Climate change is a major reason why fresh thinking is required in order to
promote the application and diffusion of ESTs. Intellectual property rights (IPRs),
particularly the patent regime discussed in this thesis, carry a high degree of influence over the development of ESTs. There have been many studies on the relationship between ESTs, patents and climate change; the role of patents in stimulating the innovation of ESTs by providing some preferential treatment; and global and regional EST-related patent activities and trends. However, little light has been shed on how to use patent systems to increase access to ESTs, or to consider how to establish a special patent system based on the particularity of ESTs. This thesis explores whether a differentiated patent regime for ESTs is feasible, in the context of climate change, with the goal of enhancing access to ESTs. It argues that the inherent disadvantage of the current patent system, which centers on the strengthening of exclusive rights, is counterproductive to wider diffusion of ESTs.
By analyzing the existing coordination arrangements around patents and climate
change, this thesis finds that solutions under the United Nations Framework
Convention on Climate Change (UNFCCC) are a flawed vision and the flexible terms in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are not as adaptable to changes as expected, so a more eclectic approach is required to manage the EST-related IP issues. This means that IPRs need be re-examined in the context of climate change, to examine a solution which will both avoid the prevailing over-emphasis on the inviolability of private rights in the world trading system, while simultaneously seeking a solution which will overcome the shortcomings of being devoid of legally binding arrangements under the climate regime.
Departing from previous research which fails to examine in a systematic way the
discord between the structure of patent rights and access to ESTs, this thesis examines the structure model of patent rights specially designed for ESTs, and its role in addressing climate change as its research object. Several lessons drawn from the comparison between pharmaceuticals and ESTs indicate that efforts on the development of an appropriate patent protection in line with ESTs’ own characteristics are worthwhile. With the objective of enhancing access to ESTs, the proposed patent regime in this thesis is constructed under a quadrilateral platform, with WIPO as core coordinator, which is conducive to harmonizing patent protection in the context of climate change.
The study contributes to the dispute on the question of what should be the
appropriate legal approach to deal with IP issues in climate talks. For a specific type of technology with particular functions, a refined and differentiated legal system is necessary. This is demonstrated in two senses: a system that discourages non-environmentally sound technologies and a system providing value-based protection for different types of ESTs. The proposal put forward in this thesis turns a reward system, into a system that aims to green the innovation environment and is suitable for technology diffusion, by using multiple variables of a patent system.
The study explores from the perspective of law and economics an appropriate structure model of patent protection specially designed for ESTs, which consists of patent intensity (patentability), length (duration), and breadth (width). Different levels of the three dimensions have different incentive effects on the innovation and accessibility of technologies. Based on the quasi-public nature and characteristics of ESTs, an optimal combination of the three dimensions is put forward, which suggests that the level of the grant standards be raised; the length be extended; the breadth be narrowed, for the sake of public welfare. Accordingly, differentiated protection with value-based judgment at its core, is proposed for different types of ESTs, giving priority to the innovation of basic and core ESTs and accessibility of improved and combined ESTs.
Located in China, as one of the largest emitters of green house gases (GHGs)
with a great potential for emission reduction, the discussion regarding how to flexibly apply this differentiated patent regime in different jurisdictions is based upon China’s biased development of ESTs and actual demand for ESTs, against the background that the implementation of patent protection must work with characteristics of EST-related industries at a national level. This study finds that differentiated patent protection is desirable for China in two main aspects, namely, the actual working and local innovation, and therefore could have a very positive impact on the building of China’s green innovation environment, as well as enhancing effective competition for ESTs around the world.
Throughout, the study made full use of patent systems to increase access to some necessary ESTs for emission reduction in key concerned industries. What is more, the far-reaching significance of establishing a special regime under WIPO lies, not in the attempt to provide an alternative system for national laws, but in the demonstration of the flexibility and inclusiveness of the IP system under WIPO, in response to new potential challenges, which will enhance coordination between IPRs and other fields.