Intellectual Property and Climate Change
In climate politics, we are faced with the immense task of rapidly restructuring the global economy to function on an entirely different basis. Such a task is impossible without a near-complete technological revolution. We will need to efficiently produce and store cheap, clean energy; to engineer new, efficient machines for both personal use and industrial production; and to discover new modes of agriculture capable of feeding humans without destroying the earth. For this transformation to be effective, these new technologies must be implemented worldwide. Economic growth in the Global South cannot be based on the same mechanisms that brought material comfort to many in the Global North. Scaling the carbon-hungry economy of the United States worldwide would be a planetary disaster. As we build new economies in the Global South, we must build them on sustainable foundations, using technologies this are currently under development in rich nations. To achieve this, we will need to create a new mechanism for equitable sharing of technologies between the rich countries where the technology is developed and the poor countries where the technology is needed.
It should come as no surprise that the vast majority of research and development work occurs in rich countries. According to UNESCO, the top ten countries in research and development funding account for 80% of that funding. Thus, research and development spending is extremely concentrated to a select few regions and states. North America and Western Europe collectively represent about half of all such spending. Of course, innovation is not limited to formally-funded institutional research, but the scale of these enterprises means that much of the necessary industrial innovation required for a pro-climate transformation will likely emerge from a handful of relatively rich countries.
What is the impact of this imbalance? First of all, it means that new research and development is driven by needs and preferences of rich countries. Second, it means that the profit from green technologies reinforces global wealth inequality. Climate politics must confront the base imperialism underlying the carbon economy: the pollution emitted by the industrialized world over the past two centuries now chokes the decarbonization policy of developing states. As we see, green technology can serve precisely the same end, providing a mechanism by which developing countries must pay polluters (perhaps dearly) for the ability to continue industrialization. Thus, international capitalism forces countries to balance their desires to increase standard of living, including a better environment, with their ability to pay rich countries like the United States. No matter how the balance is struck, the technological and economic control exerted by rich countries could lead to environmental and human catastrophes.
We can prevent this by deconstructing the systems responsible for technological embargoes possible in the first place: intellectual property. Intellectual property, such as patents and copyright, allows rich companies to demand high prices for the use of their innovations, or to simply deny those innovations to others entirely by refusing to grant a license. Constructing an intellectual property leviathan at the international scale has been an active project of multinational corporations for decades now. One of the major goals of the now-dead Trans-Pacific Partnership trade deal was the strengthening of international intellectual property enforcement, making it easier for a company to exert legal muscle across oceans and borders. Under neoliberal capitalism, this is an inevitable outcome -- research and development is driven by profit incentives, not humanitarianism. One of the most effective ways to satisfy that motive is to expand the temporary monopoly protection granted by patents into other countries and other markets. Investors clearly believe in the potential returns of clean-energy technology, with venture capitalists putting five billion dollars a year to startups in this field. That money, however, is invested under the assumption that the technology developed with it will be controlled by the investors.
You might think that much research is undertaken by scientists at universities and federally-funded laboratories, outside this profit-maximization logic. In the US, you would be wrong. Nearly 70% of national R&D spending was due to private industry in 2016, an all-time high reflecting a rising trend of privatization. Nor is public funding any guarantee of public benefit. Since the passage of the Bayh-Dole Act in the 1980s, patent law expressly allows and in fact encourages publicly-funded research groups to seek private patents, with the government only having patent rights if the funder first waives theirs. Most large universities in the US now have “technology transfer offices,” which encourage academic scientists and engineers to convert their research into patentable products that the university can license out for profit. As a result, many fields of research have become a thicket of competing patent claims, as evidenced by recent high-profile cases around the gene-editing technology dubbed CRISPR. Between 1991 and 2014, the amount of money universities made from patent licenses increased by a factor of 17.
Patents have provided a robust system for encouraging technological growth. The 20th century saw both a robust patent system, with over five million US design patents granted, and rapid technological development in the United States. Indeed, under capitalism, this is how research must happen -- the promise of future gains incentivize private investment by owners of capital. Theoretically, a strong patent system is necessary in this situation, and we should be wary of undermining it and potentially discouraging investment in R&D. But a key feature of the patent system, even when it works on its own terms, is the temporary monopoly it grants in exchange for public disclosure. A patent in the US applies for twenty years, and the inventor must disclose all the invention details in the application. The climate does not have twenty years. We cannot wait until 2038 for new green technologies to become available and affordable worldwide. Therefore, we must be actively working on finding a new balance between the return on investments into research and the exclusionary rights that are granted to encourage that investment.
