By: Magdalena Almonte and Aidaluz Pimentel.
Summary:
Eco-innovation, or innovation aimed at reducing the impact on the environment, is a global priority today in order to mitigate the harmful effects caused by industry, with industrial property playing a major role in encouraging the creation of sustainable inventions, disseminating available technology, and ultimately providing a greater stimulus to the proliferation of investment and application of green technology.
Introduction
Industrial property, and specifically the patent system, has been a catalytic tool in the industrial development achieved by human beings throughout history, promoting creations and inventions product of the human intellect that have transformed our way of life: the light bulb, the steam engine, the printing press, the telephone, the automobile, vaccines, wifi, to name a few.
From its beginnings in the 1400s to the present day, the patent has emerged as a public policy with the aim of promoting the creation and transfer of new technologies and the exchange of knowledge, through the disclosure of all the details of an invention, in exchange for a privilege in favour of its inventor: an exclusive right of exploitation for a limited period of time. This right provides several benefits: a) the exclusivity itself, which implies a negative right that prohibits third parties from using the invention without the authorisation of its owner; b) avoiding and pursuing infringement by equivalence or imitation; c) compensating expenses and investment in research and others; and, d) the possibility of disposing of the invention either through the total sale or licensing of the exploitation right and/or the formation of strategic alliances. Once disclosed, third parties could use the patented invention to make new creations or improvements that would also be recognised with the vocation to be exploited once the exclusivity term of the invention taken as a reference has expired.
In this way, the patent has served as an incentive for investment in research, development and innovation, commonly referred to as R&D&I, a growing reality in all economic sectors around the world and at all levels, from large companies to SMEs and start-ups, achieving process automation, greater efficiency of human capital, cost reduction and simplification of numerous business models.
However, although man has achieved an enormous development in the use of innovation as a competitive advantage, he has also made an irrational and unsustainable use of natural resources, causing often irreversible consequences in the environment; from polluting waste, water pollution, soil degradation, imbalance of ecosystems, and climate change that threatens the very existence of humanity. In this regard, the World Health Organisation shares that up to 23% of deaths globally are related to the environment[1] and the environment is shown to influence more than 80% of cases of serious diseases[2]. Therefore, the challenge today is to maintain the incentive for innovation as a factor for social and economic growth through industry and technology, but this time achieving sustainable development with the use of mechanisms that are favourable or at least mitigate damage to the environment.
Eco-innovation and green patents
Efforts to protect the environment are not new. For several decades, states have sought solutions based on environmental legislation. However, these do not facilitate sustainable development as such, but rather act as a mechanism for controlling the management of natural resources by monitoring their use and sanctioning those involved, whether for attempts or infractions committed. It is clear that these policies, although necessary, do not seek sustainability of industrial development; rather, they limit it.
As the problem has become increasingly acute, the search for solutions has had to focus on the heart of the problem itself: innovation. Eco-innovation”[3] refers to the creation and/or application of new knowledge to increase industrial production by means of products and processes that reduce environmental impact[4]. In this way, with a change of focus during the innovation process, the aim is to replace current products and processes with others that are more efficient in the use of natural resources.
Alongside eco-innovation, the patent system is once again playing a leading role as an incentive mechanism for innovation with the benefits mentioned above and a valuable database for the exchange of knowledge. However, for these purposes, and in view of the urgency of the situation, over the last few decades, countries such as the United Kingdom, Australia, the United States[5], Israel, Japan, Korea, Canada, Brazil and China, have lightened the ordinary process of granting patents by creating a special one for the benefit of inventions resulting from eco-innovation, which they have commonly called “Green Patents”.
The various green patent processes have some common features: a capped number of applications, in order to avoid a considerable backlog in the ordinary patent process; a drastic reduction of examination time; a targeted focus on priority fields of application[6]. In this way, applications that usually take years between formal, substantive and public examination have in some jurisdictions been granted in months. This acceleration helps the invention to be exploited with equal speed and/or applied in the marketplace which benefits both the environment, the community, industry and the inventor/owner who can be rewarded for his or her creation more quickly; as well as dissemination in a short period of time for the stimulation of more green technology. Although Green Patents have the benefit of a more expeditious process through the “fast track program“, the basic requirements for the recognition of the invention remain unchanged: world novelty, inventive step and industrial applicability.
These are commonly awarded for the benefit of inventions created from clean technologies applied in priority fields such as: alternative energy, transport, energy conservation, waste management and agriculture, areas that are often responsible in one way or another for climate change, although each country has prioritised those aspects that are vital to the specific environmental problems they face.
