01/08/2022
To support the 2022 London Climate Action week in June/July, Reddie & Grose hosted an online panel discussion asking whether, in view of the ongoing climate and ecological emergencies, the Intellectual Property system is doing enough to support innovators working on Green Tech and Net Zero related inventions. Four speakers joined us to share their thoughts, including Andrew Sadler from the UK Intellectual Property Office (UK IPO), Anja Von Der Ropp from the World Intellectual Property Office (WIPO), Samantha Wildman from MPA Associates, and Sam Williams from Siemens PLC. What follows is a summary of the main themes to emerge from the discussion along with links to useful resources.
What is Green Tech?
A definition of green technologies has been suggested by Chapter 34 of Agenda 21 of the 1992 UN programme of action from Rio 1992, which defines “environmentally sound” technologies as those that:
“protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and handle residual wastes on a more acceptable manner than the technologies for which they are substitutes”
So, what do we mean by Green Tech? Is it all technologies that are more efficient than their previous iterations, or should the term be reserved for technologies that actively combat climate change or restore nature? In reply to this question, the panel had a range of answers based on their own experiences. Samantha Wildman of MBA noted that she had been involved with projects that cut down on waste, ranging from super-worms that eat packaging, to the 3D-printing of food, while Sam Williams of Siemens PLC was more interested in the software side of Green Tech, such as heat and energy management, digital twins, and EV charging and smart meter technology. For Andrew and Anja, the patent office view was understandably even more diverse covering technologies in a wide range of technological fields.
Being able to provide a clear definition of what is Green Tech and what is not, is not purely an intellectual exercise. If the intellectual property system were to offer special treatment for Green Tech innovations (and in some cases it does) it would be beneficial to be clear about what qualifies and what does not. This would be even more important if fee reductions were to be available (an idea discussed in more detail below).
On the other hand, and hopefully at a point in the near future (such as once a shift to clean energy has taken place for example), it may be that the majority of new innovations and technologies would be classified as Green Tech by today’s definition. Until that day comes, the panel was happy with an open ended definition of green tech that includes more technologies than it excludes.
The View from the UK Intellectual Property Office
The UK Patent Office (UK IPO) is responsible for delivering part of the UK Government’s Net Zero strategy, and as Andrew Sadler explained already provide support for green tech innovators in a number of ways. Schemes include “the Green Channel” for accelerated examination of patent applications, as well as “IP Audits” and “IP Access” aimed at start ups and SMEs wishing to find out if they have protectable Intellectual Property. Additionally, the UK IPO have plans to investigate how they can better support innovators, and share information through schemes such as IPO Green (see the WIPO section below). The UK IPO strategy through to 2026 is available here.
Official fees payable to the UK IPO are already very low, totalling no more than £250 during at application filing stage, with relatively low (compared to other patent offices at least) renewal fees payable each year after grant of a patent. In the panel discussion at least, the idea of the UK IPO offering lower fees for green tech related applications did not gain much traction.
The Green Channel
The Green Channel is a way to speed up the examination of a patent application at the UK IPO, and is open to applications for all inventions that have “an environmental benefit”. As discussed here in our earlier review, the UK IPO criteria are deliberately open-ended, in order to encourage as many applicants as possible to apply for the scheme. More information on the green channel is available from the UK IPO here:
The Green Channel has been running since May 2009, and in the 13 years since, around 3000 applications have been granted Green Channel status. Green channel applications have been filed by transport companies, train manufacturers, airline companies, fuel companies, environmental service companies, and universities, particularly those in China. Many of the applications at first glance appear to be serious “green tech” applications, rather than innovations in wider fields with only an incidental environmental benefit. All such applications are available for inspection via the UK IPO’s dedicated database, available here. Green Channels for patent applications are available in other countries also.
IP Audits and IP Access, and IP Information
Not all innovators will know about intellectual property or whether they own any IP that can be protected. Fortunately, the UKIPO provide a number of schemes and resources to help them find out. IP Audits allow innovators and entrepreneurs to determine whether their product or service is protectable via a patent, trade mark or other Intellectual Property right. Innovate UK Edge, and UKRI, in conjunction with the Intellectual Property Office (IPO) offer grants of up to £2,500 to cover the costs of the audit, providing the applicant for the audit contributes £500 themselves.
