GREEN IP - A look at how sustainability influences IP and how IP can help in achieving sustainability

Introduction

In its latest Risk Report, the World Economic Forum had three environmental risks leading its list: extreme weather, failure of climate change mitigation, and natural disasters. No other topic had greater global focus over the last years, and countries all over the world have set ambitious goals for the next few decades – the "Green Deal" of the EU, aiming to be climate-neutral by 2050, is only one of these. 

Without new technologies, these risks will not be tackled and these goals will not be reached. Innovation in the field of "green" technology will therefore be pivotal, and IP rights will play a major role. IP rights can secure that investments in research and developments are amortised by commercialising technology, but they can also pose obstacles and limitations. It is therefore crucial to understand the influence and possibilities that "Green IP" can bring to bear.

"Green IP" will affect companies from all industries, sectors, and geographies. The consumer goods industry will have to deal with requirements to design their products in a way that they can be repaired and recycled. Financial institutions will want to offer (and perhaps have to oversee) environmentally sustainable investments. Real estate companies will have to ensure high power efficiency and low waste in their buildings. The infrastructure industry as well as the transportation industry will have to find ways to cut pollution and substitute hazardous materials. And the technology sector will have to provide the basis for most of the technology – from network infrastructure to big data and AI. 

In this first part of our "Green IP" series, we will take a closer look at what IP protection is available to protect green inventions and how companies can make use of these. In upcoming parts of our series, we will take a closer look at how companies can communicate their goals, ambitions and achievements in providing green products and services without illegal "greenwashing", and what regulatory requirements especially in Germany and the EU have in place and are planning to ensure that products become more sustainable. 

What is "green technology" and "green IP"

There is no single definition of "green technology". One description that is commonly referred to, however, stems from the UN Rio Declaration on Environment and Development of 1992. This encompasses "environmentally sound technologies that protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products, and handle residual wastes in a more acceptable manner than the technologies for which they were substitutes". 

This definition is open to all industries. It does not specifically target any sector, but provides a broad – some might even say vague – description. Often, it will only be possible to decide in hindsight whether a new technology was green, or whether unexpected side effects prohibited that. Famously, the expectation that computers would significantly reduce the use of paper was not fulfilled. 

It is therefore not surprising that currently no special regime for the protection of "green technology" exists, as without a legally reliable distinction between "green" and "non-green", this can hardly be established. 

The general IP regime therefore also applies to green technologies. "Green IP" in consequence is also an undefined term encompassing IP protection in the field of environmentally friendly innovations. 

What protection is available

The specific IP protection available for green technology is a question of national law. However, the following can give a good overview of the relevant categories of IP rights available in most countries: 

Patents 

Patents are the most obvious IP right when it comes to protecting new technologies. Patents can in general be granted for any technical innovation that is new and commercially applicable. 

Patents in general grant protection for the duration of a 20 year span. However, they require both the technology to be disclosed to the world at large and a lengthy and comparatively expensive registration process to be followed. The application must explain the invention in a way that a person familiar with the relevant field can understand it. Receiving patent protection is therefore always combined with disclosing one's knowledge. This is the price the patent applicant has to pay for the exclusivity right the patent provides. Also, conducting the patent registration process sometimes requires personnel and monetary resources that companies may lack. 

Patents are thus the most obvious, but also the most complicated IP right. Once obtained, however, they provide reliable legal protection. 

Trade Secrets

Trade secrets have been in the focus of IP protection in the EU for the last couple for years. Following the adoption of the Trade Secret Directive 2016/943 in 2016, many EU member states have upgraded their national protection regimes. Germany for example adopted a completely new Trade Secret Act in 2019. 

Trade secret protection is available for any information that is not generally known, commercially applicable and of value due to its secrecy. Green innovations are thus eligible, but also commercial or financial information can be protected. There is no registration process, but the trade secret owner must have applied reasonable protection measures to keep the information secret. 

Protection is further only granted against unlawful acquisition, use or disclosure of the information – not for its "content". If a person therefore acquires knowledge of the secret without using illegal means, this person is free to use the information. The biggest threat to trade secrets therefore is their public disclosure. Also, the Trade Secret Directive significantly liberalised reverse engineering.

Trade secret protection is therefore less "complete" (and harder to enforce) compared to patent protection. Nevertheless, they can especially be helpful in stages prior to obtaining patent protection, or as "supplemental" protection, e.g. for aspects that do not need to be disclosed in a patent application. 

Design Rights

Design rights grant protection for the aesthetic appearance of products or their parts. The requirements to obtain such protection are fairly low: the design must be new and of individual character, meaning that customers can attribute the origin of a product by the design. The registration process is fairly cheap and fast, since IP offices only conduct a formal examination but do not examine the substantive requirements. 

In some areas – e.g. the European Union – unregistered design rights also exist. Such unregistered rights grant protection upon the relevant product being put into the commercial domain, and are thus invoked "automatically". Compared to registered design rights, which grant protection for up to 25 years, the unregistered community design right has a limited life of only three years.

Design rights can also grant protection to "green" products or their parts. Although parts that consist of purely technical features are excluded from protection, parts that merely serve a technical purpose but are also open to a degree of design freedom are not. E.g. the specific designs of parts of cars or aeroplanes that reduce air resistance and thus lead to better fuel efficiency may be eligible for design protection, but the design right protects the form and not the function of the parts. 

Design rights also play an important role with regard to spare parts, and thus have a large influence on sustainability of products. Where products can be repaired – something that especially the EU will require manufacturers to ensure to an ever increasing degree – design right protection of spare parts could secure the spare part markets for OEMs. However, especially where spare parts must have the same design as the original ("must-match" parts), design right protection is often excluded. This is true, e.g. for EU design rights, and similar initiatives are planned in e.g. Germany and France. 

Trademarks

Trademarks grant protection for signs showing the origin of a product or service. Such signs may be the classic word or logo, but also three dimensional shapes, colours or patterns, or even sounds and surface structures. They can be obtained via a simple registration process, or in some cases – including in Germany – in unregistered form by use on the market. 

Trademarks often serve more functions than just indication of origin. They convey attitudes, meanings or expectations – both of the product and of the customer. Trademarks are therefore great means to communicate that a product is "green", sustainable or otherwise environmentally friendly. Although trademarks may not be purely descriptive, they can incorporate easily understandable terms such as "green", "eco", or "re" (for recycling). They can also protect a specific green colouring, or the feeling of a product made of an individual, environmentally friendly material.

Beside the classical trademarks owned by single entities, also collective marks and certification marks – signs that show that a product fulfils certain standards and requirements which are set and controlled by a third party or industry organisation – can be of great value to communicate environmentally friendly features. Widley known examples include the "MSC" label for sustainably fished seafood, the "Blue Angel" for different eco-friendly aspects, or the "energy star" label for energy efficiency in electronics. In addition, geographic indications can certify that goods are produced regionally, thereby cutting transportation footprint on the environment. 

Copyrights and database rights 

Last, also copyrights and related rights can play an important role in protecting green technologies. 

Copyrights are the most important IP right for the protection of software and algorithms implemented in software. While the principle "idea" or generic function of a piece of software will in general not be protected by copyright, the specific code enjoys protection via copyright law against use by third parties. This applies also to a large degree where the code has technically not been copied, but "only" reproduced in identical or quasi-identical form. Also, the collection and arrangement of large amounts of data can be protected via database rights. 

In the field of green technology, software and data evaluation can play a decisive role to improve existing technologies in an environmentally friendly way, or to allow for completely new (green) technologies to be implemented in the first place. The protection of software used in green technologies therefore is an important piece in the Green IP system. 

AI creations and big data

The present toolkit of IP rights is therefore well equipped to provide protection for green technologies. But innovation in the coming decades will largely be driven by two major trends: Artificial intelligence and big data. Can results stemming from these be protected as well? 

