EcoPerspectives Blog
The Infamous Failure of the Eco-Patent Commons and the Quiet Success of the WIPO Green Project: What We Can Learn About Disseminating Green Tech to Developing Countries
By Christopher J. Clugston, Professor, Keimyung University, Daegu, South Korea*
May 20, 2021
Summary: This article reviews the Eco-Patent Commons and the WIPO Green Project, two programs developed to disseminate green tech to developing countries. The failure of the former and the success of the latter are instructive on the best practices in this area.
As the global climate crisis worsens, the need to encourage sustainable growth in the developing world has never been greater. Much of the technology for this sustainable development already exists, but is covered by exclusive patent rights. Because of this, there have been many attempts to develop programs that can facilitate the dissemination and use of existing patented technology for developing and less developed countries. Two significant programs that have attempted to address this are the Eco-Patent Commons (“Commons”) and the WIPO Green Project (“Green Project”). An analysis of these programs is instructive on the best practices in this area.
The Commons was a 2008 initiative spearheaded by IBM, and ultimately joined by twelve additional firms . The Commons was created as a type of patent pool of green technology related patents. In an attempt to create a cohesive and synergistic pool, the patents were limited to a few specific areas of technology: energy conservation, pollution control, environmentally friendly materials, water or materials use, and reduction and recyclability. The firms jointly contributed two-hundred and forty-eight patents, covering ninety-four distinct inventions .
Most pooling arrangements only cover those that are a party to the agreement. However, the Commons benefited all users of the patented technology. A pledge of a patent to the Commons included an irrevocable covenant to not assert the patent against any third parties for methods or products utilizing the patented technology, as long as they provided environmental benefits. Contributors, however, did retain the right to assert the patents defensively against any company bringing suit.
Although started amid much fanfare, the Commons never lived up to its initial hype . At the time, it was believed that many firms were likely to own green technology that was not being utilized. Thus, this technology had little value to them, but it might hold great potential value to underdeveloped regions. In return for donating this to the Commons, the firm would receive good PR, and also possibly benefit from the further development of its technology.
The project never caught any traction and began to wind down in 2011, finally ceasing operation in the 2016. A detailed post-mortem on the program found a number of problems with the implementation . First, the Commons was set up by the suppliers (the patent owners) without any input from the potential users of the technology. Second, there was little or no tracking of patent utilization within the program. The problems with this were two-fold. There were no success stories that could be used to promote the program to potential users and there was no valuable PR for the contributors. Finally, and most significantly, the program was entirely run by the private sector on a voluntary basis. There were no fees for participation that could help fund recruitment, provide additional assistance for participants, or go to managing the overall program.
As the Commons was winding down, WIPO started its own Green Project in 2013. This project has been able to avoid most of these issues. Unlike the Commons, the Green Project is not a pooling arrangement. Instead, this project is an online marketplace developed to facilitate transactions between patent owners and green technology purchasers. WIPO is not a participant in the market, or in the transactions facilitated by the market.
The Green Project is distinct from the Commons in a few important ways. First, it includes both the patented green technologies and the reciprocal technology “needs” listings in its database. To further enhance the effectiveness of the program, it also provides matchmaking events and technology exhibitions to bring these groups together . Second, it comprehensively tracks the success of the program, and is able to make adjustments in response to its failures. According to WIPO’s website , the Green Project has developed far beyond the scope of the Commons – with 3,800+ listed technologies, 100+ partners, and 700+ connections made. Further, the Green project continues to grow and be a success; WIPO recently released its WIPO GREEN Strategic Plan 2019-2023 laying out its aggressive growth blueprint over the current four year period. Finally, it is more comprehensive in that it provides access to additional important resources, such as know-how and funding sources. It also helps with patent filings and WIPO Arbitration and Mediation services at a reduced rate.
From the comparison of these programs, we can draw some important conclusions. One, we need to advocate solutions that take input from all interested parties, and that are focused on maximizing the value of the intellectual property assets for both the contributors and the users. The failed Commons attempted to have a royalty-free pool, almost ensuring limited participation of members and modest offering of patent assets. Two, we cannot expect to rely on the private sector, alone, to solve a collective action problem such as this. Public and non-profit entities are necessary to help encourage participation, facilitate the process, track its use, and promote its success stories. These entities should be, as with WIPO, neutral and independent administrators that do not invest, acquire, or exploit the technology. However, considering the enormity of the climate issues we are facing, WIPO Green, and programs modeled after it, can be improved. These programs need to be expanded, and to do so, they will need sufficient funding. Currently, WIPO does not require any fees to register or participate . A fee structure that relied primarily or entirely on more developed countries would help this expansion as well as allowing for subsidies for the less developed countries that need this technology. This would go far toward a sustainable and scalable programs that are necessary to combating climate change.
*Author Bio: Christopher J. Clugston is a professor of law at Keimyung University in Daegu, South Korea. His teaching and research focus on law and technology topics, including those areas where the intellectual property laws overlap with environmental issues.