Climate Change and the Patent Regime:Are Patents the Answer?

Next to nuclear annihilation, climate change poses the greatest threat to life as we know it. Climate refugees are becoming a reality and it is expected that by 2050 most of the Pacific Islands will be under water. Forward-thinking nations have made it their agenda to curb the effects of climate change and ensure the reduction in emissions of greenhouse gases.¹ To effectively combat climate change, the deployment of clean energy technologies to combat the effect of carbon emissions from fossil fuelshas been the tool of choice.² Accelerated development and deployment of these clean energy technologies is imperative. The public and private sectors must boost the creation and distribution of clean as well as environmentally sound technologies – something along the magnitude and scale of the space race during the cold war. Addressing the threats posed by climate change requires a portfolio of processes such as extensive introduction of new technologies and modification of existing technologies while also creating optimum environments. The role of intellectual property³ pertaining to clean energy technologies becomes of utmost importance. The patent regime, by its very nature, can either be seen as a hindrance or an incentive for the development of new technology.⁴ This means that an argument can be raised that patents would hinder climate change mitigations as clean technology is patented and licensing it would prove costly. On the other hand, patents will incentivize innovation and therefore lead to advanced technologies to combat climate change.⁴ The paper, refutes the former and argues that patents are essential and rebut the presumption that patents will increase prices. The paper explains, with examples, how the holy trinity of patent pools, patent databases and compulsory licensing will help make the clean energy technology competitive and accessible. The future and the applicability of fair, reasonable and nondiscriminatory (FRAND) licensing to standardised clean energy technology are also discussed. The paper is concluded with an affirmation that patents are the answer to climate change.