Fast-Tracking Cleantech Patents: What Choice is There?

Fast-Tracking Cleantech Patents: What Choice is There?

Alex Gloor is a JD student at Osgoode Hall Law School.

Cleantech is everywhere you look. Hybrid cars. Energy efficient appliances. Geothermal power. There is a global realization that continuing our coal-burning, energy guzzling ways are unsustainable, both because we will exhaust the planet of its resources and because of the uncertain, but certainly disastrous, effects of climate change. Consequently, what was once seen as “alternative” technology has quickly becoming mainstream.

In response to this cleantech boom, many countries now provide a means for fast-tracking environmentally friendly patents. This fast-tracking is achieved by granting accelerated examination for patent applications relating to green technologies. Through this process, patents can be granted in as little as nine months rather than the typical multi-year process. The United States introduced such a system in 2006. As reported on, Australia, South Korea and the UK have followed suit with 2009 initiatives. Those hailing the fast-track system view it as a win-win scenario. The expedited process is seen as a potential boon to the economy, attracting environmentally friendly industry and creating jobs for years to come. Further, this system allows for earlier diffusion and use of green technologies amongst developed and developing countries to help in the global fight against climate change. Whether such hopes translate into reality is yet unknown.

The cleantech market is booming. Companies will be trying to build a strong cleantech patent portfolio as quickly as possible. However, introducing conditions ripe for feeding through cleantech patents in a short amount of time may also create more litigious conditions. It is possible that some companies would end up doing more harm than good by hastily trying to build such a portfolio. The accelerated patent process may bring an excess of unsatisfactory patents by creating a frenzied rush to the patent office.

Successful incorporation of clean technologies on a wide scale requires time, money and certainty of success. Although the planet does face many urgent environmental crises, the best solutions to these problems will be those that are the most well thought through. No single patent will provide a solution; rather, a piecemeal approach of proven technologies is needed to solve the problem that we have all created.

Despite some of the stated environmentally friendly intentions, the rationale for accelerated examination of clean technologies is primarily driven by economics. By 2018, revenues of $325.1 billion are forecast in the sectors of solar photovoltaics, wind power, and biofuels alone. Undoubtedly, business in this area will concentrate where conditions are most favourable. Countries with no fast-track system for green patents will lose out on an important and emerging market. Thus, despite the possible drawbacks of fast-tracking cleantech patents, it is in Canada’s best interest to implement a similar fast-track system. By neglecting to do so we risk losing billions of dollars in an area that is sure to expand for years to come.

As a signatory to the Kyoto Protocol, Canada has hopelessly fallen behind its targeted emissions reductions. It is possible that even more stringent targets may be set at the upcoming Copenhagen climate summit in December. Pressure will continue to grow both domestically and internationally for Canada to significantly lower its greenhouse gas emissions. Rather than paying for foreign cleantech in the future, why not do everything possible to encourage domestic growth in cleantech industries? Introducing environmentally friendly technologies at home would also make Canada a viable player in the carbon market, providing the country with additional sources of carbon credits to sell to other Kyoto signatories.

Canada’s rate of cleantech innovation is already beginning to lag behind that of other developed countries. Since 2006, nations such as Japan, Germany and South Korea have seen an on average increase in cleantech patent filings while Canada has been remarkably stagnant. It would be speculative to conclude that this stagnation has been caused by a lack of incentives to cleantech companies, such as the ability to fast-track patents. However, this stagnation does demonstrate that the status quo in Canada is not efficiently attracting cleantech business. Conditions must change in order to entice new cleantech companies to Canada. A good first step would be to allow fast-tracking of environmentally friendly patents.