barriers to access. –It all depends on how the patent is exploited and this in turn depends on the competition and availability of close substitutes. Abuse of patent rights can be dealt with under competition law

7. Reflections on technology transfer Equally, the absence of an enforceable patent right in a certain country does not in itself provide any guarantee of technology transfer. –Most inventions are protected in a small minority of countries worldwide, without concomitant transfer of that technology taking place to those countries where there is no patent. Why? –Absence of patents leaves open the prospect of using the technology disclosed in the patent document. However, much depends on skill levels, infrastructure and other factors important to the absorption of technology Without the partnership or involvement of the technology originator, and the transfer of valuable know-how for the effective exploitation of the technology, it may often be difficult to replicate the technology inherent in patent documents. Cannot compulsorily license know-how. Incentives to enterprises to promote tech transfer can be important.

8. Article 66.2 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. Several developed countries have reported under this provision projects for LDCs in climate friendly technologies: Australia, EU, Canada, Norway, Switzerland and the US.

9. Whats distinctive about technology transfer addressing climate change? Technology is the essential cause of anthropogenic climate change. But technology is necessary part of the solution –Need to generate break-through, disruptive, new platform technologies as well as cumulative innovation, fine tuning, adapting A growing sense of urgency – need to increase transparency, reduce transaction costs There could be specific legal obligations between States – parallels the debate on adoption of technical standards Emerging ethical/human rights context –Adaptation technologies linked to right to food, health, shelter –Global self-interest in wide diffusion of clean technologies

10. Whats distinctive about technology transfer addressing climate change? (2) Technologies highly diverse in character and involve almost any sector Unlike pharmaceuticals, in engineering for renewable energy, –R&D (and IPRs) cost may be small part of total costs. Materials, after- sales service may be a larger part –Tacit know-how could be a large part, making CL less feasible –May be many patented technologies/products in one final product, making CL administratively and practically difficult –Patentee willing to sell at reasonable price, license – exclusivity not an option because of direct competition as patents not as strong, many alternatives available. –Already developing countries like China, Brazil own patented technologies in solar and biofuel, so not clear-cut North-South –Patents may not be renewed up to full term as technologies may change rapidly. Cuts both ways – patents may not be the lead mechanism for appropriating returns from R&D and equally, developing countries may be targetting the wrong mechanism.

11. Current negotiating text FCCC/AWGLCA/2010/14 Agreement that any international agreement on IP shall not 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 enhancement of endogeneous capacities and technologies of developing countries and transfer of, and access to, environmentally sound technologies and know- how.

12. Current negotiating text FCCC/AWGLCA/2010/14 Specific measures to remove barriers to the development and transfer of IP- covered technologies, including: –Creation of a Global Technology IPR Pool that ensures access on non-exclusive royalty- free terms. –Sharing of publicly funded technologies and related know-how on royalty-free terms.

13. Current negotiating text FCCC/AWGLCA/2010/14 Environmentally sound technologies to adapt to and mitigate climate change shall, in developing and least-developed countries, be: –excluded from IPR protection –revoked where IPRs exist. TEC shall recommend to the COP international actions to support removal of barriers to technology development and transfer, including those arising from IPRs.

14. CONCLUDING REMARKS Generally unlikely that a Doha-type declaration would, in and of itself, help access climate technologies. –For many reasons outlined earlier, it is unlikely that for most climate technologies the absence of patents, through exclusions of subject matter revocation through CL/government use –would lead to these technologies and products being available widely in all or most developing countries at reasonable costs –Where relevant, TRIPS obligations and flexibilities already exist and nothing done in UNFCCC will change that. So what should developing country negotiators try to achieve? It may be more productive for them to focus on joint collaborative R&D, private-public partnerships, especially on adaptation and other pragmatic ways on the management of IPRs, including recognition of best practices in industry for rapid diffusion and dissemination than focusing on TRIPS amendments.