Under the IP Access scheme, eligible businesses can receive up to a further £5,000 to implement the recommendations from an IP audit. More information about IP Audits is available here.
The UK IPO also provide a number of information resources and training programs around IP. Some of these are reproduced at the end of this article.
The View from the World Intellectual Property Office
Anja von der Ropp discussed some of the fantastic work being carried out by the World Intellectual Property office (WIPO) to support Green Tech innovation, such as the IPO Green initiative (aimed at patent offices) and the WIPO Green marketplace (aimed at tech innovators or people in search of a technological solution).
The IPO Green Initiative
The IPO Green initiative starts is based on the premise that Intellectual Property Offices are “key actors in green innovation ecosystems”, and aims to support those offices in enacting green policies and programmes that support Green Tech innovation. The initiative is relatively new, having been launched in 2022 with initial funding from the Japanese Patent Office.
The “living document” section of the initiative is particularly interesting as it aims to share best practice between patent offices and other stakeholders, highlighting policies already adopted by patent offices around the world. Policy suggestions for patent offices are provided in each of the living documents, including:
a) Accelerated patent prosecution,
b) Provision of Green Data and Analysis by the IP Office,
c) Matchmaking and Business Rounds,
d) Regional Cooperation on Green IP Matters,
e) Joint Initiatives with WIPO Green,
d) Classification Systems for Green Technology Solutions,
f) Training for Government Officials about Green Innovation,
g) Green Patent Prosecution Highways,
h) Financial Support for Green Patent Applications,
i) IP Awareness, Upcycling Program for Counterfeit Goods,
j) IP Services for Entrepreneurs, and
k) Awards for Green Tech Innovation.
The WIPO GREEN Marketplace
The WIPO Green marketplace provides a database and online technology matching service for green and sustainable technologies. On one level, it is a sophisticated noticeboard, allowing those with environmental, sustainable or technology needs to find relevant solutions offered by others. On another level, the associated WIPO Green acceleration projects focus on particular geographical areas and problems, and try and support and shape particular outcomes by brokering technology solutions. The database is perhaps best described in its own words here:
The WIPO GREEN database is a free, solutions oriented, global innovation catalogue that connects needs for solving environmental or climate change problems with sustainable solutions. The database consists of user uploads of needs and solutions, green technology patents from the WIPO Patentscope database, imports from select partner organizations, and relevant knowledge material.
It is not necessary to have already secured patent protection for an innovation to take place in the market place, and technology providers, technology seekers and technology partners are all welcome to pitch for solutions. The website notes that in 2019, there were more than 120,000 technologies, needs and experts listed, from around 2000 users in 110 countries. The website includes an ever growing list of case studies, including several from the UK.
Acceleration Projects
Anja von der Ropp discussed two recent acceleration projects initiated by WIPO, including a project to reduce carbon emissions in Chinese cities and a project to support climate-smart agriculture in Latin America. Under the guidance of these projects, consultants explore local challenges and green opportunities with the aims of mobilising innovative new technologies and creating tangible links between entities looking for green solutions and potential technology providers. More information about these projects is available here. It seems that the projects have real potential to make a positive impact.
Other WIPO Green Resources : Events and Updates
WIPO Green also provides regular events and seminars relating to Green Technology and Intellectual Property Developments. There are typically several events each month, including those aimed at showcasing technology solutions, like “innovation in sustainable fashion”, “sustainable technologies for wine making”, “hydrogen in transport” and so on, as well as IP management, entrepreneurship and management. Events and updates can be found on WIPO’s website here.
Fee Reductions
Securing patent protection for an invention at different patent offices around the world can often require considerable financial outlay, and it is not surprising that the concept of patent office fee reductions for innovators came up in the panel discussion a number of times.
It is clear that patent offices need to charge sufficient fees in order to ensure that they can maintain high levels of service for applicants. Additionally, as Green Tech applications increase, would a point be reached in which the majority of applications were eligible for a discount, making the idea of a financial incentive for this category of inventions impractical? The UK IPO office fees are already extremely low in comparison to other patent offices around the world.