Furthermore, this sub-classification has allowed entities such as the World Intellectual Property Organization (WIPO) to develop tools to maximise the scope of green patents. WIPO, for example, has a search engine for patents related to sustainable technologies called IPC Green Inventory[7]; it also has a platform called WIPO GREEN, made up of different actors from the public and private sectors, professionals and international experts on green innovation, through which it basically connects those who develop sustainable technologies with those who seek to use them. Databases of this type seek to disseminate patent-protected technological developments and thus facilitate technology transfer or the development of new technologies. In addition, they allow the measurement of quantity, utility, licensing, existence in specific technological fields and other data of relevance to both the developer and the implementer. In fact, green patents have been considered one of the best indicators for measuring environmental innovation.[8]
A challenge for the Dominican Republic and its participation in the region
For the Dominican Republic, like most Caribbean and Latin American countries, in spite of having modern environmental regulations, the effective implementation is a pending assignment from different spheres. From the Dominican State itself, it is used in total independence from the work of public entities. On the other hand, citizen responsibility and private sector involvement are required for an effective treatment of the existing environmental crisis, but the will of both has been lacking. Paradoxically, however, MYPIMES and enterprises, often led by young people, have shown greater sensitivity to the environment, often through empirical knowledge, contributing materialised ideas, some of them their own, others inspired by what is happening abroad. This impact can be highly profitable for the state, if it focuses its public policies on a few essential aspects: a special patent system, investment in R&D&I, large-scale socialisation of regulation and legal incentives. Despite the fact that intellectual property from its origins, through national legislation and international agreements, is a driver of invention by nature, its mere application has not been sufficient. Thus, in order to stimulate research and development, it is necessary to create greater incentives than those currently available.
This translates into challenges and opportunities, both to promote the creations of the human intellect at the national level, as well as to contribute to environmental sustainability. The opportunities for the Dominican State to improve are varied. In order for our country to embark on the global goal of sustainable development[9], the Dominican State could implement a programme focused on incentives for green inventions, both nationally and internationally produced. Our country certainly has a very low rate of local innovation in general and in comparison with other countries in the region. However, the programme would contribute, not only in relation to local innovation, but also to the respect and valuation of international innovation, allowing to attract more foreign investment, in addition to the legitimate use of imported innovation by the actors of the national economy, such as the verification of available technology due to the expiration of the exclusivity period, such as taking the knowledge for the improvement or development of new technologies.
Having an adequate regulatory framework is essential to enable right holders to rely on IP legal safeguards, and thus to collaborate and commercialise their inventions for the benefit of the environment. To this end, and as we have noted, the reduction of deadlines will have to be assessed, which in turn will probably entail more staff and thus mitigate the overall backlog that may arise. Secondly, verification of fees, at least for the local innovator, requirements and number of claims allowed. All of the above with a view to facilitating the green patent registration process.
For its part, in the Dominican Republic, much needs to be done to promote research at all levels in order to prepare experts with the capacity to innovate. Talent needs to be oriented towards research into new technologies, machinery and formulas that are useful for exploitation in industry while safeguarding the environment. Investment in R&D&I is imperative. The vision is to promote inventions that stimulate economic development and increase business competitiveness, with the least impact on the environment. The involvement of research centres led by leading universities is one of the easiest ways to get started. But these strategies alone are useless; state intervention is required. So state investment in education must increasingly be directed towards innovation rather than traditional disciplines, as well as access to the internet which allows a greater view of the outside world. In fact, we can see how leading and fast-growing emerging economies have excelled with continuous public policy incentives for technological innovation.
There are already some legal incentives that should be socialised. For example, Law No. 20-00 on Industrial Property provides for a considerable discount on fees for the benefit of low-income applicants, reducing them to 10% of the current amount established by resolution[10]. Likewise, our tax legislation establishes that research and experimentation expenses are deductible from income from business activities at 100%[11]. The same is true for salaried individuals, liberal professionals and independent workers with their own educational expenses or those of their dependents in accordance with the Law on Deduction of Educational Expenses No. 179-09[12]. The lack of education in technical and scientific subjects is a reality that affects Dominicans and is reflected in their inventive creativity in all areas, including green inventions.
The clear and precise socialisation of the usefulness and advantages of industrial property is vital and must continue unceasingly in all available forums. It cannot be encouraged under precepts that are unknown to many. Moreover, the very lack of knowledge of the system means that many innovators do not comply with the minimum requirements given by law. Sometimes, they disclose or publish their innovations without taking into consideration the deadlines given by law for the granting of protection and guarantees, thus entering the state of the art.
