Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites
Out-Law Analysis | 27 Apr 2020 | 9:35 am | 6 min. read
The 'green' theme of this year's World Intellectual Property Day on 26 April is the perfect spur for rights holders to assess how patent rights, trade marks and other IP can be used positively for the betterment of our environment and society.
Inspiration on collaborative ways of working can be found from the way many organisations are coming together to address the issues posed by the Covid-19 pandemic, as well as from some existing 'green' IP projects.
While the Covid-19 pandemic understandably dominates the current political and economic agenda, the issues of climate change remain ever present.
Environmental challenges have been widely acknowledged. In Europe, for example, the European Commission has set a goal for the EU to be carbon neutral by 2050 with some cities and regions announcing ambitions to achieve that target even sooner. Copenhagen aims to become the world’s first CO2-neutral capital by 2025. In addition, the World Economic Forum's global risks perception survey indicated for the first time this year that businesses believe environmental risks are the likeliest to materialise.
The recent international response to the Covid-19 pandemic has demonstrated the ability for governments, research institutions and industry to collaborate proactively to face the public health emergency. The common threat of damage to our environment can be addressed in the same way.
IP is an asset. It can be commercialised through sale and licensing arrangements. This generates income that incentivises further research which in turn drives further development and innovation that may benefit our planet
A commendable initiative enabling collaboration is WIPO Green, a technology exchange project facilitated by the World Intellectual Property Office (WIPO) which supports global efforts to address climate change by connecting providers and seekers of environmentally-friendly technologies. The project currently has a focus on energy and anti-pollution technologies but also covers other areas such as water and transportation. WIPO Green seeks to connect technology inventors, entrepreneurs, and companies, provide global visibility and information sharing and assist with attracting potential partners and finance.
Given the challenges of climate change and its support for the WIPO Green project, it was no surprise to see the WIPO choose 'Innovate for a Green Future' as its theme for this year's World Intellectual Property Day, on 26 April. According to the WIPO, "innovation – and the IP rights that support it [are] at the heart of efforts to create a green future".
Organisations of all types can leverage IP rights in the interests of a greener future. Understanding how IP adds value and how different rights may complement each other is vital in this respect.
IP provides revenue for research institutions and businesses that create it while adding to the knowledge economy more broadly. The WIPO’s Arbitration and Mediation Center estimates that the green tech market is increasing by 7% per annum, with an estimated value by 2025 of €5.9bn – and there is plenty of room for growth.
IP is an asset. It can be commercialised through sale and licensing arrangements. This generates income that incentivises further research which in turn drives further development and innovation that may benefit our planet.
A patent gives the owner an exclusive right to commercially exploit the patented invention for the duration of the patent's life. The owner may practice that invention themselves or collaborate with a partner to commercialise and scale up that invention. Patent protection is available for technology across sectors where inventions meet the relevant criteria for patentability. A patent is a right granted to protect an invention, including a process, device, method or product, that is new, inventive and useful.
The Pure Air Nano-TiO2 air purification technology, developed by Lion Trunk Technology, provides an example of the relevance of patents to green tech. The company has secured multiple patents for its nano-adhesive technology that breaks down air pollutants creating potentially cleaner air in our working and living environments.
Confidential information and trade secrets can be amongst the most valuable assets available to a business. A competitive edge in the marketplace may rely on a business having certain information which its competitors do not and being able to maintain the secrecy of that information.
Treating a technological development as confidential information may be a preferable route in circumstances where an invention may not be patentable or enforceability may be challenging, such as in circumstances where it would be challenging to prove a competitor was using your invention. There are also considerable licensing opportunities for the technology transfer of valuable know-how in combination with other IP rights, including patents. This can enable developers of green technology to commercialise their know-how through a third party or via collaborative arrangements, including as envisaged by WIPO GREEN.
Examples of valuable and proprietary confidential information or trade secrets in this context include source code and algorithms for applications which track food source provenance or provide access to clean water reserves.
Design rights are often overlooked by businesses seeking to protect their intellectual investment in new products or new technologies.
However, complementary to other IP rights such as patents, design rights can offer particularly attractive benefits over other forms of IP right. This includes, for example, speed and simplicity of registration at a relatively low cost. Businesses should take into account that design rights may discourage copying, even more so as the increased availability of 3D printing means even complex products can be easily reproduced.
The development of the FUTURECRAFT LOOP running shoe by Adidas highlights the role designs can play in green tech. The shoes are 100% recyclable and are "aimed at tackling the problem of plastic waste, enabling a ‘closed loop’ or circular manufacturing model, where the raw materials can be repurposed numerous times".
Certified trade marks are often an under-exploited form of IP that can help companies distinguish their products from those of their rivals. They give conscientious consumers the opportunity to "vote with their wallet" and use their buying power to engage with products or services which align with their values.
Not only will a certified trade mark differentiate that product but it will also give the rights holder a means to generate revenue by using it as leverage for business partnerships or by licensing the mark. That revenue can be reinvested into the business to support its "greener" working practices
Ordinarily, a trade mark is a sign used to distinguish goods or services of one trader from goods or services of another. However, trade mark legislation provides for a specific type of trade mark called a certification mark that indicates to the public that the goods or services bearing the mark meet a certain defined standard or possess a particular characteristic. Those characteristics may include origin, mode of manufacture or other characteristics. The owner of the relevant certified mark will define those standards or characteristics. Those standards and regulations are made publicly available so consumers can make informed choices based on the certification body's stated characteristics.
Not only will a certified trade mark differentiate that product but it will also give the rights holder a means to generate revenue by using it as leverage for business partnerships or by licensing the mark. That revenue can be reinvested into the business to support its "greener" working practices.
One example of a certified trade mark in this context is the partnership between the Alliance for Responsible Mining and Fairtrade in respect of gold standards, creating opportunities for socially and environmentally responsible small-scale mining communities to market their gold. Through use of the mark, consumers are able to differentiate gold products by how it is produced and make choices accordingly.
Plant variety rights (PVRs) provide an exclusive right, of up to 25 years depending on the variety, to perform certain commercial acts in respect of a registered plant variety.
PVRs offer immense potential to contribute to a greener future, including in respect of the development of disease- or drought-resistant plant varieties, less water-intensive crops, and genetically diverse or robust food sources which can be grown and produced in harsh and diverse climates.
There are diverse and exciting opportunities for IP rights to assist with the development and advances in green technology for the betterment of our environment and society. IP rights are powerful enablers to enhance and foster green technologies and knowledge sharing across the globe.
IP rights provide a means of asset protection and return on R&D investment. They incentivise further investment and aid collaboration between universities, SMEs, the public sector and large businesses to develop, scale up and deploy innovative green technologies in the interests of a cleaner, greener world.
There has never been more of a reason for all of us to rise to the environmental challenges facing our planet; in the same way we have unified to face other crises.
Mark Marfé and Anna Harley are intellectual property law experts at Pinsent Masons, the law firm behind Out-Law.
23 Apr 2020
Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites