Can the world avert catastrophic climate change through
sustained legal cooperation resulting in environmentally efficient, sustainable
technology? In Innovation Cooperation:Energy Biosciences and Law, Professors Elizabeth Burleson and Winslow Burleson discuss how different organizations must work together to overcome the
imminent threats of climate change. The
article delves into the international, legal, and societal barriers that
prevent the diffusion of climate change technology while addressing the
innovative steps that are being taken to overcome these obstacles.
The authors suggest that universities are ideal environments
for cultivating global initiatives. By collaborating with other industries,
universities can coordinate strategic development innovations that take advantage of the
ingenuity and creativity of multiple educational disciplines. Universities will produce better engineers if
they incentivize multidisciplinary environmental competitions and encourage
international and cross-cultural experiences (e.g., internships, mentoring
programs, and leadership training). The article illustrates the importance of
these goals by analyzing the collaborative efforts of universities and
governmental actors in the research of oil producing algae. But this case study exposes a significant
hurdle facing environmental technologies; society favors exclusive intellectual
property rights over shared knowledge.
To increase the diffusion of green technologies, there needs
to be legal and policy reform in the area of intellectual property law. Universities can play a vital role in
facilitating environmental technologies by aligning their licensing goals with their
public service mandates. This requires that
universities think of their patents not as revenue sources, but as a means to
maximize the social impact of technology. Other policy factors, like public
health concerns, are influencing policy change in intellectual property law. For instance, trade
secrecy provisions can be used to regulate the chemicals used in natural gas
drilling operations in order to protect water tables and consumers.
Global policy makers like the World Trade Organization
(WTO), the World Intellectual Property Organization (WIPO), and the United
Nations have utilized commitments from multiple countries to engage in broad
technological cooperation. By
coordinating with international organizations, the world community can combine
international law, patent pools, licensing arrangements, and dispute
resolutions to address climate change.
But the concentration of patent ownership in the hands of a few can
delay innovation.
To overcome the imperfections created in the market by
patent monopolies, the authors suggest government intervention. Government subsidies and intellectual property
protection may incentivize the diffusion of technology owned by
corporations. Additionally, independent
power producers should be able to sell their power onto the grid. The government can increase the amount of
“connected” renewable energy providers through market incentives and
cap-and-trade programs.
The article does an excellent job explaining several of the
imminent road blocks hindering the dissemination of environmentally friendly
technology. Furthermore, the authors do
a great job introducing the reader to several of the international efforts that
are currently underway to aid poorer countries in the development of
sustainable energy. But, how will the
recent changes to the American patent system impact these global efforts? Typically, when the PTO makes a § 103 obviousness rejection,
a practitioner can overcome the rejection by showing that the application and
prior art are commonly owned or are assigned to the same person. In 2004, these
obviousness exceptions were expanded to include certain prior art that was the
basis of a joint research agreement. See Cooperative Research and Technology Enhancement (CREATE) Act of 2004. Under
this new amendment, two or more entities could come together to develop new
technologies without the fear that the claimed invention by the co-inventor
will bar the other from receiving a patent.
Now, in addition to obviousness, section 102(b)(1)(A) of the America
Invents Act extends these exceptions to cover novelty. Going forward, disclosures made within the
one year grace period will not count against the applicant, if the disclosure
was made by a joint inventor. Hopefully, this amendment will further facilitate the innovation efforts of universities and industry leaders as they come together to combat the environmental challenges of tomorrow.
Posted by Bryan Parrish (bparrish@smu.edu), a registered
patent agent, research assistant to Sarah Tran, and a 2014 Juris Doctor candidate at SMU Dedman
School of Law.
