Innovation law and stimulating green technologies to tackle climate change
This course could not come at a more appropriate moment.
Suffering both a climate and an energy crisis, societies need to
find ways out of the 19th and 20th century
reliance on fossil fuels and ignoring the need to adjust many
aspects of our current way of life to tackle climate change.
Admittedly, climate change and sustainability have gained much
attention in the last decade. Surprisingly, much less attention is
given to innovation and climate change. Arriving at the climate
change targets set out in the Paris Agreement under the UNFCCC
(United Nations Framework Convention on Climate Change) and the
recent Glasgow Climate Pact will not only require huge investments,
but in particular also much needed innovation. And more recent
events such as the invasion by Russia into Ukraine and the ensuing
energy crisis show very clearly that we need to have more
sustainable energy sources and supplies. All these things will
equally require massive investments and much technological
The problem with most technological innovation in the above
areas is that it is and will remain very expensive to develop, and
it is inherently risky, as success is not always guaranteed. Absent
any form of exclusivity or other incentive, developers of green
technology will not be motivated to invest in such technology. But
exclusivity also has drawbacks, as it limits or excludes
competition, which in turn may have unwanted consequences.
One of the main questions to be analysed in this course is which
innovation incentives provide the best potential prospect of
creating the needed innovation in technologies that can tackle
climate change. The main goal of this course is to introduce
students into the world of the various innovation incentive
mechanisms which legal systems have created, apply these to the
climate change challenge, and analyse whether and how these
incentive mechanisms can or cannot work, how existing mechanisms
can and should (not) be tweaked with a view to provide effective
and welfare enhancing mechanisms, and/or whether new mechanisms
should be introduced. As we will see, finding the right solution is
difficult, or, as Dutch football legend Johan Cruijff once said:
“Every disadvantage has its advantage!”
To give just a few examples. Most governments have over decades heavily subsidized fossil fuel companies, by direct subsidies and tax advantages. Those incentives have not only made us more dependent on fossil fuel “dirty” technology, but has also taken the incentive away from those companies to invest in more climate friendly technologies. In retrospect, these were clearly the wrong incentives. At the same time, fossil fuel companies have heavily invested in obtaining patent protection (in that very same “dirty” industry), leading to strong exclusive positions, and making society dependent on a limited number of players who have such technologies. This shows that patent protection can also have negative effects. Stemming from a different area of technology, we will need to develop more and more crops which are increasingly drought resistant. Apart from the fact that this is very complex indeed, some of the major players in the agricultural sector have already taken exclusivity positions (patent protection), preventing third parties from using the same technology in making their crops drought resistant. This example demonstrates that, even though providing exclusivity by means of patent protection leads to more much needed innovation in the agricultural space, the other side of the coin is that it also leads to more concentration of exclusivity and hence power in a limited number of hands (read companies), which has negative effects for society.
This course should not be missed for various reasons:
- The subject matter covered should be of immediate interest to everyone, as we all have an interest in tackling climate changes and optimising sustainable solutions.
- It is most definitely a future oriented course, as the subject matter covered by it will only gain importance in the future.
- This is a cross-disciplinary course, as it covers various legal areas, such as climate change regulation, international law relevant to climate change and sustainability, IP rights, other innovation incentives, some aspects of competition law, and some elements of human rights law.
- This course is partly so-called “black letter law”, i.e., it studies legal regulation and how it is applied in the case law, but is has undoubtedly also various policy-based angles, such as the discussion as to whether and which innovation incentives are best suited, and the policy repercussions of the one or the other direction one goes into.
- The present course provides a unique offering, as there is no other European university allowing students to study and analyse the questions and issues raised in this course.
- In view of the unique nature and the absolute relevance of the subject matter of this course, the knowledge acquired and skills learned will without doubt be of enormous value for later professional purposes, as students who have taken this course will be able to demonstrate insights and knowledge in a for the future very relevant subject.
- Moreover, in light of its unique offering, students will gain a major comparative advantage for professional purposes.
- This course will be very useful for everyone who is interested in working in private practice, the judiciary, industry, consultancy and policy making.
Structure of the course:
Part 1: We will first analyse the theoretical underpinnings of the most traditional innovation incentive mechanism, i.e., intellectual property rights, before we try to apply it to the subject matter of this course.
Part 2: We will focus on some of the traditional IP rights relevant to the subject of this course, i.e., patent law and plant breeders’ rights. In connection with patent rights: 1) How is the patent system used in the context of green technology? 2) How can the patent system contribute to innovation in green technology? 3) Patents, by their nature, limit technology transfer (unless licenses are provided), which is seen as a crucial element in the green technology transition. Patents can also lead to dominant positions in a specific area, further limiting access to the essential green technology, and putting a limited number of players in control of major parts of the green technology. Existing “dirty” companies, who have substantial financial resources, can use the patent system as a shield to develop technology that leads society in a certain direction which is not necessarily the green technology direction that is most desirable. All this will be illustrated with real life examples. 4) Which technologies (including genome editing, amongst which CRISPR-Cas) can be used to make plants and crops “climate change ready”, such as drought resistance etc., how these technologies are patented, and what the effect of these patents is on society? Patents allow such technologies to be developed, but there is also the risk that those technologies end up in the hands of a very limited number of players (as is already the case with genome editing technologies), which may present access problems. 5) A wide use of the patent system can negatively affect biodiversity. Bioprospecting and the ensuing new products can negatively affect biodiversity as the newly developed patent protected crops not only often become dominant in their use at the cost of many more traditionally existing crops, but may for some communities also become inaccessible due to monopolistic type of pricing strategies. The Convention on Biodiversity (CBD) and its most recent Nagoya Protocol have tried to establish an access and benefit sharing (ABS) system with a view to establish a mechanism of transfer of financial means to those countries who are the providers of those resources (mostly low- and middle-income countries).
In respect of plant breeders’ rights, we will discuss the rather different objectives the PBR system tries to achieve, and the rather different consequential architecture of the PBR system. One of the foundational principles of the PBR system is access to germ plasm (or breeding material in more common speech), which is a concept orthogonal to the purely exclusivity-based patent system. We will in this context further evaluate to what extent the PBR system can(not) contribute to the development of plants and crops that are useful in the context of climate change, and we will evaluate the consequences of obtaining such PBRs.
Part 3: Trade secrets can stimulate innovation in areas where patent protection would not be possible because the rather stringent requirements for patentability are likely not fulfilled. On the negative side, lack of access to the details of the technology can lead to market distortions, and can also have negative effects on the necessary technology transfer to technology less developed countries. This course will explain and illustrate that dichotomy in the context of climate change technologies.
Part 4: We will look at other incentive mechanisms that could be relevant, classified in two major categories, i.e., push and pull mechanisms. Push mechanisms try to generate sufficient cash incentives to start product development in early stages (government subsidies and public private partnerships being some of them). Pull mechanisms try to provide protection mechanisms that “pull” the product into a commercial product. The latter mechanisms aim to provide an appealing commercial climate once the product is on the market. Patent protection and regulatory exclusivities are prototypical examples, as they provide protection against competition for a certain period of time after market entry. Another example is government subsidies that pre-finance production and first years of commercialisation of the medicinal product, thereby limiting the risk for product developers. The aforementioned incentive mechanisms are needed in areas where there is an issue of market failure, i.e., the situation where traditional innovation incentive mechanisms, such as patent protection, do not lead to sufficient research into and bringing of new products and technologies to market. Market failure is equally present in green technologies. In the short and even medium term, investment in green technologies will not see a return on investment, leading companies to shy away from those technological developments. Other Incentive mechanisms are needed. This chapter of the course will in first instance cover the well-known incentives, many of which are in fact negative incentives, i.e., taxes or levies put on carbon emissions, taking away subsidies to carbon emitting “dirty” industries such as fossil fuel industries, etc. Other well known “positive” incentives are tax benefits, prizes for developing new technologies and direct public subsidies. Other incentives that could be explored are voucher systems, or some sui generis forms of exclusivities (outside of the realm of patent rights).
