The world will not be able to mitigate the impact of climate change without advanced clean technologies.

Although technology is not the only solution, it is a critical element in the fight against climate change.

Technology transfer and intellectual property issues have captured the world's attention at the United Nations Framework Convention on Climate Change (UNFCCC) negotiations in Copenhagen. However, a legally binding agreement on climate change will almost certainly be delayed until at least 2010 -- in part because of the failure to agree on technology transfer and intellectual property issues. 

Unlike a natural disaster or outbreak of disease, climate change will affect 100 percent of the world's population. Companies and nonprofit entities in both developed and developing countries are working on solutions to the climate change problem.

There is consensus among the UNFCCC delegations that reductions in greenhouse gas emissions to counteract climate change will require the adoption of clean technology by developed and developing countries. A key question is how innovative technology will be disseminated. Negotiations have stalled over differing views on how best to fund and facilitate the commercialization and deployment of clean technologies.

Even if a binding UNFCCC agreement is not made until 2010 or beyond, the policies currently under discussion will impact your business for years to come. Companies and institutions with technologies and intellectual property rights relevant to clean technology cannot ignore the issues raised in the Copenhagen negotiations, particularly if they have their eye on markets in developing countries. Entities that are developing or selling clean technologies, or plan to do so, should seize the opportunity to participate in structuring the policies and frameworks for technology transfer that will shape the market for those technologies.   

UNFCCC Compulsory Licensing Proposals

Of the proposals circulated in the UNFCCC negotiations for improving technology transfer, compulsory licensing is the most contentious.

India and China have been particularly vocal that compulsory patent licensing should be expanded to cover clean technologies. Compulsory licensing refers to a government's permission to make, use, sell, import and otherwise practice a patented item or process without the consent of the patent owner where such consent would otherwise be required.

One compulsory licensing proposal seeks to expand Article 31 of the Trade-Related Aspects of Intellectual Property Rights agreement (TRIPs) which allows for compulsory licensing by governments in cases of national emergency, extreme urgency or public non-commercial use. Currently, there are four options being circulated for the UNFCCC draft agreement's section on intellectual property rights and two of those options include compulsory licensing proposals.    

U.S. Stance on Compulsory Licensing

Because the UNFCCC agreement will require consensus of all the negotiating countries, the chances that a broad expansion of compulsory licensing will be included in the final draft are low. The United States in particular has been clear in its opposition to compulsory licensing, asserting that such a scheme will discourage companies from investing in innovation.

Buttressing that negotiating position, the U.S. House of Representatives has taken a strong stand against the weakening of intellectual property rights with respect to "green" technologies. Section 329 of the Foreign Relations Authorization Act bill, H.R. 2410, states that it shall be U.S. policy to "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 ..."   

Voluntary Licensing Models

More politically viable technology transfer and intellectual property proposals are under discussion at the UNFCCC negotiations.

One potential UNFCCC resolution centers on voluntary licensing programs for technology and intellectual property rights where patent and technology holders can "choose" to participate. Moreover, a number of U.S.-based companies and NGOs have galvanized efforts to support technology transfer as well as intellectual property protection, by offering alternatives to compulsory licensing. Most of these groups aspire to create incentives for open innovation and sharing of green technology, in part by reducing the transaction costs associated with technology transfer. 

The GreenXchange is a project spearheaded by Nike and the Creative Commons. The GreenXchange is based on the Creative Commons project for copyright and intends to leverage open innovation to solve problems of sustainability.  The Creative Commons plans to provide flexible, standardized and easy to use licenses for granting patent rights for sustainable uses.  Under the GreenXchange, companies can make their patents available under a license for either commercial or non-commercial uses.