Are Patents Good for Climate Change

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Alessandro Delfanti interviews John Wilbanks: are patents good for climate change?

John Wilbanks ([http://sciencecommons.org/about/whoweare/wilbanks/[) is the Chair of the Science Commons ([http://sciencecommons.org[) project at Creative Commons. The following interview (originally published in italian by Il Manifesto) is about the role of intellectual property rights in the climate change issues that are going to be discussed in Copenhagen.


What is the main issue related with IP at stake in Copenhagen's COP15?

There are a lot of issues at stake. The one that I am tracking in particular has to do with the idea that compulsory licenses, similar to those occasionally used for drug patents licensing, might be on the table for clean and green tech. The US Chamber of Commerce has launched an effort to forestall this called IDEA (http://www.uschamber.com/press/releases/2009/may/090520_idea.htm). Obviously, our position is that maximalism in IPR rarely solves the problems it claims to solve, and that a balanced middle ground is the best system to foster true innovation across the disciplines involved.


Why should we consider green tech as a commons? Is there something special in this sense, some difference from other technologies and scientific innovation fields?

I would propose that the reason we should consider green tech as a commons is that we are going to need a large number of technologies to interoperate with one another to achieve our goals of carbon reduction, energy efficiency, waste reduction, and new materials design. These are different fields with different players. If all the core technologies carry a high tax price it's going to be punitive to stitch them all together.

The Internet shows us how having a "stack" of core open technologies can create massive - unprecedented - private value, so this isn't about giving things away. It's about understanding that some of the principles of interoperability scale from the technical network to the manufacture and design space. What we do not want is to replicate the situation in airplanes design that existed for many years in which one company owns the engine, another the wing, a third the wheels, a fourth the gadgets in the cockpit - and none of them could interoperate to let the plane come forth. When that happened, the US government had to step in and clear the field. We'd rather this interoperability to happen now rather than waiting for the problem to manifest itself as badly as it did in airplanes. The issues we face are too pressing to wait.

This is of course for the technology that's already been invented. It's not being as widely used as it could be, or recombined and reimagined. There's an entire other issue of the spaces where we need to do real science discovery - climate change modeling, battery development - where there is no difference from what we do in drug discovery. That's a space where we need the whole spectrum of the commons, from open access to journal articles to access to data to free software and more, to spur paradigm shifts, faster and faster and faster, as well as empirically justified systems of technology transfer and development. We can't stick to systems that worked twenty years ago just because we think they work now - whether it's a commons or a control system, everything we do in tech transfer should be just as data driven as the science.


Science commons decided to cooperate with some companies in order to create an experiment of sharing: greenXchange ([1]). Do you already have got any results? What do you expect from this project?

We have a lot of results in design space. GreenXchange was born in conversations leading up to the World Economic Forum at Davos in 2009, and will launch in 2010. By using a set of standardized, free, legal tools, patent owners can make portions of their intellectual property portfolio available under a set of terms between the current choices of "all rights reserved" and "no rights reserved." Under GreenXchange patent licensing tools, patent owners open up a wide swath of technologies for research, development, and innovative commercial uses. Patent users receive the rights they need to innovate, and patent owners receive credit for their works - as well as the option to receive annual licensing payments.

The idea is that the existing patent system protects a massive amount of uses that fall outside a company's core business space. So, a company like Nike might take a core technology like the airbag and make it available to truck tire manufacturers, leading to less rubber in landfills, without giving up their protection in shoes. Most of the innovations are going to happen in unexpected places, and be driven by unexpected people - we've got to get those innovators the freedom they need to operate. In terms of results, we are still very much in design space. We're working with technical partners, legal partners, our founders, and more to get ourselves to a launch moment at the end of January 2010, at the next Davos World Economic Forum.


What's the role of companies in open innovation? Can you give some example of working experiences of "green" innovation using open tools?

Different than free software and free culture, which depend on copyrights licensing, patents are the key to open innovation in the clean and green space. And patents cost a lot of money to acquire and protect, whereas copyrights come down for free when the moment of creation happens. That means that most patents are held by those who can afford the up front cost of filing and prosecuting - companies and other institutions. That means that companies are at the heart of open innovation.

There's a great patent sharing effort called the Eco-Patent Commons, which has been around for a few years, and is an inspiration to our system. But we think we can add to the total number of patents available with our approach, complimenting the EPC.

In terms of working examples, most of them actually fall into the user-driven innovation category rather than the open innovation category in clean and green tech. So, you get the construction of windmills ([2] and [3]) using local materials, and so forth. But the open innovation stuff is just facing very high transaction costs. GreenXchange is one of several efforts to bring those transaction costs down enough to let the innovation start to flow in the system.


What's the role of bottom-up, user-led innovation? Is there something interesting happening at that level? You think it will be more important in the future?

See the above links. I think this is going to be tremendously important in the short and the long term. There are billions of beautiful minds worldwide with the motivation to create systems that make a difference locally. As they begin to be connected, to read open access journals, to join the Maker culture, they'll make an enormous impact. Part of the idea of GX is to build a set of channels for companies and insitutions and people to connect to each other over time.


Can you see a link and a possible alliance between developing countries' needs and resources and rich countries' P2P, open access, open source movements?

I would certainly hope so. These are all part of the natural constituency of the commons. It's sort of like the Internet in that aspect - the Internet is an alliance between all of its users, bound together by common, open, standard principles of technology. The commons should be the same, but driven and structured around knowledge. Patent licenses are a piece of that, copyright licenses for culture and software are part of that. Content is a part of that, whether narrative or software. The public domain is at the fundamental core, populated by past-copyright works and a vast and exploding space of free data.

This should all be coming together into a single, interoperable space. But it does also mean that we have to judge the "free" tools just as closely as we judge the "closed" tools - we have to avoid the temptation to view freedom as something we construct with the license and the contract. Sometimes freedom comes from the elimination of control entirely, as we believe is the case with data.


In green/carbon free technologies, a major fraction of the patents' pool is held by Usa and Europe. Does this slow down innovation on a global scale?

I don't know. There isn't a lot of data on this and I like to be data-driven. I do know that China is rapidly filing on technology in this space (the number I keep hearing is an 8 to 1 advantage for China over the USA) and I can imagine that will significantly change the dynamic over time.


Are open licenses enough for the developing countries to innovate in this field?

As I said above, I don't think so. I think they're one piece of the commons ecosystem. Just as the Internet is composed of a myriad of different protocols, from core ones like TCP/IP to more obscure ones, so is the commons built of different tools and systems. The open patent licenses are just one of the layers. Access to theory, access to experience, access to data, access to tools and fabrication, these are all essential complements to the freedom to operate layer.