Renewable energy technologies could be the answer to the economic aspirations of the vast majority of developing nations without significantly adding to climate change. The developed world, though, still holds many of the aces when it comes to this technology.

One way of helping these developing countries achieve their goals without impacting adversely on the environment could be through treating green technology differently to other patentable technology.

At the heart of the debate are questions of cost and access to new technologies, with the former being of huge concern for some developing countries whose ability to fight climate change is constrained.

Alison Brimelow, the president of the European Patent Office, recently argued that the patent system needs to be adapted to foster innovation in the area of climate change. Brimelow questioned whether patent protection significantly adds to the costs of green technologies, and if access to them is severely limited by the patent holding companies.

She argued that patents should not be used to handicap or block others from using that green technology or be an obstacle to technological development. Instead Brimelow advocated that to avoid "patent thickets", owners could still be paid for the use of their patented green technology but should not be allowed to block it.

This approach would appear to drive a stake through the heart of the patent system, the underlying premise of the system being that a patent owner should be rewarded if they invest large amounts of time and money into developing new technologies and not have that investment diluted by others copying their innovations.

If the benefits are withdrawn, the incentive to invest could be weakened. This is significant due to the high costs associated with developing the durability of wind, wave and tidal technologies.

Further research and development is also needed to find technologies to solve the very difficult problem of how to safely deal with the disposal of nuclear waste following decommissioning of nuclear power stations.

It has been questioned whether the EPO, especially through its president, should lead thought and debate on this topic. Arguably, it is really the ambit of government, not patent-granting authorities, to take an active role in the political and social aspects of patent policy.

The issue of whether a particular category of "social" patentable technology should be excluded by law, has been dealt with before in the pharmaceutical drugs for Africa debate.

Here, so-called "morality rights" were driven by the policies of international organisations such as the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS).

A 2005 amendment of TRIPS allowed governments to implement steps to provide for compulsory licensing to ensure that developing countries have access to affordable medicines to treat HIV and malaria. The TRIPS Council is currently reviewing the Agreement to further extend its remit and this could have a dramatic impact upon many developing countries.

The WTO may want to actively consider the policy on patenting green technologies and regimes for the compulsory licensing of them to developing countries.

Initiatives such as the Eco-Patent Commons earlier this year, run by the World Business Council for Sustainable Development, have been launched to boost the spread of green technologies. Member companies such as IBM, Sony and Nokia have agreed to make available environmentally beneficial patents free of charge.

These will most likely be patents of little value or importance to their core business, such as methods for mobile phone recycling, but will these will still be of benefit to the environment. It is hoped that pledged patents will include those for clean water technology and energy conservation. Pledging patents is also beneficial to the donors themselves as a public relations tool as they are able to boost their green credentials at no real cost.

There is also the question of whether, when sharing green technologies with certain developing countries, patent owners are at risk of their technologies being "ripped off" in any event. The danger is that many developing countries lack a robust regime of IP protection.

It wasn't until relatively recently that China developed a national IP regime, and there are still questions over the extent to which protections are actually enforceable. The absence of stringent frameworks means that continued efforts at international harmonisation of IP regimes by bodies such as the World Intellectual Property Organisation will be key to green technology deployment.

This potential misappropriation is a risk in the area of Carbon Capture and Storage (CSS) technology. CCS is a process to derive clean energy by trapping CO2 from the burning of fossil fuels and storing it securely underground.

Many developing countries can't switch straight to renewable energy sources due to their rapid levels of industrialisation. It is estimated that by 2030, China's CO2 emissions from coal use will have doubled, so the use of CCS will be a way of allowing them to continue developing their economies while protecting the climate. Owners of CCS technologies may only be willing to make their innovations available to developing nations, even at a reduced cost, if they can be convinced that their IP rights will be protected.

This debate has opened up a series of interesting questions over the patenting of and access to green technologies. What is clear is that, in order to reap the potential environmental benefits, the right balance must be struck so that issue of IP does not compromise or inhibit the deployment of green technologies. This debate and the initiatives underway are a step in the right direction to helping solve some of the world's most pressing environmental problems.

Graeme Moffett is a Senior Associate specialising in IP and energy at UK law firm Shepherd and Wedderburn.

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