This article is written by Arkadyuti Sarkar who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Although the present IPR legislation has outlined the criteria for granting the right of intellectual property that includes the criteria of environmentally sound or damage proof invention (under Sections 3(b), 3(c), and 3(j) of the Indian Patent Act, 1970) to the pioneer, yet it is mostly neglected. The criteria of environmental wellbeing are often overlooked for novelty, non-obviousness, and usefulness of the inventions for the purpose of socio-economic benefits by the patent granting authority. There are numerous instances where rights were granted to intellectual property in the form of patents, trade secrets, etc, resulting in significant socio-economic development, however, at the price of irreversible environmental damages.
The weak specification of the environmental protection criteria in the patent granting process is one of the biggest limitations of the present IPR legislation. Inventions for protecting the environment, inventions devoid of or having minimal damage, and inventions providing sound environmental management are highly necessary in the present world scenario. Hence, establishing stringent criteria concerning environmental protection, conservation, and management in the present IPR legislation while granting intellectual property rights to the pioneer is needed for sustainable development.
What is Climate Change and the role of CFC behind it?
Climate change means the building-up of man-made atmospheric greenhouse gases such as carbon dioxide gas, resulting from the use of hydrocarbons or fossil fuels (coal, petroleum, and natural gas) mainly for industry and motor transportation. Such buildup or the greenhouse effect results in (among other climatic changes) an increase in the global temperature or global warming.
In this regard, Chloro Fluoro Carbon (CFC), a pivotal greenhouse agent, needs some elaboration. CFCs have been used as a safer alternative to sulfur dioxide and ammonia-based refrigerants since the early 1930s. After a few years patents were granted to CFCs for being used as refrigerants. Since then its use has not only spiked as refrigerants, but also as aerosol propellants, cleaning solvents, and blowing agents, thereby leading to depletion of ozone layer, a climate change agent as a greenhouse gas, thereby having serious environmental and public health consequences.
Despite having ample evidence of CFCs linkage to climatic changes and atmospheric ozone depletion, patents were continuously granted for CFC-based inventions as required by the Intellectual Property Law. Even after 1987 when scientific certainty regarding the impacts of CFCs on stratospheric ozone and the Montreal Protocol on Substances that Deplete the Ozone Layer were evident, patents granting for CFCs continued. However, after a prolonged struggle between environmentalists/scientists/social workers and government/industries, since 1997 the patents for inventions likely involving the atmospheric release of CFCs have stopped. This development, however, is not a result of restrictions on CFC patentability, but rather due to a lack of market incentive for obtaining a patent on CFC-based inventions.
How can patents be helpful in protecting the environment?
Although the patent law has attracted major criticisms for the prevailing environmental pollution and degradation, for making little to no distinction given between a ‘green’ and a polluting invention, it can still be helpful for climate change mitigation and adaptation. There are 4 pivotal avenues through which patents can address anthropogenic emission of GreenHouse Gases and other environmental concerns.
Encouraging inventiveness through the grant of proprietary rights
If viewed positively, the patent law has been performing this role, albeit on a small scale, for a long time. The majority has opined that on granting patents to inventors of green technologies, the role of patent law in climate change adaptation and mitigation will be fulfilled.
Morality and ordre public provisions
The second way is through the morality and order public provisions typical of the European Patent Convention (EPC). The order public provision, originating from the French Civil Code has no equivalent in the United States Patent law or the Indian law. Nevertheless, the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement contains the following (non-mandatory) provision on morality and ordre public: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law”. Authors opine that the phrase is desirous of avoiding serious prejudice to the environment fits in the climate change discourse since climate change is a grave environmental concern. Nevertheless, the difficulty with this provision lies not just in what order the public actually suggests, but also in identifying inventions out of the order of public ambition.
