The Patent System and Climate Change

16 Va. J. L. & Tech. 301 (2011)

60 Pages Posted: 7 Mar 2011 Last revised: 29 Dec 2013

Date Written: March 4, 2011


The amount of greenhouse gas emissions and consequent climate changes and social responses will depend substantially upon the rapid development and widespread dissemination of a wide variety of new mitigation and adaptation technologies. The international approach adopted by the UN Framework Convention on Climate Change in Cancun will focus the worldwide innovation system more closely on private funding and markets, and thus on the acquisition of patents at the front end of the coming innovation pipeline. The choice to rely on private markets and patents is highly debatable. But it is certain to create substantial tensions for the patent system to assure low-cost access to patented technologies at the back end of technology transfer needs.

This article first describes the uncertain case for relying on the patent system, the tensions that will result from the unbalanced worldwide patenting of climate change technologies, the magnitude of the coming innovation needs, and the measures that have been proposed to limit the effect of the patent system on development of and access to climate change technologies. The article then describes six proposals for maximizing the innovation potential of the patent system while minimizing the costs of access in both the developed North and the developing South. The first set of proposals focuses on protecting research, directing patent incentives towards where they are most needed, and assuring inter-operability of innovations with patented technologies. The second set of proposals focuses on retaining and using ownership powers (and making better use of regulatory powers that look very similar) to better assure widespread access and low-cost licensing of patented technologies. The final proposal addresses expanding access to patented technologies that are voluntarily supplied at low cost to certain markets.

These measures are more likely to be employed, to be more effective, and to be perceived as fairer and as less harmful to ex-ante innovation incentives than the alternative, ex-post regulatory actions that will remain available.

Keywords: Patent, Climate Change, Cancun Agreement, Intellectual Property, Environmental Law, UNFCCC, TRIPS Agreement, Invention, Innovation, R&D, Technology Transfer, Subject Matter, Experimental Use, Interoperability, Retained Rights, Humanitarian Licensing, Exclusive Licensing, Exhaustion, Parallel Imports

JEL Classification: F10, H41, H50, K11, K20, K21, K32, K33, L12, L40, L50, M13, O14, O30, O31, O32, O34, O38, O39

Suggested Citation

Sarnoff, Joshua D., The Patent System and Climate Change (March 4, 2011). 16 Va. J. L. & Tech. 301 (2011), Available at SSRN: or

Joshua D. Sarnoff (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
312-362-6326 (Phone)

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