The case for sharing

The argument for broad, open access to green technology is compelling in both moral and practical terms. Climate change is a global problem that requires a global response. A solar energy technology that is locked behind a patent wall, accessible only to businesses and governments that can afford to pay licensing fees set by a rights holder in a developed country, is a technology whose contribution to global decarbonisation is being artificially constrained.

The moral dimension is reinforced by the economic one. Developing nations, including many in Southeast Asia and across Africa and South Asia, are projected to bear a disproportionate share of the costs of climate change despite having contributed relatively little to the emissions that caused it. Restricting their access to green technologies through the enforcement of IP rights adds a further layer of inequity to an already deeply unequal situation.

There is also a purely practical argument. The faster clean technologies are deployed at scale, the faster emissions fall and the greater the chance of limiting global temperature rise to levels that avoid the worst projected consequences. Every year of delay in the deployment of a more efficient solar panel, a better battery technology, or a more effective carbon capture process has a measurable cost in terms of cumulative emissions. If patent protection is slowing that deployment, even marginally, the cost is borne not just by the businesses competing in the green technology market but by the entire global population.

The case for protection

The counterargument is equally compelling and should not be dismissed. The reason that so much green technology innovation is happening in the private sector is precisely because the patent system creates the commercial incentive to invest in it. Research and development in green technology is expensive, time-consuming, and uncertain in its outcomes. Businesses invest in it because the patent system promises them the opportunity to recoup that investment through commercial exclusivity if they succeed.

Remove that incentive, and the flow of private capital into green technology research and development would be significantly reduced. The state would need to fill the gap, and the historical record of state-led technology development, while not without its successes, does not suggest that public funding alone can replicate the pace and scale of innovation that the private sector has demonstrated in areas such as solar energy, battery technology, and electric mobility.

There is also a quality argument. Patents require disclosure. In exchange for the exclusive right granted by a patent, the inventor must describe their invention in sufficient detail that a person skilled in the relevant field could reproduce it. This disclosure requirement means that patented green technologies are, in a sense, already being shared. The knowledge is in the public domain, even if the commercial exploitation of that knowledge is temporarily restricted. When the patent expires, the technology is free for anyone to use.

What is already being done

The tension between IP protection and technology access in the green sector has not gone unaddressed. A number of initiatives have sought to bridge the gap between the two imperatives, with varying degrees of success.

The Eco-Patent Commons, launched in 2008 by a group of major technology companies including IBM, Nokia, and Pitney Bowes, made a selection of environmentally relevant patents available royalty-free to any business committed to environmental improvement. The initiative attracted limited participation and has since wound down, but it demonstrated that voluntary patent sharing in the green technology space is at least conceptually feasible.

The WIPO GREEN platform, operated by the World Intellectual Property Organization, connects green technology holders with potential users in developing countries, facilitating technology transfer through licensing arrangements and partnerships. It is a useful mechanism, though its reach and impact remain modest relative to the scale of the challenge.

More recently, a growing number of major corporations have made voluntary commitments to license certain green technology patents on favourable terms to entities in developing countries, or to refrain from enforcing specific patents in low-income markets. These commitments reflect a growing recognition that the reputational and commercial costs of being seen to impede climate action through aggressive IP enforcement are increasingly difficult to justify.

Compulsory licensing: the nuclear option

At the more interventionist end of the spectrum lies compulsory licensing, the mechanism by which a government can authorise a third party to use a patented invention without the consent of the patent owner, subject to the payment of reasonable compensation. Compulsory licensing is already available under international IP law, most notably through Article 31 of the TRIPS Agreement, and has been used in the pharmaceutical sector to address access to essential medicines in developing countries.

Whether compulsory licensing should be extended more broadly to green technology patents is a subject of active debate in international policy circles. Proponents argue that the climate emergency justifies the same kind of intervention that has been accepted in the context of public health emergencies. Opponents argue that compulsory licensing undermines the investment incentives that the patent system is designed to create and that the long-term cost in reduced innovation would outweigh the short-term benefit in increased access.

In Malaysia, the Patents Act 1983 already contains provisions for compulsory licensing in defined circumstances. Whether and how those provisions might be applied in the context of green technology access is a question that policymakers have yet to address directly.

A middle path

The most constructive approach to the tension between green technology IP protection and access is probably neither unrestricted sharing nor unconditional enforcement, but a middle path that preserves the innovation incentives of the patent system while actively facilitating technology transfer to the markets and communities that need it most.

Differentiated licensing models, where royalty rates are set according to the economic capacity of the licensee, represent one practical mechanism. Green technology patent pools, where multiple rights holders contribute their patents to a shared licensing platform available on standardised terms, represent another. Collaborative research and development arrangements between businesses in developed and developing countries, where IP ownership is shared from the outset, offer a third approach that avoids the access problem by design rather than after the fact.

For Malaysian businesses and institutions developing green technology, engaging with these debates and understanding the range of licensing models available is increasingly important. The choices made about how to share, license, or enforce green technology IP will have implications not only for commercial returns but for the contribution that Malaysian innovation makes to the global effort to address climate change.

Conclusion

The question of whether green technology should be shared does not have a single right answer. It has a set of competing considerations that need to be weighed honestly and navigated carefully. The patent system is not the enemy of climate action, but it is also not a neutral force. How IP rights in green technology are managed, licensed, and enforced will shape the speed and equity of the global green transition in ways that matter enormously.

The challenge for businesses, policymakers, and IP professionals is to find the arrangements that keep innovation flowing while ensuring that the benefits of that innovation reach the people and places that need them most. That is not a simple task. But it is an essential one.

For further enquiries or advice, please contact us at kass@kass.asia for expert guidance.