Quantcast

Congress Urges Strong IP Stance in UN Climate Change Talks

By Gene Quinn on October 28, 2009

Hillary Clinton, US Secretary of State

Hillary Clinton, US Secretary of State

As first reported by Bartholomew Sullivan of The Commercial Appeal, last week, on October 22, 2009, thirty-four members of Congress wrote a letter to Secretary of State Hillary Clinton urging her to steadfastly support strong intellectual property rights and not to given in to international demands that would weaken intellectual property rights, particularly patent rights. The concern expressed by these members of Congress centers around negotiations attempting to obtain an international agreement under the United Nations Framework Convention on Climate Change (UNFCCCC). This letter references a 432-0 vote in the United States House of Representatives on June 10, 2009, relative to an amendment to the Foreign Relations Authorization Bill, which stated that the United States “should prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of intellectual property rights related to energy or environmental technology” in order to “protect American jobs, spur economic growth, and promote a ‘Green Economy.'”

The United Nations Climate Change Conference in Copenhagen will begin December 7, 2009 and run through December 18, 2009. There will be 192 countries participating, including both the United States and China, who are seen as critical to reaching any deal. The stated goal of the Conference is to stabilize the amount of greenhouse gases in the atmosphere, and reach an international agreement on climate change and moving forward to cap greenhouse gases and presumably thereby save the planet. Perhaps that largest sticking point and hottest issue will be intellectual property rights, so look for there to be much more activity in the days and weeks, with posturing from the pro-ip community, developing nations who want intellectual property rights to be handed over to them and the anti-ip community who will no doubt seize on the moment to forward their own agenda.

The letter to Secretary Clinton makes it clear that a large number of those in Congress are worried, and want to make sure that the Obama Administration does not cave on intellectual property rights in order to achieve a global agreement at the cost of the US economy and US jobs. The letter explains:

In or view, strong IPR protection is essential to achieving the innovation and worldwide technology deployment necessary to achieve environmental goals while meeting the global demand for energy. IPR protection stimulates investment in new technologies, and rewards rather than inhibits the sharing of knowledge and inventions. However, we are concerned about proposals by some countries with emerging economies to weaken IPR for environmental technologies.

The global IPR system, and the incentives it provides for the development and marketing of innovative technologies, is at the heart of our economic and commercial success and drives our ability to export high-value, state-of-the-art goods and services. Efforts to reduce greenhouse gas emissions must not come at the expense of American ingenuity, jobs, and competitiveness. Rather, the U.S. should seek to help other countries acquire and deploy new technologies by addressing real obstacles, such as lack of financing and infrastructure, and market access barriers.

While on some level I am extremely glad to read such a strong and forceful statement, I am also enormously saddened. The party that controls the linguistic high ground is frequently the victorious party, and discussion of “intellectual property rights” and “IPRs” is so European and so not-American. I do not say this to be a dig, but much of the rest of the world refers to “intellectual property rights” and “IPRs” specifically, but we in the United States typically do not adopt such expression, choosing rather to talk about patented technologies and proprietary innovations. While I commend each and every member of Congress who signed this letter, and all 432 who voted in June 2009 to keep “intellectual property rights” strong, I want to caution everyone who supports strong rights — STOP talking about “intellectual property rights”! We are talking about patents and inventions. Perhaps it is a uniquely American dream where individuals starting with little or nothing can build upon their ideas, turn them into inventions, obtain protection and build businesses, even corporate empires. Innovation and invention is as much a part of the American culture as apple pie and baseball, so if we want to make sure that we continue the American dream with respect to innovation and invention we need to use those terms, and acknowledge that much of the rest of the world is asking for US innovators to simply give up their patent rights!

For example, here are some excerpts from around the Internet I cam across, which relate to the stated positions of developing countries:

From the Guardian:

India is also pushing for a relaxation of international patents on green technology. “Unless you adjust the intellectual property rights, how do you bring about rapid defusion,” said Shyam Saran, India’s climate change envoy.

From The Nation:

A group of developing countries is also asking developed countries to exempt clean technology from intellectual property rights so that developing countries could use such technology to cope with the adverse effects of climate change.

From the Copenhagen Conference website:

Given the urgency of combating climate change, Intellectual Property Rights (IPR) on green technologies should not be allowed to stand in the way.

Pure and simple, what many countries want are patent rights associated with green and environmental technologies.  While it would be nice to dream of a world where we all work together in harmony and without care for what’s in it for me, that type of Utopia does not exist, at least not on earth.  In order to provoke the risk taking that is necessary in order to research and develop speculative technologies we need to offer strong, concrete and certain patent rights.  The lure of exclusivity for a period of time causes the greed gene to be tickled and lures funding and resources that otherwise would remain dormant.  If we compromise existing exclusivity in the name of a global agreement why would anyone in the future invest the large sums of time and money required to innovate?  They wouldn’t.

