Differentiated IP Regimes for Environmental & Climate Technologies. Keith Maskus ICCG ICARUS International Workshop Venice, May 20, 2011

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1 Differentiated IP Regimes for Environmental & Climate Technologies Keith Maskus ICCG ICARUS International Workshop Venice, May 20, 2011

2 Background Critical needs for new mitigation and adaptation technologies. Equally critical: effective diffusion and adaptation to local needs in DCs. Non OECD emissions now greater than OECD. Stern report: stabilize GHGs emissions at 550 ppm requires 30 50% cut in 2050 from Cost 1% global GDP; if delay 30 years 4%. Economic and population growth implies increasing amounts of absolute cuts needed. So we need large investments in development, distribution and adaptation of new technologies.

3 UNFCCC negotiations ITT and IPR have been highly contentious issues. Most OECD countries: patents are necessary and effective for inducing innovation and tech transfer. China, India and others: patents are a barrier to ITT. Options: compulsory licensing regime; pooling of (publicly funded) ESTs; exempt LDCs from patent obligations; ban patents on genetic resources and plant and animal varieties relevant for CC adaptation.

4 Essential public goods issues Domestic policy bias toward inaction due to political economy considerations. Considerable scientific and economic uncertainty about net benefits and costs across borders of specific policies. Uncoordinated international policies fail to account for static and dynamic externalities from GHG emissions; free riding at all levels of income. Radically different social and economic valuations of clean air across (and within) countries. Leakage issues: a carbon pricing agreement involving just developed countries could push older technologies to DCs without better means of transferring newer technologies. Failure to establish a high and stable price for GHG emissions reduces incentives for investment and tech transfer. Innovation and technology diffusion both are subject to appropriability and asymmetric information problems. Coordination issues in IPR system itself: there may be too little investment in IPR enforcement and use, especially in DCs and LDCs. Heterogeneity of technologies in DCs; Thus, it is unlikely that the IP system itself will support sufficient investments in ESTs and (especially) in effective ITT and local adaptation.

5 IPR as the primary solution? Relevant IPRs in this area: Patents and trademarks Trade secrets Plant variety rights (bio engineered solutions) Copyrights (software)

6 What drives innovation in ESTs? (Measured by patent applications) Anticipated market demands; Relative prices of energy types; Regulatory provisions; Costs of investment; Public grants and subsidies; Mixed evidence at best regarding patents as stimulus; Patents may not be an ex ante stimulus but firms do take out patents for commercialization and ITT. A likely exception is new agricultural and industrial biotech (biofuels, etc.) solutions. Very unlikely that promise of patents in poor countries will induce innovation for their needs.

7 IPRs and ITT But there is pretty good evidence that IPR help expand ITT through: Raising certainty (reducing asymmetry problems); Reducing transactions costs in licensing; Facilitating development of technology markets. IPR reforms tend to expand volume and quality of ITT and shift from FDI to licensing ( externalization ). These effects don t happen much in LDCs (there are significant threshold and policy effects). Patent applications are an important source of information diffusion.

8 Are patents a barrier? None of this reassures those who think IPRs are primarily a source of monopoly power. Patent landscaping studies in ESTs: EC/Copenhagen Economics (2009): Rapid increase in patenting in developing countries, but highly concentrated in China and other middle income. Virtually no patents in LDCs (means no intent to transfer). Patent ownership is largely in OECD and is widely diffused (multiple technology sources). China is a major and expanding source of technology (solar, fuel cells, increasingly wind). Some concerns raised about new generations of biofuels and synfuels effected by biotechnologies.

9 Are patents a barrier? Chatham House (2010): 57,000 patents over 30 years in six energy technologies. Invention and adaptation in many ESTs are lengthy processes. Argue for targeted policies to accelerate adaptation and diffusion. UNEP/EPO/ICTSD patent landscape (2010). Patent rates in clean energy technologies have risen sharply. Dominated by developed countries but several emerging economies have notable shares. Ownership shares are widely diffused across firms and countries within any technology. Barton (2007): solar PV, wind, biofuels. Still competitive with reasonably free entry; many technologies off patent. Multiple substitutes among competing licensors. Real barriers to ITT are poor investment climate and restrictions on trade and investment. Basic conclusions: IPR has not been a significant barrier to ITT so far. But incentives for innovation and ITT are not enough to overcome externalities and market failures.

10 Innovation proposals: differentiated IPRs? Most ideas stem from history in pharmaceuticals. Patent term extensions. Motivations: To compensate for regulatory delays in patent exam and/or marketing approval. Hatch Waxman Act in US: evidence is that extensions beyond 10 year effective term do not induce innovation even in pharma. Extensions for particular ESTs that are most useful for reducing emissions. Ex post extensions are not likely to stimulate more innovation and are costly to users. If done, tie them to broad licensing. Short extensions for adaptations to new uses. Generally heavy protection for minor adaptations; prefer other forms of protection. Would need clear and transparent international rules for determining patent extensions; unlikely.

11 Innovation proposals: differentiated IPRs? Expedited patent exams and differentiated fee structures have some promise. Requires sustaining or improving patent examination quality. Difficult to figure out how to set lower fees for ESTs and define what s eligible. But rebates for ITT to poor countries might be effective. Lower upfront fees and higher renewal fees.

12 Innovation proposals: differentiated IPRs? Wild card patents: short extensions of existing patents in major markets in return for innovating/transferring specific technologies to poor countries. Uncertain impacts on innovation and competition. Potentially costly in delaying competition in protected markets. Obvious political economy problems across countries. Overall, I m doubtful that these patent related innovation incentives would work.

13 Access proposals: defeat or modify IPRs? TRIPS flexibilities already exist: Exclusions from patentability (arguably possible under TRIPS); Rigorous patentability standards (novelty, inventiveness, utility); Research exemptions in using patented technologies; Compulsory licensing: Generally ineffective (know how, entry deterrence, complex administratively, meaningless if no capacity). Sensible application of competition policy. Another TRIPS Waiver along lines of 2005 amendment in medicines? Negotiated agreement on limited exceptions to copyright for scientific materials.

14 Positive models Increase information flows through patent landscaping and searchable databases. Voluntary patent pools with differentiated access royalty rates. (May require public subsidization to induce participation.) Potential for targeted patent buyouts. Encourage universities and public laboratories to license or freely transfer technologies developed via public funding. Extended scope of science research grants.

15 Beyond IPRs All of the above is secondary to raising global carbon prices to induce innovation and ITT. Border tax adjustments would be counterproductive in supporting ITT and adaptation. Expanded fiscal supports (GEF, targeted prize funds, patent buyouts) are more likely to work. Subsidies to implementation and adaptation for specific local needs are likely to be needed. Financing? Revenues from carbon taxes or carbon caps and auctions would be first best. Otherwise negotiate burden sharing and access agreements.

16 Political economy: can global cooperation work? Good news: Cross border GHG externalities imply mutual interests in technological change and use. Rapidly emerging commercial interests in innovation and use in major DCs. Bad news: Expect subsidies and green tariffs to benefit politically powerful interests in each country. Publicly funded research by country likely to be distributed preferentially to domestic firms. It may require significant compensation to major DCs to induce their cooperation in investing in reduced GHG emissions.

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