None of this is news to the people at risk -- technology transfer and intellectual properties have been key elements of international talks. The UN’s 1993 non-binding Agenda 21, a blueprint for sustainable development in the 21st century, included the recommendation of: “the undertaking of measures to prevent the abuse of intellectual property rights, including rules with respect to their acquisition through compulsory licensing.” Similar discourse has since surrounded climate talks, but neither the Kyoto nor Paris agreements contain any mention of patents or intellectual property rights. As such, despite widespread calls from poorer countries to incorporate intellectual property relief measures, no international framework for addressing this technical imbalance exists at the moment. However, the key role that technological advancement will play in averting climate catastrophe is reflected in the Paris Agreement’s five-year review structure, which recognizes that rapid technological progress implies a periodic re-calibrating of climate goals.
The remedy is clear: we must begin taking aggressive action to break patents that hinder a just transition away from fossil fuels, whether nationally or internationally. It is not enough to hope that the market incentives a patent provides will stimulate the correct technological development, because the timescale of patent protection is too long for the climate emergency. Action is required sooner rather than later. Nor can we rely on the rich to be generous. Elon Musk, in an era of sunnier media relations, announced that he would open Tesla’s patents and was roundly praised for it. We should view this as akin to all other billionaire philanthropy: a worthy gesture utterly too small to make the necessary difference. Unsurprisingly, Musk continued seeking patents on other aspects of his business, such as battery production, suggesting that his prior commitment to “open source hardware” was simply marketing.
Instead of relying on the benevolence of the odd tech baron, we can open patents directly. This both directly addresses the problems that arise when a patent is abused and discourages future abuse. There are two legal mechanisms which make this possible in the United States. The first is a term in the Bayh-Dole Act known as “march-in” rights. This gives the federal government the right, for publicly-funded inventions, to “march-in” and license the patent to other producers of its choosing. Thus, the patent exclusivity is broken. One condition which must be met to justify this action is that “action is necessary to alleviate health or safety needs.” Climate change is among the largest public “health or safety needs” which could possibly exist, so there is ample reason to believe that the legal basis for this type of patent seizure has been met.
The second legal mechanism is less direct, and lies in the law that defines the US government’s liability for patent infringement. Under US law, the remedy for a patent holder in response to government patent infringement is suit in federal court for “reasonable” compensation. Rather than prevent the use of a technology, all a patent holder can ask for is that compensation, which can be well below the amount they would have extracted from the market. This approach could be described as “asking forgiveness, not permission.” Rather than invoke any direct claim on the patent (as the government has for Bayh-Dole march-in rights), the government can use the technology immediately and pay damages later. Although this may imply that the government needs to directly be involved in the production, the law is clear that contractors or others acting with government authorization are protected.
The net result of either legal strategy is the same: the government is directly able to seize the relevant intellectual property and authorize its use by other parties. Turning this from a case-by-case process to a streamlined, uniform process involves creating a deliberative body which, in consultation with the populations and governments of poorer nations, identifies technologies with high potential whose deployment is hampered by intellectual property holders. (Note that this hampering can occur not just due to intransigent rights holders, but due to complicated situations, as in the CRISPR case, that make it unclear who actually holds the rights. Government patent use allows us to cut these Gordian Knots.) The agency responsible for this identification would select patents which are counter-productive to climate development. After identification, a compulsory license can be issued to appropriate industrial actors. These could be either private companies in the US which are willing to work on lower profit margins, similar to the pharmaceutical case of generic drug manufacturers, or companies overseas. The latter solution may be preferable, as it encourages the growth of industries within the other country, but the decision can be made based on the case-by-case evaluation of capable contractors.
One risk that must be managed is that, as discussed earlier, profit is the incentive that drives private capital into research. An overly aggressive patent-breaking regime could lead to restrained technological development, which would be counterproductive. Ultimately, this contradiction is everywhere in the entire patent system. Patents laws under capitalism must be balanced between extreme enforcement, which stifles the use of technology, and extreme laxity, which provides no incentive for private capital. As long as private capital remains the dominant source of research money, an immediate strategy which focuses on particular technologies and particular bad actors can both help the climate and proactively discourage abusive patent behavior.
In some ways, this conflict of interests resembles the recurrent debate around intellectual property and pharmaceuticals, especially when we consider the crisis that emerges when drug patents are purchased and then used to dramatically raise prices. In response to these abuses, many have requested that the National Institute for Health invoke its patent-use rights to undermine this exploitation. However, the NIH has consistently declined to use march-in rights in response to requests for price control or to increase access to drugs -- indeed, no federal agency has ever invoked Bayh-Dole march-in rights, despite this measure in theory being the counterbalance to allowing public funds to produce private intellectual property.
