Elizabeth Burleson & Winslow Burleson - Innovation Cooperation: Energy Biosciences and Law

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.