Activity 3(b) Work Package 1
Evolving a roadmap for resolving IPR issues in technology transfer

Background

There is now significant scientific evidence that climate change is taking place and human actions are among the major drivers for the same. It is also now well recognized that technology can play an important role in climate change mitigation and adaptation. While some existing technologies, if diffused properly can bring down emission of greenhouse gases, there is potential for development of new technologies that can help further. However, development and diffusion of technologies are quite complex processes with several factors acting into it. One of them is of course the issue of intellectual property rights. Though climate change mitigation needs to be taken as a global challenge and acted upon decisively, it is now also recognized that some degree of climate change is going to take place, irrespective of the actions taken by the global community now. Moreover, such climate change is going to affect developing countries disproportionately. Thus adaptation to climate change is essential, particularly for developing countries. Like mitigation, technology can play an important role in adaptation as well. Needless to say intellectual property rights can have implications for adaptation technologies as well.

Given this, it is important to look into the domestic IPR regime, owing to the fact that IPR regimes of individual countries, while envisaged internationally, are given effect to and implemented in domestic jurisdictions. There is a need to examine these options and to evolve a detailed roadmap for making use of available options in the Agreement on Trade Related Aspects of Intellectual Property Rights TRIPS and beyond. The primary contention of developed countries in the climate change debate has been that weak IPRs in developing countries constitute the biggest barrier to technology transfer, though evidence bears out that developing countries have TRIPS-compliant regimes and some have even adopted TRIPS-plus provisions, owing to pressure from developed countries through Free Trade Agreements (FTAs). Also, the contention that IPR enforcement is slack in developing countries does not carry much weight.

The study proposes to analyse the domestic IPR regimes of India and compare with selected Asian countries with primarily two objectives: challenge the notion that developing countries do not have strong IPR regimes, along with examining the capabilities of the individual countries in exploiting the flexibilities provided under TRIPS, and resist attempts to avoid TRIPS-plus obligations.

Objectives

The specific objectives of the research will be to arrive at recommendations which enable developing countries to devise an IPR regime, which while honouring TRIPS obligations, are able to use its existing flexibilities in a manner which reconciles the twin goals of incentivising innovation and facilitating technology transfer, with the public good. These issues will be looked into with special reference to clean energy technologies and adaptation technologies in agriculture. The objective is also to build capacity of developing countries, India in particular, to exploit to their advantage the flexibilities and other options beyond TRIPs in resolving the IPR issues in technology transfer, and in influencing developments like the World Intellectual Property Organisation’s (WIPO) patent agenda, which is advocating higher IP standards.

Expected Outcomes

• Report on domestic Intellectual Property (IP) regimes of select Asian countries, which will look into the history of the IPR regime, domestic legislation, particularly the patent legislation and its compliance with the TRIPS, enquire into the use of TRIPS-plus measures and also have a broad understanding of enforcement issues in each individual country. With the help of case studies, it will also look into the problems faced by these countries in accessing technologies in the sectors of clean energy and adaptation technologies in agriculture.
• Set of recommendations to developing countries on IPR regimes for clean energy technologies and adaptation technologies in agriculture.