[Ip-health] Nature Biotechnology (Correspondence): The Green Climate Fund as a patent pool for innovations
thiru at keionline.org
Mon Nov 5 08:22:26 PST 2012
The Green Climate Fund as a patent pool for innovations
• Menno van der Veen
10 October 2012
To the Editor:
During the coming years, the United Nations' Green Climate Fund (GCF; http://gcfund.net/) and the Technology Mechanism will become fully operational. The GCF is a financial mechanism established by the United Nations Framework Convention on Climate Change (UNFCCC) to assist developing countries in coping with climate change. A key function of the UNFCCC's Technology Mechanism is to not only identify and facilitate the adoption of existing climate-friendly technologies but also aid the adaptation and deployment of new technologies to meet local needs and circumstances. The GCF is likely to become one of the most important funding sources for climate-change biotech projects targeted at the developing world. Additionally, by addressing barriers to technology transfer related to intellectual property rights (IPRs), the GCF and the Technology Mechanism can become core biotech institutions in the developing world by boosting research activities and knowledge sharing. On the basis of discussions that took place at two GCF workshops last year, I propose here the creation of a license system and/or patent pool that would overcome these IPR barriers and provide biotech companies with greater incentives to outlicense their technologies, thereby facilitating the implementation of novel climate-change mitigating approaches in the developing world where they are most needed.
On May 20, 2011, in Cape Town, South Africa, and on November 14, 2011, in Amsterdam, The Netherlands, the Delft University of Technology and the University of Cape Town convened workshops to gather perspectives from key actors in developing and developed countries, respectively. Both workshops attracted about 35 representatives from various countries and various fields, including academics, lawyers, civil servants, representatives from biotech companies and nongovernment organizations.
From the outset, it was clear that the ability to share intellectual property would be an important factor in climate change mitigation. For example, at the workshop in Cape Town, Rasack Nayamuth of the Mauritius Sugar Industry Research Institute listed IPRs as one of the barriers to the development of a full-grown biotech sector in his country and other countries in his region. Other barriers he listed were the absence of adequate biosafety regulations, the absence of adequate policies and the high costs of production facilities. In other words, IPRs are not the only barrier to technology transfer, but they are one of the important ones.
When considering the use of climate-change biotech for the improvement of local living conditions, some participants at the Cape Town workshop had a negative view on the influence of patents. They argued that patents further complicated the already harsh conditions of local (farmer) life. Other participants, concerned about the export of inventions and biological materials, emphasized that IPRs were necessary to make the endeavor feasible.
During both workshops participants proposed that the GCF should be able to accept licenses on technology as a type of alternative funding. This would mean that owners of patented technologies could donate a license to the fund. The fund would use these licenses for its beneficiaries (developing countries). A licensing system has various advantages over a system wherein patents are granted because licenses can be confined to specific countries and can be granted for strictly noncommercial purposes.
The license policy could be profitable for innovative companies doing business in developed countries while meeting the interest of developing countries to gain access to the newest technologies. For example, in 2009, a US clean tech company, 349Q (Somerville, MA, USA), announced in a press release that it was working on a solution to the growing scarcity of clean water due to environmental pollution and the growth of the world population, using RNA interference (RNAi) to target microbes in water harmful to human health. By screening waterborne pathogens for genes involved in DNA replication and central metabolism, 349Q aims to identify key targets to be addressed by short-interfering RNAs (siRNAs). Once this set of pathogen-targeted siRNAs has been identified, 349Q would need to scale up siRNA manufacture and use oligo chemistries that optimize stability and RNAi activity in the field application. Based on the assumption that 349Q is seeking to develop its inventions in polluted areas only in developed (rather than developing) countries, the GCF, if convinced of the possibility of reducing the technology to practice in a couple of years, could request a license from 349Q. For the company, this would provide credibility, potentially attracting more investors or grants; for the GCF, the license would mean that when the technology does becomes operational, it will not have to bargain for a license priced at a premium and likely subject to more restrictive conditions.