For the protection of works in connection with artificial intelligence, two separate scenarios need to be distinguished: inventions and creations made in the field of artificial intelligence can enjoy the "regular" protection, mostly via patents, copyrights, or trade secrets. Much more discussion requires the scenario where an AI system itself makes a creation. Examples are manifold – from the creation of church windows by random colour patterns to improved drinking mugs created by "inventing machines". As of now, such AI creations – in a nutshell – are not protected by "classic" IP rights such as patents or copyright, since they lack a natural person behind it. Only where the AI system can be regarded as a mere tool of a natural person that is still in control of the creative process, may IP protection be obtained. But the big advantage of AI is that the system comes up with new and "unexpected" results where the programmers themselves are not sure of how this came about. This "control" test will thus often not be met, but the AI system itself will be "autonomous". AI creations therefore are likely to enjoy protection only via trade secrets. 

The same is true for the protection of data. While everyone agrees data will be of tremendous value, and while collections of data can be protected through database rights, there is currently no protection regime to cover the data itself adequately. In a nutshell, data can be protected via contractual obligations and as trade secrets, but not by traditional IP rights. Whether there will be legislative steps to change this in the future remains to be seen, but seems unlikely. "Data owners" will therefore have to make the most of the existing system.

To dos

In order to maximise the benefits IP rights can bring in the area of green technology, companies should consider the following: 

• What IP rights are available for your creation, and how do they fit into your general IP strategy?
  
  For companies that are familiar with patent protection and all the pros and cons associated with it, patents may be the right choice. For companies unfamiliar with these, or lacking the resources to prosecute patents, trade secret protection may be the best route.
  
  For software, companies can profit from protection being granted in most countries automatically upon creation. But also in these situations companies should carefully consider whether they want to rely on trade secrets in addition and whether this requires them to implement additional steps.
  
  Design and trademark protection can for the most part be obtained at reasonably low costs and administrative effort. Obtaining these in addition – or even for additional elements, like a catchy logo for a new technology – should therefore always be considered.
• Is your technology a "green technology" that may be open to specific programs?
  
  Beside the possibility to get state subsidies or other benefits for green technology, some IP-specific instruments are available to facilitate obtaining and using IP rights for green technology:
  
  WIPO's online platform WIPO Green is a green technology marketplace to accelerate projects, connect interested parties and catalyse the distribution of green technology. Currently, over 1,300 registered users and over 3,000 different technologies are part of WIPO Green. Stakeholders can offer their technology (e.g. by way of licence), and seekers can request technology for specific problems. Experts can give assistance for entering into licence or R&D agreements.
  
  Various national IP offices also offer expedite examination for green technology patent applications. In the UK for example, the Green Channel is open to all patent application that can make a reasonable assertion of having an environmental benefit. For certain technology areas, such as solar energy or wind turbines, this is even assumed. Similar services exist in Australia, Brazil, Canada, Israel, Japan, or Korea.
  
  Companies may want to explore such possibilities.
• In which country or region do you need IP protection?
  
  Many green technologies will be created within the "developed" countries – especially in North America, Western Europe, and parts of Asia (China, Korea, Japan). Yet, their primary application field may be in different parts of the world. Solar energy solutions from the Europe might best be used in hot and dry regions like North Africa or parts of Central Asia. Clean water technology from the US might have the best market in Central Africa or remote regions of Latin America.
  
  But IP protection rights are national rights. Developers must therefore not only consider where they will develop green technologies – and where competitors might develop competition solutions but also where they will be put to use. A German patent does not help against the use of the technology in Kenya.
  
  In "classic" IP scenarios, it is often sufficient to have protection in important markets like the US or the EU. If these are blocked, using the technology only in other, lower value markets is not attractive. With green technologies, this might be different – the "important" markets here might be less-developed countries where such technologies can have a bigger impact or are more required. 

Author: Fabian Klein