This article is written by Ishaan Kedar Paranjape who is pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.

Introduction

In wake of rising threats to the environment, going green is not only desirable but also mandatory. The haunting impact of climate change is felt globally, and across the world. There is a consensus that in order to avert this menace, the creation of environment-friendly and environment-enhancing technology is unavoidable. Governments, companies, and bureaucrats have begun to stand united in order to take action against varied forms of pollution and the adversities arising out of it. To capitalize on the need of protecting the environment, several innovators have come up with a plethora of inventions. Nevertheless, with dynamic technological progress, there is an urgency to design a robust innovation system and open the door for effective national IP systems that upkeep the development of inventions, tech, and services essential for the evolution of a green future. Intellectual Property jurisprudence acts as the means to achieve the end of protecting such advancements, not only domestically, but also globally.

What do we mean by ‘green technology’?

Green technology means any technology created with an intention to reduce the negative human impact on the environment. Reduction in the usage of resources and incorporation of renewable resources in the mainstream are the fundamental facets of green technology. Products and services that reverse the damage to the environment are also a part of green technology. For instance, carbon sequestration technology, soil remediation methods, etc. would be counted as green tech (see here). Simply put, any kind of environmentally friendly or clean technology can be bracketed into the category of ‘green technology.’ The main features of green technology can be jotted down as follows:

1. Viability- Creating a potential career by effective execution of economic activities, policies around technology that protect the environment (see here).
2. Innovation- Creating technology that can act as an equally feasible alternative for substances that are hazardous to health and the environment (see here).
3. Sustainability- This implies the use of natural resources in such a fashion that future generations won’t have to compromise because of the actions of the current generation (see here).
4. Source reduction- Using technology to bring a change in the chain of production and consumption that shall reduce waste and keep a check on pollution (see here).
5. Cradle to cradle design- This implies the use of manufacturing products using reusable and reclaimed materials only (see here). 

Now it is imperative to acknowledge that The International Patent Classification Committee (see here) developed an “IPC Green Inventory” (see here). This IPC Green Inventory facilitates searches for patent information relating to technology that is environmentally sound (see here) as envisaged by United Nations Framework Convention on Climate Change (see here). This aforementioned IPC Green Inventory includes a plethora of subject heads that include alternative energy production, energy conservation, nuclear power generation, transportation, waste management, agriculture forestry, and administrative, regulatory, and design aspects (see here). By adopting and accepting green technology, we are opening the doors for the use of reusable energy sources and trying to keep a check on pollution. While doing so, green tech helps in achieving the goals of sustainable development as well.

What is green IP?

IP rights are at the centerpiece of technological advancements and developments as they are envisioned in the form of exclusive proprietary rights which may be later transferred, assigned, licensed, and protected against infringement. According to the TRIPS (Trade-Related Aspects of Intellectual Property Rights), the enforcement and protection of IPR must contribute to the promotion of technological innovation, transfer, and dissemination for the collective benefit of the producers and users of those goods and services (see here). All this should happen in a manner that amounts to the promotion of socio-economic welfare, and maintains an equilibrium between rights and obligations.

It is well known that IPR grants exclusive rights of monopoly to the creators and this, in turn, encourages the promotion of innovation. With a rise in green technology, there arose a need of protecting this green tech with green IP. The concept of ‘Green Intellectual Property’ indicates the IP protection to the innovations in the domain of green technology (see here). Through this concept, creations that are beneficial to the environment in any possible way are afforded legal protection. Keeping in mind the several benefits of Green IP, it is imperative that developing countries, including India, should proactively expedite the process of granting Green IP protection to green tech. Now let us understand each IP protection separately on the anvil of green technologies.

The green patents

A patent legal right for an inventor that excludes other individuals from accruing economical benefits out of the invention patented without the approval of the patent holder (see here). Thus we can say that a patent is the most obvious IP right when it is about protecting new inventions and tech. However, for acquiring a patent, it is required to disclose the technology to the world at large in such a fashion that the average individual in that field understands it (see here). Also, patenting your invention is an expensive process (see here).   