Another example of a win-win situation for the GCF licensing system is a global company like Chr. Hansen (Hørsholm, Denmark) that supplies life science–based ingredients to food industries and has developed a recombinant enzyme, camel chymosin1, that is able to convert camel milk to cheese curd under ambient temperatures in tropical conditions. Suppose that the company wants to test this enzyme in circumstances of extreme drought where the quality of the available milk is often poor. It may look for a local partner in Egypt and jointly request funding from the GCF to test the technology in local conditions. In exchange for the funding, the GCF could ask for a license on the invention so that it can use the technology in other countries. The benefit for Chr. Hansen would be that it could test its new technologies with a subsidy; likewise, the local partner would benefit by acquiring knowledge from Chr. Hansen. The benefit for the GCF is that it would not only own a license to the technology but also be working with a private sector company of a developing country to promote the dissemination of the technology.
The discussion during the workshops also highlighted several issues that currently constrain licensing of IPRs from private companies to developing countries. For example, Berthold Rutz, from the European Patent Office (Munich), noted that private sector companies are not always willing to license technology on a broader scale because their technology might fall into the hands of competitors or their company might be held liable for damages if the technology were improperly used, as well as because of a general unwillingness to lose control over company intellectual property (which is particularly important in the biotech space)2.
What was clear from the discussion was that, to be successful, the GCF would need to become a well-established name, offering high public relations value for its licensors, so the latter can improve or enforce their image of social responsibility and sustainability. Another issue highlighted was that GCF licenses should, next to the right to produce and use the technology, include the right to conduct further research based on the technology and the deployment of the improved or adapted technologies on the condition that a cross-license to the improvement is granted back to the grantor of the original license. Indeed, as a general rule, the GCF could agree to any sort of condition. However, if a condition limits the usability of a certain technology, this would also diminish the value of the donation.
In terms of oversight, it seems preferable that the GCF license portfolio not be managed by some part of the Technology Mechanism but preferably by a specialized sector of the World Intellectual Property Organization. What's more, the licensing system should be a voluntary scheme as there is probably no support for a compulsory licensing scheme on the global level. Although developing countries have put forward various proposals to weaken IPRs on clean technologies, by compulsory licenses, exclusion of patentability or even revoking of existing IPRs, developed countries have repeatedly declared that the topic is not open for negotiation3.
If donations to the GCF could be made tax deductible and publicly listed (or both), patent owners would have an incentive not to opt for the most restrictive option as it would diminish the value of the donation. This brings up the problem of how to value the donation (IPR license) and if a donation of a private company could be counted as a donation of the member state where it resides. At the workshops it was argued that the donations could count as donations of the private companies and as donations of the country up to the amount of the tax reduction.
The value of the license could be based on its use potential, combined with the costs of alternative technology. Suppose that a license for the production of a bio-based fertilizer is donated to the fund. Because of the donation, the fertilizer can be sold to farmers as a generic product. One liter of the fertilizer now costs $1 instead of $4. If it were estimated that 100,000 liters of the fertilizer would be sold during the next 5 years, the estimated value of the donation would then be $300,000.
A clear advantage of licensing to a $20-billion fund is that the GCF could underwrite the risk of its beneficiaries not using the technology in a safe manner, thereby ensuring that an intellectual property owner who licenses its technology to the GCF has limited liability. In addition, the GCF could take (some of) the burden of due diligence out of the hands of the patent owners because it would conduct such an analysis when deciding to fund a certain project in a developing country.
To summarize, integrating a license system into the GCF could better accommodate IPRs and ensure developing countries gain easier access to climate-change technologies. The world needs inventions to fight climate change and its consequences. Inventions in laboratories are not enough; the world also needs inventive systems to ensure the development, maturation and dissemination of new technologies. The GCF and the Technology Mechanism are exciting new institutions in this regard. They offer the possibility of a license system that ensures that intellectual property is not a barrier, but a boost, to technology transfer, and can become the missing link between the two.
Knowledge Ecology International (KEI)
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