Perhaps the idea of opening patents seems obviously impossible under a government as protective of corporations as ours. This type of expropriation, after all, cuts right to the profit motive that propels capitalism. However, forcible government patent use has been deployed by the US government, just not for the benefit of the sick. The Department of Defense has invoked government patent rights twice, once for the production of night-vision goggles it needed during the first Gulf War and once for the production of lead-free “green bullets.” Although private companies sued over the use of these technologies, the military was able to successfully invoke its government patent use rights.
It will come as no surprise to readers on the left that the American government prioritizes extreme military spending over healthcare and climate, but we ought to view this not as a depressing anecdote but a possibility. What we do for war, we can do for climate -- taking the precedent set by the military as a guide. We must be advocating for climate policies that are as bold as the moment requires, as groups like The Climate Mobilization demand. Leftist rhetoric (such as that of Alexandria Ocasio-Cortez) calls for a “Green New Deal,” promising a mass mobilization, green jobs, and economic progress reminiscent of FDR-style social democracy. Others, such as The Climate Mobilization itself, invoke World War II, another time in which a civilizational crisis demanded economic and political reorientation, and speak about the necessary climate mobilization in those terms.
All of these are fine historical precedents to invoke. However, we must be careful to avoid a trap in which climate action is limited to massive public expenditure; although expenditures are key. We should also be willing to rethink our economic relations and rearrange our priorities of rights and privileges, such as private property and intellectual property, to the same degree that we would if we were mobilizing for war or economic recovery. That means rethinking the monopoly of the patent. It means thinking about how technological capability created by our companies and research institutions is distributed, and whether active measures are needed to redress it.
Clearly, the legal framework exists for international technological solidarity. What is lacking is the political pressure to make this framework real. At first approximation, it will require what all climate politics requires -- the construction of a popular movement that holds governments accountable for climate inaction and demands immediate progressive strategy. For international patent-breaking, we must also ensure that this movement is devoted to internationalism. No country can focus only on its own climate policy, ignoring the economies of other countries worldwide. We should use this to argue that we have an obligation to use our scientific capacity for the benefit of the planet, and that this is incompatible with the current operation of the patent system that prioritizes short-term profit over rapid proliferation of green technology. One of the most interesting and relatively untapped political forces that could make this change is an organized movement among scientists, engineers, and other technical workers. These workers, who produce technology both in terms of abstract knowledge and the physical artifacts themselves, rarely own the intellectual property they produce. In recent months, organizations like Science for the People and the Tech Workers Coalition have begun to organize these workers around the ethical uses of information technology, leading companies like Google, Amazon, and Microsoft to answer for their cooperation with the military or ICE. If these workers can encourage a renewed radicalism in open-source design, they could form the nucleus of a new type of research infrastructure which insists on its efforts benefiting the earth, rather than the bosses.
Patent-breaking alone won’t fix climate. It’s an ecomodernist fallacy to believe that if only we invent the right device, we can solve the climate crisis. Patent-breaking done today, however, accomplishes two goals. First, regardless of our ideals, there is a physical world we must act in now. We must act soon to avoid “technological lock-in,” a pattern where our investments today set us on courses for the future, such as the construction of pipelines that imply future natural gas production. Every green technology or sustainable infrastructure we build now buys us more time for growth and progress as as we work towards full decarbonization. Second, social transformation begins by bridging the system we have now, where research is done to maximize the market returns to a company, with a system where research can be done to benefit humanity with an emphasis on what good a technology can do rather than what it sells for. It’s a bridge whose foundations lie in current law, and whose mechanisms we can implement with a combination of popular pressure to act on climate, international demands, and the support of technological workers themselves.
In climate politics, we must act on every time scale at once: we must think about emissions in the next year while simultaneously restructuring our economy over the course of the next thirty or forty years for complete decarbonization. The climate crisis necessitates immediate, actionable policy that leads naturally into a long-term decarbonization plan. Systems of scientific solidarity like patent-breaking can form the basis for moving beyond the original frameworks of intellectual property. If we take climate mobilization seriously, these are the readily-deployed initiatives and plans which we must include in our first volley of actions.
Zachary Eldredge is a Ph.D. student in physics at the University of Maryland. He is a member of the Metro DC chapter of Democratic Socialists of America, where he works on neighborhood organizing and climate justice.