Many confuse innovation with invention, so even if an innovation is very useful in the marketplace, this does not mean that it is considered an invention and therefore its means of protection is through patents. Other protection regimes are available, albeit with varying degrees of protection. Given that very few local efforts in developing countries relating to environmental innovation are patentable[13] as an invention, let us not forget to include two equally important figures with even greater opportunities for development in the country, such as the utility model, for “any new form, configuration or arrangement of elements of any art, or any new form,configuration or arrangement of elements of any art, or any new form, configuration or arrangement of elements of any art, or any new form or arrangement of elements of any art”,configuration or arrangement of elements of any device, tool, instrument, mechanism or other object, or of any part thereof, which allows a better or different operation, use or manufacture of the object incorporating it, or which provides it with some utility, advantage or technical effect that it did not have before[14]“; and on the other hand, the industrial design, defined as “any meeting of lines or combination of colours or any external two-dimensional or three-dimensional shape, which is incorporated into an industrial or handicraft product[15]“, which, although the latter is essentially ornamental, can play a role in the invention that is the product of green innovation, making its protection attractive.
Conclusion
Indirect benefits from the use of environmentally beneficial technology involve the enhancement of environmentally friendly business models. The challenge facing inventors is to find solutions that are adapted to the needs of markets, made up of economic agents that are constantly renewing themselves in order to position themselves in the market to generate economically and environmentally sustainable benefits. This is a win-win model, which encompasses inventions for polluting waste and waste management, improved energy storage, clean transport, sustainable agriculture, pollution control, recycling systems, alternative or renewable energy, among others. One success story has been the patents for electric cars, which substitute fuels that are highly harmful to the environment, due to their massive use on a global scale.
However, all these measures are fruitless if there is no real will on the part of the state to pursue sustainable growth, of business to significantly reduce its impact on the environment, and even of the general population to consume products that are committed to the common cause. The reality is that green inventions often turn out to be very costly due to the high economic investment they entail or because they increase production costs, making their application in industry or their consumption discouraging. Therefore, although there are many patented green innovations, many expire or are abandoned without reaching their market debut.
The ultimate purpose is to achieve a correct management of intellectual property assets, both locally and internationally, which in turn makes it possible to create competitive advantages in the markets, safeguard businesses, protect formulas, machinery, procedures, products and services, improve the country’s position at the inventive level and, incidentally, provide environmental solutions for the planet. All of this redirects the objective achieved throughout history by means of patents, utility models and industrial designs to the benefit of the environment.
Bibliography
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[1] World Health Organization. “Impact of the Environment on Health“. Accessed 16/02/2020. Available at: https://www.who.int/quantifying_ehimpacts/publications/PHE-prevention-diseases-infographic-ES.pdf?ua=1
[2] World Health Organisation. “Exposure to environmental hazards causes nearly a quarter of all diseases“. Press release, accessed on: 14/2/2020. Available at: https://www.who.int/mediacentre/news/releases/2006/pr32/es/
[3] The terms green innovation, environmental innovation or related terms are also used in the literature.
[4] United Nations Economic Commission for Latin America and the Caribbean. “Eco-innovation and green production” A policy review of Latin America and the Caribbean. Available at: https://repositorio.cepal.org/bitstream/handle/11362/40968/1/S1700072_es.pdf P. 18.
[5] The US closed the fast track programme after receiving 3,500 applications.
[6] Antoine Dechezleprêtre. National Intellectual Property Office. WIPO Magazine. “Accelerated ecopatent application“. 3/2013. June 2013. Accessed on date: 15/2/2020 Available at: https://www.wipo.int/wipo_magazine/es/2013/03/article_0002.html
[7] World Intellectual Property Organization (WIPO). IPC Green Inventory. Accessed on: 20/2/2020. Available at: https://www.wipo.int/edocs/pubdocs/en/patents/434/wipo_pub_l434_09.pdf
[8] Sebastián Roviera et al. Eco-innovation and green production: A review of policies in Latin America and the Caribbean. ECLAC. Santiago de Chile, 2017, p. 68.
[9] Among the United Nations Sustainable Development Goals is Goal 17, which corresponds to the Partnership to Achieve the Sustainable Development Goals. Available online. Available at https://www.undp.org/content/undp/es/home/sustainable-development-goals/goal-17-partnerships-for-the-goals.html
[10] Dominican Republic. Law No. 20-00, of 18 April 2000, on Industrial Property. G.O. No. 10044, May 8, 2000. Art. 10.
[11] Dominican Tax Code, Article No. 287.
[12] Law on Deduction of Educational Expenses No. 179-09, Article 3.
[13] United Nations Economic Commission for Latin America and the Caribbean. “Eco-innovation and green production” A review of policies in Latin America and the Caribbean. Available at: https://repositorio.cepal.org/bitstream/handle/11362/40968/1/S1700072_es.pdf
[14] Dominican Republic. Law No. 20-00, of 18 April 2000, on Industrial Property. G.O. No. 10044, May 8, 2000. Art. 49.
[15] Ibid. Art. 54.
