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A wide view of green technology and IP law

Krishna Ravi Srinivas*

Clean Tech Intellectual Property: Eco-marks, Green Patents, and Green Innovation
Eric L. Lane Oxford University Press, 2011 ISBN 9780199737093, Soft cover, 260 pp. Price: US$110.00

According to the OECD Report Fostering Growth for Green Growth (2011), between 1999 and 2008, the number of patented inventions in renewable energy, electric and hybrid vehicles, and energy efciency in building and lighting had a higher average annual growth than that of total patents, which was 6 per cent. Recent years have also seen an increasing number of infringement cases in clean technologies, while the marketing of eco-friendly products and services has also seen rapid growth. But is there a reason to write a book on green technology IP and are there any unique features in green technology IP that differentiate it from other technologies? The author of this book states: green IP issues pose unique challenges and raise profound legal and moral questions about the nature of innovation, the best way to facilitate transfer and deployment of clean technologies, and how to protect green consumers (p. 3). The book is structured into four sections. Section I deals with green patent prosecution and licensing, including development of patent portfolios. Section 2 describes some actual cases and here the author provides relevant examples to point out those green technologies which have been the subject matter of important litigation. The next section deals with the use of trade marks, green marks, green marketing, and greenwashing (dened at p. 168 as a means of making false misleading claims regarding purportedly environmentally friendly products, services, or practices). The last section discusses green patent policies and international debate over IP rights, transfer of technology, and initiatives to facilitate technology transfer. While the author does not discuss the role of copyright and trade secrets in this edition, I hope that these topics will nd a place in a subsequent edition, in which discussion of geographical indications would also not be out of place. In Chapter 2, the author discusses strategies for the drafting and prosecuting of green tech patent applications; he follows this by an analysis of case studies
* Research and Information System for Developing Countries (RIS), New Delhi, India. Email: krsriniv@gmail.com or ravisrinivas@ris.org.in.

which highlights how development of clean technology portfolios has helped companies. In the subsequent chapters, issues like value creation and addition through technology transfer and licensing are discussed. These discussions on strategic licensing of IP will be of interest to those who want to know how companies in this sector use IP as a matter of value addition as part of their overall business strategy. In Chapters 5 and 6, the author provides examples of litigation over green technologies such as biofuels, lightemitting diodes (LEDs), and wind turbines. Much of this litigation is linked to protection of market shares either in the domestic markets or elsewhere. The author discusses the importance of recent decisions in US courts for patent holders who use licensing as the source of revenue from patents, without manufacturing any product, and points out that some of them have used a different forumthe Federal Trade Commission as the Supreme Courts ruling on injunctive relief in eBay v MercXchange is not applicable there and patent holders can seek the remedy of a ban on the importation of an alleged infringing product with greater condence in their chance of success. This solution may be unique to the USA and highlights that forum shopping is also part of the strategy to protect market share on their home turf. Thus these two sections help the reader appreciate how highly contested the green technology sector is in matters of IP enforcement and licensing. The next section (Chapters 7, 8, and 9) deals with ecomarks, greenwashing, use of trade marks and service marks, and green brands. Here too, the author provides many examples and illustrates them besides discussing the options available under trade mark law in the USA. The discussion on greenwashing shows that it is widespread and that consumers can be victims of this practice, although they may be using the products/services in good faith with the intention of reducing pollution, since the substitutes promoted by greenwashing may not meet the criteria desired. In the next chapter, the author discusses eco-mark litigation and its importance for consumers. While the overall coverage is excellent, I wish the author had also examined the use of eco-marks and ecolabelling elsewhere, particularly in Europe. The nal section deals with green patent policies, initiatives, and debates on transfer of green technologies at the global level and the fast-tracking programmes offered by national patent ofces in the USA, UK, and Korea to accelerate the issue of green patents. The author rightly points out that this may reduce the time to commercialize some clean technologies, observing that IP rights are not a

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barrier to the transfer of technology to developing countries and providing examples to support his claim. The points raised by the author on the strengths and weaknesses of eco-patent commons and greenXchange are relevant. The books major strength lies in the case studies and the extensive analysis provided by the author. Although he has discussed many of these issues in his blog posts, reading them together with his further discussion in the book is worth the effort. The shortcoming of this book is that it is too US centric: the author could have at least provided some case studies from elsewhere and also could have discussed how clean tech IP is growing in other

countries. Perhaps that calls for a different type of book which can provide a country-by-country analysis and case studies. The book would also have been more useful had there been an analysis of global trends in patenting in green technologies and a concluding chapter. To sum up, the book provides a wide view of green technology and IP law and demonstrates the inuence of IP law and policies on growth of green technology sector and vice versa. It is a must-read for anyone interested in knowing about IP law and practice in green technology. doi:10.1093/jiplp/jpr186
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