Part 5: We will finally discuss which of the incentive mechanisms discussed in the previous chapters should be encouraged, discouraged and/or taken away. Are there any incentive mechanisms which are currently missing from the arsenal of options, and if that is the case, why such missing incentive mechanisms should be introduced? Account must not only be taken of the nature of the incentives, but also of their effects. For instance, certain incentives which provide some form of exclusivity to the developer of green technology could create market distortions, which may in the end have a net negative effect on society.
- Demonstrate knowledge and understanding of the law and economics of intellectual property rights.;
- Demonstrate knowledge and understanding of the basic rules relating to patents, plant breeders’ rights and trade secrets;
- Demonstrate detailed knowledge of and the ability to critically evaluate the law regarding the above mentioned intellectual property and related rights;
- Apply the acquired knowledge and understanding of the IPRs and related rights to the challenge of innovation incentives for green technologies;
- Show a good awareness of the practical implications for individuals and corporations of the operation of the abovementioned intellectual property and related rights;
- Provide policy advice regarding pros and cons of IPRs and related in the context of green technologies and evaluate options;
- Demonstrate knowledge and understanding of the basic concepts surrounding other incentive mechanisms to innovation;
- Demonstrate detailed knowledge of and the ability to critically evaluate the law and practice regarding the above mentioned innovation incentive mechanisms;
- Apply the acquired knowledge and understanding of the innovation incentive mechanisms to the challenge of innovation incentives for green technologies;
- Show a good awareness of the practical implications for individuals and corporations of the operation of the abovementioned innovation incentive mechanisms;
- Provide policy advice regarding pros and cons of other innovation incentive mechanisms in the context of green technologies and evaluate options;
- Appreciate the social context and underlying policy issues in this area of law and the influences they exert;
- Research the relevant laws, electronically and on paper and present an effective argument, soundly based in critical analysis of the law in its social and policy context both orally and in writing;
- Be able to complete specified tasks and case studies with minimal direction or input through formal instruction prior to preparing such tasks.
General skills and competences learned in this course:
- Problem Solving
- Written communication
- Conduct independent research
- Communicate in legal terminology with care and accuracy
- Critical analysis
- Reflective learning
- Communicate orally findings in solving case studies (problem questions)
Specific skills and competences for this course:
Skills: The student should be able:
- to differentiate between subject-matter protected by different IPRs and other innovation incentive mechanisms in the context of innovation in green technologies;
- to identify the relevant legislative framework;
- to differentiate between different routes of protection of IPRs and their advantages\disadvantages in the context of innovation in green technology and climate change;
- to identify specific legal issues in IPRs and other innovation incentive mechanisms related to innovation in green technology and climate change;
- to identify facts of legal relevance; to apply legal norm(s) to the factual situations;
- to draft policy advice as to the best (combination of) IPRS and/or other innovation incentive mechanisms to promote the development of green technologies to tackle climate change.
- Competences: The student should be capable of
- providing professional advice in situations involving subject-matter which can be protected by IPRs and other innovation incentive mechanisms;
- providing professional advice as to the role and effect of the digital environment on the structure and functioning of the various IPRs;
- providing policy advice as to the future role of IPRs and other innovation incentive mechanisms to promote the development of green technologies to tackle climate change;
- advising as to the as to the best (combination of) IPRS and/or other innovation incentive mechanisms to promote the development of green technologies to tackle climate change;
- providing professional advice concerning the need and benefits of incentivising innovation in green technologies to tackle climate change.
This course will also apply the active learning philosophy and
method as stimulated within the Law Faculty. To that effect, it is
envisaged that students will be divided into an even number of
groups, and will have to present a specific position (this can be a
policy or lobby position style of case, before national or EU
institutions, etc). Each time, two groups will have to present
adversorial positions, and will have an opportunity for a rebuttal.
This will not only train intellectual insight in and critical
analysis of the studied materials, but it will also train skills
such as oral presentations, and group work, but also competences
such as analysing cases, make complex decisions, and conceptualise
the learned materials in a practical context. The subjects on which
these activities will take place will be decided each semester
during the course. It speaks for itself that this active learning
method will also have a beneficial effect on preparation for the
exam. Students will also be asked to submit a type of ”skeleton
argument” for the position they have been allocated.
