Green patents: time for India to introduce them?

Nicolas Gutierrez

IP Advisor - India IP SME Helpdesk

As the 2021 United Nations Climate Change Conference (more commonly known as COP26) came to a close in Glasgow, sustainability and the green movement briefly came back under the spotlight, having being pushed aside by the pandemic the world has been battling for the past year and a half. It is noteworthy that the first section of the “Glasgow Climate Pact”, the official communication agreed on by all countries participating to the Conference, opens with a reminder of the importance of scientific innovation as one of the main drivers towards a more sustainable and environmentally-friendly future. As such, it is stated that policymaking should be driven towards facilitating and spurring the development of green technologies for effective climate action. Promoting green technology is essential to the development of the goal of “green economic growth”, i.e. growth which is no longer based on highly-polluting manufacturing.

There exist many ways in which policymaking can impact innovation and encourage research to be focused towards greener solutions to our current ways of life. Financial incentives under the form of public financing of R&D projects, prizes, or tax breaks are amongst the most potent and obvious ways in which a government can encourage scientific and industrial exploration in a specific domain. One other leverage which is often less talked about, but which can act as a particularly potent incentive, is that of facilitating the road to patenting inventions which are directly related to renewable, sustainable or green technologies.

Often, EU Small and Medium Enterprises are deterred from patenting due to the costs involved. Patents are indeed costly and long to obtain, which in itself can act as a strong deterrent. And after all, if the patenting process is seen as too costly, slow, and complex to a small company, it might decide it is not worth pursuing this route. This disincentivising impact can have drastic effects on the nature of research that companies will then engage on: policymakers must therefore think of indirect financial incentives to promote R&D into green technologies. Facilitating the patenting process is of them.

Many countries have already reached this conclusion, and offer preferential treatment to patent application for so-called “green patents”. These include patents for technology concerning waste management, alternative energy sources such as wind, geothermal, solar, tidal energy or biomass. There actual exists an official by the International Patent Classification Committee of green technologies, including all forms of alternative energy production, energy conservation, transportation and agriculture forestry.

Across the world several patent offices have decided to facilitate the obtainment of green patents by setting up accelerated procedures for these – cutting by sometimes more than half the usual time between the filing of the application and the issuance of the patent certificate. The first country to set up such “fast-track” procedure to promote the patenting of green technology was the United Kingdom back in 2009. Since then, many other jurisdictions such as Australia, Israel, Japan, the US, but also China and Brazil have implemented similar accelerated procedure, sometimes also offering lower filing fees for such patents. It is not surprising to find these countries amongst those with the highest number of “green patents” registered in the past decade. Furthermore, these countries have not only found an increase in green patents filed, but also observed as these “fast-track” solutions contribute to the solution to the current backlog which many patent offices across the world experience.

So what about India?

Currently, India has not set up any specific policy to facilitate the patenting of green technology. Innovations in the field of renewable energy or waste management for example have to follow the same procedure as all other patents applications, which can lead to years of waiting, costing money not only in the payment of official fees and associated attorney fees, but also in the opportunities lost by companies unable or unwilling to fully utilise the commercial potential of their innovations until the patent has been granted. Additionally the official costs alone are enough to deter many companies with smaller purses from pursuing patenting altogether, thereby disincentivise these smaller companies – which constitute a large base of the innovation world – from prioritising research in these fields.

Considering the high potential which the country has demonstrated in the field of renewable energy and sustainability, one may argue that this option could spur a growth in green innovation in the country. As the country’s economy has grown in rapidly in the past few decades, so has its demand for energy resources and infrastructures. India is the 3^rd largest consumer of electricity, but also the one of the largest producers of renewable energy in the world. It has been ranked as the 3^rd most attractive market for renewable energies in the world by a private study due to the privileged situation it finds itself geographically with high amounts of sunshine, mountains with powerful rivers, and large expanses of sea water.

As part of the Paris Agreement India promised to raise its level of green energy to 50% of its total consumption by 2030. In order to achieve such results, a push to local research on green energies will be necessary. After all, the more people are encouraged to look for solutions in a specific field, the more likely is it that these solutions are found. Currently, 15% of India’s high-value patents are related to green technologies, a number which could potentially be much higher should emphasis bet put on encouraging green patents.