We have a lot at stake here.  It is clear based on hard, historical evidence that any global temperature increases are not out of the norm and have happened periodically over the last 400,000 years and at times where humans did not exist.  Previous temperature increases could not have possibly been caused by man-made carbon dioxide emissions, and recent data from NASA suggests that the earth is starting to cool and many scientists believe the cooling may be prolonged and we have more to worry from an ice age than we do from global warming.  Even the rhetoric has changed from “global warming” to “climate change,” likely because the globe is not warming.  So in the name of protecting the planet we should be very careful about addressing a non-issue and crippling our economy.  See Liberal Think Tank Says Patents Are Destroying the Planet.

I am sure my position will be mischaracterized, so allow me to point out my beliefs.  I am an environmentalist at heart.  We all are on this planet for a limited amount of time, and we should not participate in its destruction.  Polluting less makes a lot of sense to me, after all why would anyone want to pollute more?  We should endeavor to pass on a better, cleaner planet to our children and grandchildren.  The way you do this is through innovation and new technologies, which will only exist if we preserve proprietary rights.  Patents last for a limited time and to paraphrase Thomas Jefferson, we are willing to suffer the embarrassment of a monopoly so that innovation occurs at a high level, and so that in a relatively short time frame those innovations will fall into the public domain and be usable by everyone without limitation.

If you cut off innovation today it won’t exist tomorrow, and there will not be anything to fall into the public domain.  Pretty simple really, when you stop and think about it.

The Author

Gene Quinn

Gene Quinn Gene Quinn is a patent attorney and the founder of IPWatchdog.com. He is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman & Malek.

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields, but specializes in software, systems and electronics.

is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.

Gene is a graduate of Franklin Pierce Law Center and holds both a J.D. and an LL.M. Prior to law school he graduated from Rutgers University with a B.S. in Electrical Engineering.

You can contact Gene via e-mail.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 14 Comments comments.

  1. Nivash Kumar October 29, 2009 1:03 am

    looks like governments will move on to say some patents are stopping us from using green technology, which is an exaggeration of what reality is. May be why can’t governments license some of the patents and move on in a misson to save the Earth.

  2. Dale B. Halling October 29, 2009 1:12 pm

    Gene,

    Technology Diffusion: There is absolutely no evidence that a lack of patent rights will increase the diffusion of technology. Those countries with the strongest patent laws have the strongest technology diffusion. The most likely reason for this is that marketing, sales, and education are expensive and necessary for technology diffusion.

    Monopoly: According to Wikipedia “in economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of government enforcement.” Alternatively, Wikipedia defines “a legal monopoly, statutory monopoly, or de jure monopoly is a monopoly that is protected by law from competition. A statutory monopoly may take the form of a government monopoly where the state owns the particular means of production or government-granted monopoly where a private interest is protected from competition such as being granted exclusive rights to offer a particular service in a specific region while agreeing to have their policies and prices regulated.” Patents are government granted (legal, statutory) so this is appropriate definition. However a patent does not provide a “private individual or firm” the exclusive right to offer a good or service. Patent are not monopolies, they are property rights.

    There are some economists that argue that all property rights provides some monopoly power. This definition of a monopoly is inconsistent with the historical definition of a monopoly and becomes a circular argument that and provides no useful insights. Economists who adhere to the point of view that property rights confer monopoly power are pushing a socialist political agenda instead of acting like a scientist trying to understand the economy.

  3. Dale B. Halling October 30, 2009 1:06 pm

    Gene,

    You state:

    “While it would be nice to dream of a world where we all work together in harmony and without care for what’s in it for me, that type of Utopia does not exist, at least not on earth.”

    I disagree with your statement for two reasons. One is that removing market mechanisms would result in severe misallocation of resources, unless all the participants were omniscient. Two by removing market mechanisms the system would result in unjust distribution of the benefits of the inventive and productive efforts. Our criminal laws and economic system are based on the idea that people own themselves and therefore own the product of their labor (physical and mental). Whenever people believe that the benefits of their efforts are distributed arbitrarily, they start to adhere to a form of legal realism. Specifically, they subscribe to the rule that he who has the guns makes the rules. This inevitably leads to brutal dictators to fill the morality gap, such as Hitler, Stalin, and Moa. So, no I do not wish for a Utopia that destroys the connection between individual efforts and benefits.

  4. Gene Quinn October 30, 2009 2:01 pm

    Dale-

    You are right. I was saying that with tongue in cheek. I think it would be great to live in Utopia with group hugging and kumbaya galore, but if and only if none of the bad stuff that you say would happen would happen. Of course, any Utopia as defined by the group hugging/kumbaya crowd would necessarily be a place where there would be no peace or happiness for the reasons you state, among others. I think those of us who are realists know that if you disassociate benefits from individuals efforts nothing good would or could come of it.

    Thanks for reading. I hope all is well.

    -Gene

  5. website for non profits November 4, 2009 8:50 am

    Monopoly: According to Wikipedia “in economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of government enforcement.” Alternatively, Wikipedia defines “a legal monopoly, statutory monopoly, or de jure monopoly is a monopoly that is protected by law from competition.

  6. Charlotte Wright May 1, 2010 3:24 am

    Climate Change is really scary, now we have super typhoons and a lot of flooding going on some countries..”*,

  7. Carlos Kelly August 12, 2010 5:20 pm

    it is very evident that climate change is already taking effect in this decade~.”