Munich Intellectual Property Law Center (MIPLC) Intellectual Property and Clean Technology in the context of the European Legal Framework Marisa Aranda.

Munich Intellectual Property Law Center (MIPLC)

Intellectual Property and Clean Technology in the context of the European Legal Framework

Marisa Aranda

MIPLC PhD CandidateMax Planck Institute Scholarship Holder

Sixth Advanced Research Forum on Intellectual Property Rights WIPO, 2012

Outline

1. Introduction

2. Statement of Problem

3. Research Questions

4. Structure of the Project

5. Methodology

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1. Introduction Concentrated Solar-Thermal Power (CSP) Plant

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© SCHOTT Solar AG

2. Statement of Problem

• The promotion of environmental sustainability and mitigation of climate change has been integrated within the EU Energy Policy. However, has it been integrated in other Union policies or activities? i.e. Intellectual Property?

• Need of a Clean Technological Revolution. Problems associated with RD&D in this field: (i) requires

substantial investment, (ii) public subsidies (funding shortfall?), (iii) private sector enough incentivized?

Balance: Incentives – Dissemination/Access Diversification of EU Portfolio by Stimulating Innovation

How best to achieve it?...

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3. Research Questions (i)

A. Should the Environmental Integration

Obligation, imposed by Article 11 TFEU and

Article 37 CFREU, have an impact on European

Intellectual Property Law and Policy?

• Art. 11 TFEU: “ENVIRONMENTAL PROTECTION requirements

MUST BE INTEGRATED into the definition and implementation of

the UNION’S POLICIES AND ACTIVITIES, in particular with a view

to promoting sustainable development”.

• Art. 37 CFREU: “A high level of ENVIRONMENTAL PROTECTION

and the improvement of the quality of the environment MUST BE

INTEGRATED into the POLICIES OF THE UNION and ensured in

accordance with the principle of sustainable development.”

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3. Research Questions (ii)

B. Is the current Patent System fit for this purpose? How can appropriate Collaborative IP Mechanisms be implemented to foster incentives and to promote access in this field?

C. What is the relationship between Patent Law and several Government Support Mechanisms geared towards developing clean technologies?

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4. Structure of the Project

1. Environmental Protection and Decrease of GHG: The

Restricted Realm of Environmental Law?

2. Should the Environmental Integration Obligation have

an impact on European IP Law and Policy?

3. In practice: What role does Environmental Protection

play in European IP Law and Policy?

4. Patent Law and Government Support Mechanisms for

Environmental Protection. What is the relationship?

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4.1. Environmental Protection: The restricted

realm of Environmental Law?

A. Environmental Law.• Principle of Sustainable Development.• Principle of Integration.

B. Legal Framework of GHG Emissions.• International: UNFCCC & Kyoto Protocol.• European: TFEU, CFREU, EU GHG ETS, Renewable

Energy Sources Directive, Action Plan for EPE: 20-20-20,...

C. Interaction btw. Environmental Law and IP Law. • Implications of Environmental Law for IP Law.• Clean Technology: No uniform terminology.

Renewable Energy and Smart Grid Technologies

• Clean Energy Technological Revolution.

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4.2. Environmental Integration Obligation: Impact on European IP Law and Policy?

A. Legal reasoning.• The evolvement of EU environmental policy.

• How does EU Law affect Intellectual Property?

• Conciliation of EU’s environmental and economic aims: Articles 7 and 11 of the TFEU. Article 37 of the CFREU.

B. Governance reasoning.• Relevance to Environmental Policy.

• Relevance to EU Law enforcers.

C. Economic reasoning.• Theory of environmental economics.

• Social welfare goal.

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4.3. In Practice: What role does Environmental Protection play in European IP Law & Policy?

A. Is IP Law an Incentive or a Barrier?• Relevant IPRs: Patents & Trade Secrets.

• Conflicting views on the role of IPRs.

B. The Patent System: Encouraging Innovation?• Administrative Patent Policy.

• Substantive Patent Law.

• Non-discrimination under Article 27(1) TRIPS.

C. Licensing Structures & Collaborative IP Mechanisms:

Appropriate to foster incentives & promote access?• Private Public Partnerships (i.e. SET-Plan)

• Patent Pools (i.e. Desertec Industrial Initiative)

• Standards Agreements (i.e. EU Smart Grid Standardization)

• Open Innovation (i.e. Concentrated Solar Power Open Source Initiative)

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4.4. Patent Law and Government Support Mechanisms

A. State Aid for Environmental Protection.• State Aid: Article 107(1) TFEU

• Environmental Aid Exemption: Articles 107(3)(b) & (c) TFEU

General Block Exemption Regulation (Environmental Aid)

Community Guidelines on State Aid for Environ. Protection

B. Relationship between Patent Law & Support

Mechanisms introduced by Environmental Law.• i.e. R&D grants:

Proposal: Government authorities to oblige “non-

exclusive” licensing with publicly funded

innovations?

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5. Methodology

• Analysis of Legislation: International, EU, Intellectual Property & Competition.

• Study of Literature: Books, Articles, etc.

• Examination of existing EU Case Studies: i.e. SET-Plan, Desertec, EU Smart Grid Standardization, Concentrated Solar Power Open Source Initiative,...

• Conducting Interviews with relevant authorities and enterprises in the field.

• Attendance at Workshops & Conferences.Marisa Aranda - May 2012 11

THANK YOU

FOR YOUR ATTENTION!!!

[email protected]

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