Nevertheless, there are examples of policy decisions being taken by governments in order to offer fee reductions and incentivise specific sectors of the economy, and such schemes could be applied to Green Tech also. The US Patent and Trade Mark office and Canadian Patent Offices, for example, offer reductions in official fees to “small entities”, in other words small-to-medium sized companies, defined by the number of employees. In the UK, funding for IP Audits and IP Access is available to innovators in the UK schemes wishing to understand whether they have IP in their business, and support them with at least an initial application, while Denmark provides “IP vouchers” that covers part of the cost of preparing a patent application, without a reduction in fees once the patent application is filed at the Danish Patent Office.
Clearly, the costs of seeking protection is always a substantial hurdle for applicants to overcome. In this regard, patent offices are increasingly looking at ways to share information and provide early certainty on questions of patentability, with the aim of reducing the overall cost and time burden for the applicant.
View from the financial services sector : Patent Box and other schemes
Samantha Wildman explained that her work brings her into contact with many start-up and innovative companies, and that she sees a strong need to make access to information and support easier, and for funding bodies to be prepared to take bigger chances on disruptive technologies.
The “Patent Box” for example is a UK government supported initiative for companies in the UK to reduce their tax burden by allowing profits derived from patented inventions to enjoy a lower rate of corporation tax, 10% compared with the standard rate (presently 19%, but due to increase to 25% from April 2023). More information in Patent Box is available here. The Patent Box is a form of tax relief, like R&D Tax credits (described here) but requires a patent as one of the conditions of eligibility. Companies without patented inventions but otherwise engaged in research and development, can still apply for tax relief via the R&F tax credits scheme.
However, Patent Box is not as widely used as hoped. Samantha Wildman notes that schemes like the Patent Box are welcome, but that by offering a reduction on corporation tax payable on profit, they have limited application and tend to be used by established enterprises that are already profitable. According to the UK IPO data, the Patent box is presently overwhelmingly used by corporations with more than 250 employees, and small-to-medium sized enterprises account for less than 10% of patent box users. Disruptive start-ups with innovative ideas, who are pre-profit and still in need of funding and investment in order to come to market and reach profitability, are essentially unable to derive any benefit.
Samantha noted that to tackle climate change we need more disruptive technologies that can be quickly scaled up to transform the market and/or individual behaviour. However, innovation is risky, and entrepreneurs and innovators are often dealing with more pressing initial challenges like perfecting the technology, assembling the right management team, understanding the market better, and establishing a larger market presence. Schemes like the Patent Box and R&D tax Credits are of benefit to them further down the road, only when they have surmounted other challenges.
What start-ups do need is easier access to support, like funding and information. Making either of these difficult to access is likely to delay the kind of transformative change that society needs. Compared with more mainstream technologies for example, those that are truly disruptive may not be able to demonstrate a reasonable likelihood of commercial success at an early stage, a disadvantage that may make it difficult for them to attract funding from more traditional investment bodies. Government investment schemes should therefore be ambitious, and be ready to take a chance on concepts with long term prospects, not just those with the usual or well worn route to commercialisation. Innovation is risky and it would be good to see funding bodies taking more chances.
Lastly, Samantha notes that innovation and the IP system alone is not going to solve the climate and ecological emergencies. What is needed are tighter environmental standards, and clearer regulations for business, as these will provide a strong incentive for increased innovation, and a catalyst to change.
View from Industry
Sam Williams of Siemens PLC discussed how her work focusses on the software side of Green Tech, such as heat and energy management, digital twins, and EV charging and smart meter technology.
The UK remains very much focussed on digital services and expertise, and consequently, much Green Tech innovation can be embodied in computer implemented inventions providing software tools for consultancy services, or data analysis tools for companies wishing to understand or reduce their carbon footprint or resources usage. It is possible to protect computer implemented inventions employing novel or innovative algorithms or methodologies, but under UK patent law such inventions must usually involve a control step performed on a connected device, such as a sensor or thermostat for example. The mere provision of data or information usually does not qualify for patent protection for example, although it might qualify for other types of protection such as copyright or database rights.
One of the significant technologies to emerge in recent years is the “digital twin”, a form of software typically driven by AI or complex computer simulations, that allows developers to make a digital representation of a complicated organisation like a manufacturing or processing plant. Essentially, this allows the plant or factory to be modelled, and then optimised, during either or all of the design, implementation or operation stages. A digital twin modelling fluid flow or a concrete production method could therefore likely be patentable, because of the tangible effect it would have on the actual concrete production resulting from the optimised plant.
