Munich Intellectual Property Law Center (MIPLC)
Intellectual Property and Clean Technology
in the context of the European Legal Framework
Marisa Aranda
MIPLC PhD Candidate
Max Planck Institute Scholarship Holder
Sixth Advanced Research Forum on Intellectual Property Rights
WIPO, 2012
Outline
1. Introduction
2. Statement of Problem
3. Research Questions
4. Structure of the Project
5. Methodology
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1. Introduction
Concentrated Solar-Thermal Power (CSP) Plant
© SCHOTT Solar AG
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2. Statement of Problem
•
The promotion of environmental sustainability and
mitigation of climate change has been integrated
within the EU Energy Policy. However, has it been
integrated in other Union policies or activities?
i.e. Intellectual Property?
•
Need of a Clean Technological Revolution.



Problems associated with RD&D in this field: (i) requires
substantial investment, (ii) public subsidies (funding
shortfall?), (iii) private sector enough incentivized?
Balance: Incentives – Dissemination/Access
Diversification of EU Portfolio by Stimulating Innovation
 How best to achieve it?...
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3. Research Questions (i)
A. Should
the
Environmental
Integration
Obligation, imposed by Article 11 TFEU and
Article 37 CFREU, have an impact on European
Intellectual Property Law and Policy?
•
Art. 11 TFEU: “ENVIRONMENTAL PROTECTION requirements
MUST BE INTEGRATED into the definition and implementation
of the UNION’S POLICIES AND ACTIVITIES, in particular with a
view to promoting sustainable development”.
•
Art. 37 CFREU: “A high level of ENVIRONMENTAL
PROTECTION and the improvement of the quality of the
environment MUST BE INTEGRATED into the POLICIES OF
THE UNION and ensured in accordance with the principle of
sustainable development.”
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3. Research Questions (ii)
B. Is the current Patent System fit for this purpose?
How can appropriate Collaborative IP Mechanisms
be implemented to foster incentives and to promote
access in this field?
B. What is the relationship between Patent Law and
several Government Support Mechanisms geared
towards developing clean technologies?
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4. Structure of the Project
1. Environmental Protection and Decrease of GHG:
The Restricted Realm of Environmental Law?
1. Should the Environmental Integration Obligation
have an impact on European IP Law and Policy?
1. In practice: What role does Environmental
Protection play in European IP Law and Policy?
1. Patent Law and Government Support Mechanisms
for Environmental Protection. What is the
relationship?
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4.1. Environmental Protection: The restricted
realm of Environmental Law?
A.
Environmental Law.
•
•
B.
Principle of Sustainable Development.
Principle of Integration.
Legal Framework of GHG Emissions.
•
International: UNFCCC & Kyoto Protocol.
• European: TFEU, CFREU, EU GHG ETS, Renewable
Energy Sources Directive, Action Plan for EPE: 20-2020,...
C.
Interaction btw. Environmental Law and IP Law.
•
•
Implications of Environmental Law for IP Law.
Clean Technology: No uniform terminology.
Renewable Energy and Smart Grid Technologies
•
Clean Energy Technological Revolution.
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4.2. Environmental Integration Obligation:
Impact on European IP Law and Policy?
A. Legal reasoning.
•
•
•
The evolvement of EU environmental policy.
How does EU Law affect Intellectual Property?
Conciliation of EU’s environmental and economic aims:
 Articles 7 and 11 of the TFEU.
 Article 37 of the CFREU.
B. Governance reasoning.
•
•
Relevance to Environmental Policy.
Relevance to EU Law enforcers.
C. Economic reasoning.
•
•
Theory of environmental economics.
Social welfare goal.
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4.3. In Practice: What role does Environmental
Protection play in European IP Law & Policy?
A. Is IP Law an Incentive or a Barrier?
•
•
Relevant IPRs: Patents & Trade Secrets.
Conflicting views on the role of IPRs.
B. The Patent System: Encouraging Innovation?
•
•
•
Administrative Patent Policy.
Substantive Patent Law.
Non-discrimination under Article 27(1) TRIPS.
C. Licensing Structures & Collaborative IP Mechanisms:
Appropriate to foster incentives & promote access?
•
•
•
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Private Public Partnerships (i.e. SET-Plan)
Patent Pools (i.e. Desertec Industrial Initiative)
Standards Agreements (i.e. EU Smart Grid Standardization)
Open Innovation (i.e. Concentrated Solar Power Open Source Initiative)
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4.4. Patent Law and Government
Support Mechanisms
A. State Aid for Environmental Protection.
•
State Aid: Article 107(1) TFEU
•
Environmental Aid Exemption: Articles 107(3)(b) & (c) TFEU
 General Block Exemption Regulation (Environmental Aid)
 Community Guidelines on State Aid for Environ. Protection
B. Relationship between Patent Law & Support
Mechanisms introduced by Environmental Law.
•
i.e. R&D grants:
Proposal: Government authorities to oblige “nonexclusive” licensing with publicly funded innovations?
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5. Methodology
•
Analysis of Legislation: International, EU,
Intellectual Property & Competition.
•
Study of Literature: Books, Articles, etc.
•
Examination of existing EU Case Studies:
i.e. SET-Plan, Desertec, EU Smart Grid Standardization,
Concentrated Solar Power Open Source Initiative,...
•
Conducting Interviews with relevant authorities and
enterprises in the field.
•
Attendance at Workshops & Conferences.
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THANK YOU
FOR YOUR ATTENTION!!!
marisa.aranda@miplc.de
Marisa Aranda - May 2012