Promoting environmental enhancement technology is the need of the hour, and the same has been accepted nationally and internationally. Patent law is at the center stage of the IP regime to promote and protect tech innovations even in the domain of eco-friendly technology. Owing to this, there was the inception of a phenomenon called ‘fast track green patent applications’ across several jurisdictions (see here). As an outcome of this regime, green technology acquires patents in a time frame of a few months, which usually used to take years. At this juncture, it is imperative to point out that each country has its separate eligibility criteria for affording green patents to the green tech (see here). 

Trade secrets & green technology

A trade secret is any process or practice of a company that is usually not known beyond the certain employees of a company (see here). Trade secrets by themselves are not protected in India as there is a statutory vacuum in this subject matter. Nevertheless, the judiciary has acknowledged and protected this notion through several precedents (see here).  Trade Secret is an integral aspect of every business and plays an important role in protecting the channels for know-how exchanges by creating a safe haven for the transmission of secret information and proprietary knowledge of trade and businesses (see here).

Every country strives for the protection and innovation of trade developments with a view to encourage considerable investments in tech progress. Trade Secret with reference to the green technology acts as an important facet for both, developed and developing nations, and there exists a positive nexus between trade secret protection and R&D (see here). Without proper trade secret protection, businesses may end up investing more funds in the physical protection of their secrets instead of backing technological innovations.

Trademark- green tech Interplay

Trademark is a name or symbol on a product that shows it was made by a particular company, and that it cannot be used by other companies without permission (see here). The registration process and its complexities differ from jurisdiction to jurisdiction. Functions of trademarks are not restricted to be merely an indication of origin; instead, the trademark portrays wider meaning, attitudes, and expectations not only to the product but also to the customer (see here). Thus trademarks are of great importance as they communicate with the customer that the product is ‘green’- sustainable and environmentally friendly. Even though trademarks may not be a perfect description, by incorporating words like ‘green,’ ‘eco,’‘ re’ (as that of recycling), etc it is possible to convey that the product is pro-environmental in nature (see here). These days, trademarks are also protecting certain colors (see here). Green or similar colors establish a positive correlation with environment-friendly products- thus; again, the product communicates its eco-friendliness with the consumer.

Copyrights vis-à-vis environmental tech

Copyright is a form of IP that gives someone a monopoly to reproduce creative works (see here). Now, it is impossible to not acknowledge copyrights with relation to green technology. Copyright is the most prominent IP protection afforded to soft-wares, algorithms, etc. One has to understand that the principal idea or the functionality of the software in generality cannot be given copyright protection. Nevertheless, specific pieces of codes are copyrightable (see here). When it comes to green technology, software, and data evaluation can play a major role to improve already existing tech in an environmentally friendly fashion; or create new tech in totality. The copyright protection given to such soft-wares and databases plays a very significant role in the IP system.

Conclusion

Companies and manufacturers work hand in hand with external entities and collaborators in order to boost innovation. Such factors include humongous investments and other high stakes. In order to keep up with this, and to enhance and promote eco-friendly tech, it is imperative that green tech and IP go hand in hand. A strong IPR protection amounts to the creation, distribution, and adaptation of green technology. With a dynamic depletion in non-renewable resources, it is not only desirable but also mandatory to adapt to the change of a sustainable lifestyle that is augmented by green technologies.  Green IP is a great aid for green technologies.

References

1. https://ai-law.co.uk/the-essential-functions-of-a-trademark/
2. https://www.ashurst.com/en/news-and-insights/legal-updates/a-look-at-how-sustainability-influences-ip-and-how-ip-can-help-in-achieving-sustainability/
3. https://www.azbpartners.com/bank/trade-secrets-india/
4. https://blog.ipleaders.in/green-ip-way-towards-green-future/
5. https://dictionary.cambridge.org/dictionary/english/trademark
6. https://emagazine.com/an-introduction-to-green-technology/
7. https://www.forbes.com/sites/forbestechcouncil/2021/01/12/green-technologies-for-a-sustainable-future/?sh=106863c06c23
8. https://www.ip-watch.org/2008/06/27/inside-views-green-intellectual-property-scheme-an-innovation-today-for-innovations-tomorrow/
9. https://www.ipwatchdog.com/2018/07/14/can-you-trademark-a-color/id=99237/
10. https://www.ipwatchdog.com/2016/05/07/why-cost-so-much-patent-application/id=68979/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: