Green tech revolution requires thought to be given to IP

However, while EU and UK policy makers are getting behind the green tech revolution, businesses must navigate a complex intellectual property (IP) rights framework to extract the greatest value from their innovations in this developing market.

Green tech and the EU's IP action plan

In November 2020, the European Commission set out its action plan on IP which set out measures the Commission has proposed to improve the IP framework in the EU. One of its central priorities is to ensure that EU innovators have access to fast, effective and affordable protection tools.

The full range of IP and related rights are considered in this context, from patents and trade marks to designs, copyright and neighbouring rights, geographical indications and plant variety rights, as well as trade secrets. The measures proposed are designed to help entrepreneurs and businesses leverage their core business assets, including as they relate to green innovations.

According to the Commission, the EU has the means to remain competitive in the global race for technological leadership. A robust IP framework is a crucial driver for leadership in the development of new technologies with the potential to change how communities and businesses live and work.

In this respect the EU is an attractive venue for businesses on the basis that a single application mechanism enables right holders to enforce rights including trade marks, designs and plant variety protection across Europe.

For any technology, a robust regime for the enforcement of IP rights provides valuable protection for new and emerging technologies. That regime is necessary to ensure that the investment required to design, develop and commercialise that technology is protected either for a certain period of time, or in some circumstances, in perpetuity, provided that IP right is maintained.

Crucially, the action plan seeks to ensure that the IP framework is fit for the digital age. This is especially important for rapidly developing technologies such as green technologies and artificial intelligence (AI). Competitive advantages in the market can be gained and rapidly lost within a relatively short period of time in the event that IP protection is weak or not fit for purpose.

Support for green tech innovation in the UK

Like its EU counterparts, the UK government has identified the potential of green tech.

In a September 2019 paper, the Department for Business, Energy and Industrial Strategy (BEIS) highlighted AI and clean technologies as two of four global challenges which will transform the future.

With this focus, we anticipate substantial growth and investment in these areas. There is already significant evidence of businesses, research institutions and the public sector exploring the potential of clean technologies and the development of green IP as a consequence.

The UK presents an attractive venue for the development of green technology and businesses and the public support a green economic recovery following the Covid-19 pandemic.

Brexit presents a challenge in respect of IP rights, however. For instance, new trade marks or designs registered in the UK are no longer applicable in the EU market and vice versa –separate UK and EU applications are now required if businesses wish to obtain protection for those rights across both jurisdictions. Conversely, the patent system was largely unaffected by Brexit.

However, some IP rights do subsist automatically, such as copyright or certain trade secrets. This means that businesses need to be aware of their options in relation to the commercialisation and any necessary registration of their IP early and ensure they have appropriate strategies in place to ensure that any green IP developed is identified and protected in core markets.

The potential of green IP

The value of green IP will only continue to grow. It presents enormous opportunities and has the potential to address real and pressing challenges that society is facing. By protecting the investment made in green innovation, IP rights also enable that investment to be directed back into the research and development of further clean or green technologies.

Co-written by Anna Harley of Pinsent Masons.