Patents are monopoly rights that give the patent holder the right to exclude others from carrying out their invention for 20 years, and applications for a patent are usually strictly examined by the patent office for compliance with the necessary conditions. Sam Williams was interested in exploring whether a different kind of intellectual property right, such as one that is examined more quickly, and that has a shorter duration, would be useful in this area. This would provide innovators with a quicker enforceable right, and make it easier for them to attract investment, or package the protected innovation in license or sales agreements with other companies. Many countries for example provide “utility models”, shorter-term intellectual property rights that only last 10 years, and that are not examined fully for inventive step like regular patent applications. Sam noted that she already considers European design protection as an option to secure protection for the graphical user interfaces side of software innovation, and would be further interested in registrable copyright for source code. In the UK at least, there is no requirement or facility to register copyright, and ownership must be demonstrated after the fact if a need or problem arises.
Sam Williams would certainly like to see more flexibility offered by the IP system to innovators. She also noted that a problem with software is that the finished version can change so quickly, so that by the time a patent is granted, the company may have moved onto the next project. Having a patent right granted more quickly via accelerated examination, or even a simpler examination, would be welcome.
Sam noted that further having early certainty on IP rights is very important, as often industry is interested in taking a family of granted patent, and use them for spin-offs companies, licensing, or technology transfer. Anything that the patent office can do to make the process quicker, and more efficient, perhaps by increased sharing of information with other patent offices around the world, would be welcome. Additionally, policy makers should be ready to recognise the need for new rights, while stake holders in the system should Important to be creative in using the different types of intellectual property right that are available to protect their innovation.
Scorecard: “Must try harder?”
So, is the Intellectual Property system doing enough? Alok Sharma, the president of COP26 in Glasgow, has said that:
“to tackle the climate crisis, and reach net zero, we need the innovation, the influence and the energy of the private sector on our side. And the task, friends, could not be more urgent. In 2015, the countries of the world signed the Paris Agreement, an international deal to tackle the threat of climate change. And they committed to try to limit the rise in global temperatures to two degrees, aiming for 1.5 degrees. But since that Agreement was signed, we have not done nearly enough”.
As discussed above, it turns out that the Intellectual Property system is doing much to engage with Green Tech innovators, and that perhaps the IP system is doing all it reasonably can within the present constraints set down for it.
However, there is certainly more that could be done. It would be good, for example, to see more resources set aside for education and outreach programmes, for personnel to boost the schemes that are already in place, and for more active initiatives to be established. Such initiatives might include an increased focus on supporting innovators with critical technologies, as well as the sharing and implementation of best practice and information between patent offices around the world. WIPO has schemes in place that are beginning to provide such initiatives, and it would be inspiring if these could be scaled up and implemented by other patent offices. This could be expected to have a positive effect on technology and business, essentially creating a virtual circle involving an increased investment in green tech, its deployment, and follow-on innovation.
The IP system already supports innovators and entrepreneurs bringing transformative inventions to the market. But perhaps its present score card could be improved. What we need now are as many clean and green tech innovations to be supported and find a way to market as possible. What ever the IP system can do to provide additional support is welcome. To quote Alok Sharma, “clean is competitive”.
Useful UK IPO Links
UK IPO Links for start ups and entrepreneurs discussing the Intellectual Property System
- IP Equip: Learn more about the different types of IP with the UK IPO’s free online tool
- IP Health Check: Use the UK IPO’s free Health Check service to identify if you have IP in your business.
- IP for Investment tool: Access to the UK IPO’s IP for Investment tool to identify and assess your business’ IP in the context of its overall business strategy to help you understand how the IP assets relate to your business’ growth.
- IP Master Class: The UK IPO’s flagship IP Master Class course will help you gain in-depth knowledge of all areas of IP.
- IP Tutor: Use the UK IPO’s online tool for an overview of IP and how it can be tailored to creative, humanities, STEM and business, law and accounting
- B2B Toolkit: Access the UK IPO’s B2B collaboration toolkit to help businesses recognise and consider how IP is protected and utilised prior to, and during a collaboration, and owned/managed/licensed following on from completion of the collaboration.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