Another potential active learning element could be to let students work in group on a project basis to make proposals for new and effective innovation incentive mechanisms, and let them present those initiatives in class.
The below list is merely indicative, non exhaustive and is subject to change. Articles and case law is subject to change, depending on what the literature provides.
Joshua Sarnoff (ed.), Research Handbook on Intellectual Property and Climate Change, Edward Elgar Publishing Limited, 2016, pages 200-233, 253-270, 334-351, 352-368;
Matthew Rimmer (ed.), Intellectual Property and Clean Energy, Springer Nature Singapore Pte Ltd. 2018, pages 1-32, 33-68, 235-274, 399-426, 585-614;
Joshua D. Samoff, GOVERNMENT CHOICES IN INNOVATION FUNDING (WITH REFERENCE TO CLIMATE CHANGE), Emory Law Journal, 62:1087, 2013, 1087-1157;
Carolyn Fischer, Asbjørn Torvanger, Manish Kumar Shrivastava, Thomas Sterner, Peter Stigson, How Should Support for Climate-Friendly Technologies Be Designed?, Ambio (2012) 41:33–45;
Carlos M. Correa, Innovation and Technology Transfer of Environmentally Sound Technologies: The Need to Engage in a Substantive Debate, RECIEL 22 (1) 2013, 54-61;
OFER TUR-SINAI, PATENTS AND CLIMATE CHANGE: A SKEPTIC'S VIEW, Environmental Law, 48:211, 2018, 211-261;
Jan Fagerberg, Mobilizing innovation for sustainability transitions: A comment on transformative innovation policy, Research Policy 47 (2018) 1568–1576
Miklós Antal & Jeroen C.J.M. Van Den Bergh (2016) Green growth and climate change: conceptual and empirical considerations, Climate Policy, 16:2, 165-177;
Abbe E.L. Brown, Intellectual Property, Human Rights and Climate Change, in, P. Torremans (ed.), Intellectual Property Law and Human Rights, 4th edition, Wolters Kluwer, 2020, 813-840;
Bostyn, Sven J.R., "Towards a Fair Scope of Protection for Plant Breeders’ Rights in an Era of New Breeding Techniques: Proposals for a Modernization of the Essentially Derived Variety Concept" Agronomy 11, no. 8: 1511., 2021, https://doi.org/10.3390/agronomy11081511 ;
Bostyn, Sven J.R., Patentability of plants: at the crossroads between monopolising nature and protection technological innovation? The Journal of World Intellectual Property (2013) Vol. 16, no. 3–4, pp. 105–149;
OECD (2015), Policy Guidance for Investment in Clean Energy Infrastructure: Expanding Access to Clean Energy for Green Growth and Development, OECD Publishing, Paris. http://dx.doi.org/10.1787/9789264212664-en , 116 pp.;
Richard Posner, Intellectual Property: The Law and Economics Approach, The Journal of Economic Perspectives, Vol. 19, No. 2 (Spring, 2005), pp. 57-73;
Kenneth W. Dam, THE ECONOMIC UNDERPINNINGS OF PATENT LAW, JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 19;
No specific academic skills above and beyond other courses are requested in this course. A good mix of analytical and critical skills, willingness to do independent research and presentation skills for the active learning element and the oral exam are expected for this course.
Students should have a good command of English. There is no
requirement for the student to have any previous knowledge of IP.
Students should also have good analytical skills.
The course will be taught in English and on the basis of course materials in English. A reasonable command of English is thus recommended.
- 15 ECTS
- Type of assessment
Oral examination, 20 minutes
- Type of assessment details
- Oral exam based on synopsis, 20 minutes
- Marking scale
- 7-point grading scale
- Censorship form
- External censorship
Single subject courses (day)
- Course number
- 15 ECTS
- Programme level
- Full Degree Master
Full Degree Master choice
- Students enrolled at Faculty of Law or holding a pre-approval: No tuition fee
- Professionals: Please visit our website
Please see schedule for teaching time
- Faculty of Law
- Sven Jean R Bostyn (11-7b7e6d76366a777b7c817648727d7a36737d366c73)
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