As organisations public and private strive towards developing strategies to combat climate change and implementing sustainability goals, we examine the role intellectual property rights (IPRs) play in this context. Generally speaking, IPRs protect new technologies. As new and innovative technology is essential to building more sustainable solutions across sectors, IPRs play a crucial role.
We outline some of the developments and initiatives at the intersection between IP and sustainability that are providing incentives for businesses to develop green technology.
Finding innovative solutions and potential business partners
Aiming to connect IP owners and service providers with those who are looking for specific green technology, the World Intellectual Property Organisation (WIPO) launched WIPO Green in 2013. This online marketplace for sustainable technology promotes easier networking with a view to facilitating contact between businesses and potential partners for collaboration across different industries. It also offers some support for commercialisation, by way of licensing checklists, and provides interesting background information on new developments in different fields of environmentally friendly technology, funding options and legal topics.
Fast-tracking green patent applications
IPRs protect and provide value to technological innovations, and so are especially important for promoting innovation as we transition to a green economy. Against this background, several national IP authorities (in particular the UKIPO and USTPO) have implemented policies to expedite green patent applications, significantly reducing the time from filing to the grant of a registration, in some cases by up to 75 per cent. This is particularly useful for start-ups, as having registered IP in the books is a crucial enabler for raising capital and other means of funding. Further incentives or privileges (eg reduced filing costs or ‘vouchers’) are also under discussion.
Modernising EU design laws
In additive manufacturing, such as 3D printing, design rights play an important role in protecting the appearance of products. Such technologies are widely considered to be beneficial to the green transition, particularly as they produce less wastage and can reduce global shipping. The legacy EU framework governing design rights has faced some challenges in adequately addressing the complex issues surrounding additive manufacturing. There is a lack of clarity around the protection of 3D printing files and the limitations for private use, as well as calls for more effective protection mechanisms against design plagiarism. As part of the EU Green Deal, in which all 27 member states aim to become climate neutral by 2050, the EU Commission has launched the EU Action Plan on IP, which led to an initiative in April 2021 to update the EU legislation on design rights. The consultation period is now closed, and the proposal for a new directive is expected in Q3 of 2022.
Collaborations in the field of green technology
Aside from classic M&A activity, we have seen an uptake in commercial collaborations across industries in the field of green technology. Such collaborations provide for greater flexibility to co-operate short- or long term and enable parties to pool different assets (such as IPRs, data and human resources) to boost development capabilities, cost efficiency, and time to market ability. However, there are pitfalls in such collaborations, particularly where the allocation and (cross-)licensing set-up for IPRs is at the heart of such deals, and heavily impacts the parties’ ability to commercialise the results of their co-operation. For more detail on how to navigate collaboration agreements see here.
Promoting green credentials
As the green transition gets underway, organisations are coming under significant pressure from the full spectrum of stakeholders to establish and demonstrate their commitment to sustainability. As companies turn to environment-related advertising, this has led to an increase in trademark applications incorporating sustainability credentials (such as ‘green’, ’sustainable’, ‘bio’, ‘natural’). While corporate commitments to sustainability are commendable, where environmental advertising is false, incomplete or exaggerated, companies risk accusations of ‘greenwashing’. The existing toolkit against misleading (environmental) advertising is typically contained in unfair competition law, but the EU is seeking to put further safeguards in place. Firstly, the Omnibus-Directive, to be applied by member states by 28 May 2022, will tighten EU-wide consumer protection laws by introducing a new sanctions regime including significant penalties, which could also be relevant for unfair environmental advertising (especially in cross-border advertising campaigns). Second, as part of its Circular Economy Action Plan, the Commission has announced ambitious plans to introduce new consumer rights for information on the durability and reparability of products in the Consumer Rights Directive. The Commission also proposed an express ban on greenwashing and planned obsolescence, amending the Unfair Commercial Practices Directive. Companies are well advised to keep a careful eye on these developments when creating environment-related advertising.