Intellectual Property and Climate Change

Intellectual Property and Climate Change

Inventing Clean Technologies

Intellectual Property and the Environment series

Matthew Rimmer

In the wake of the international summits in Copenhagen and Cancún, there is an urgent need to consider the role of intellectual property law in encouraging research, development, and diffusion of clean technologies to mitigate and adapt to the effects of climate change. This book charts the patent landscapes and legal conflicts emerging in a range of fields of innovation – including renewable forms of energy, such as solar power, wind power, and geothermal energy; as well as biofuels, green chemistry, green vehicles, energy efficiency, and smart grids.

Chapter 6: ‘Clean Energy for America, Power up America’: Patent Law and Compulsory Licensing

Matthew Rimmer

Subjects: environment, climate change, environmental law, innovation and technology, technology and ict, law - academic, environmental law, intellectual property law


Historically, the United States has utilised compulsory licensing and other flexible provisions to provide access to patented inventions in a range of contexts, including the preservation of competition in the marketplace,1 the promotion of environmental protection, and providing access to energy. The Clean Air Act 1963 (US) (CAA)2 has a number of compulsory licensing provisions.3 Andrew Torrance reflects that ‘Congress passed the Clean Air Amendments of 1970 (US) to the Clean Air Act in large part “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”’4 As part of the package of amendments, there was a provision to allow states to take compulsory or mandatory licences to air pollution abatement technologies, so that they could meet federal air quality standards. 42 USC Sec 7608 provides for the mandatory licensing of air pollution prevention inventions under Title 42, the Public Health and Welfare under the Clean Air Act. Notably, in the context of environmental protection, § 308 of the Clean Air Act 1990 (US) provides for mandatory patent licences. The Environmental Protection Agency (EPA) has explained the intent and the nature of the provision: 1 United States v. General Electric Company 115 F. Supp. 835 (DNJ, 1953); and revisited in United States v. General Electric Company 358 F. Supp. 731 (DCNY, 1973). 2 Clean Air Act, Pub. L. No. 88-206 77, Stat 401 (1963). See also Air Pollution Control Act Pub L....

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