Use of patent information by environmental regulatory authorities
The environmental regulatory authorities can use the patent information provided to patent offices and are disclosed before the public, for discovering technologies that are potentially harmful to the environment and therefore deny relevant rights to use. It is mention-worthy that the patent grant does not entitle a person the positive rights to use a specific invention. The role of intellectual property law should not be confused with environmental law. According to leading IP scholars, “each area of law has a discrete and separate function which it should pursue and, correspondingly, that it is wrong for these functions to be confused or conflated.
Customizing Patent laws for inducing green innovations
The patent law can be tailored for specially treating green inventions. This can be effected extending the time of protection or relaxing patentability criteria, for eg: novelty.
When all is said and performed, patent law can still be explored for venturing other avenues of opportunity for addressing climate change issues.
Relation of Traditional Knowledge with environmental issues
Climate change is a severe environmental issue in the contemporary world. It is a matter of life and death for local and indigenous communities. This is not only due to the adaptation of techniques requiring economic and technological ability, which is absent among poor and marginalized communities, but also due to mitigation strategies presently in place militating against the rights and welfare of indigenous peoples. For example, eviction of local and indigenous communities around the world from their ancestral territories for implementing the Kyoto Protocol’s Clean Development Mechanism.
How can it prove beneficial for the environment?
Below mentioned are 4 reasons concerning the benefit of protecting TK and related genetic resources for protecting the environment.
The eco-friendly lifestyle of the communities
Through traditional knowledge and associated genetic resources, local and indigenous populations manage to continue an eco-friendly life with negligible impact on the environment, let alone the production of greenhouse gases. Local and indigenous inhabitants have numerous lessons on environmental conservation and sustainable development to offer to the world. The Convention on Biological Diversity necessitates the members to preserve, protect and promote traditional knowledge concerning biodiversity conservation.
The recently introduced international mechanism to reduce emission through deforestation and forest degradation mainly relies upon indigenous people who are the custodians of forests. Protecting traditional knowledge and doing social and economic empowerment of local and indigenous communities is indispensable for the sustainability of forests.
Alleviating poverty and empowering communities
Climate change increases poverty since it leads to extreme droughts, reduction in livestock, and the spread of diseases. Thus, it is important to protect traditional knowledge upon which the local and indigenous communities rely to earn a living. Non-protection of traditional knowledge strips the poor owners of the share in the economic benefits accruing from the utilization of their knowledge. This results in deterioration of the condition of the craftsmen, leading to poverty, and suicides in extreme cases.
Protecting Traditional Knowledge and effect on climate change mitigation and adaptation
Local and indigenous populations have a long tradition of natural interaction. The traditional knowledge linked with ecology, food production and preservation, and weather forecasting facilitated them to persist in critical conditions.
Effective and time tested adaptation strategies
Positive protection of intellectual creations belonging to local and indigenous communities is crucial for poverty eradication and therefore empowers them to deals with climate change. As provided by the Convention on Biological Diversity Access and benefit-sharing, the researchers are required to obtain the prior, informed consent of local and indigenous communities before using traditional knowledge and associated genetic resources. Such economic incentives are vital with the emergence of climate change adaptation. Local and indigenous inhabitants can utilize such income for building bridges and walls to adapt to the effects of rising sea levels and other impacts of climate change. Monetary resources are also essential for building water sources such as boreholes and providing other social amenities, which have conspicuous absence among local and indigenous peoples.
As it is inferable from the above analysis, the existing IPR legislations are highly incompetent and inadequate in dealing with the emerging environmental issues. However, it does not imply that the issue of environmental welfare is absent in the present legislation. The problem is that the environmental welfare aspects undergo gross neglect while granting a patent for new technologies. This can be remedied by adopting strategies like encouraging innovators to develop green technologies, Customizing Patent laws for inducing green innovations, Use patent information by environmental regulatory authorities for determining technologies that could have harmful environmental consequences, etc.
Another problem lies with neglecting the IPR protection of traditional knowledge, or for newer innovative technologies or abidance of environmental protocols. Traditional knowledge can serve as a great shield of environmental protection as the indigenous communities who have lived close to nature for time immemorial are enlightened with numerous eco-friendly knowledge and methods that may help in environmental protection.
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