In December, world leaders are meeting in Copenhagen to agree a strategy to reduce carbon emissions and combat climate change. The success of any strategy will ultimately depend upon the development and dissemination of clean technology throughout the world. As a result, world leaders are coming under intense pressure to relax patent protection to facilitate the transfer of clean technology to the developing world. However, it is questionable whether such a move would really promote the use of clean technology.

As an article this month in the New Scientist highlights, clean tech can help with innovations from virtually waterless washing machines and biofuel made from pond scum to offshore wind turbines. The patent system is designed to stimulate such innovation. To begin with it is difficult to get a patent. It must be shown that the technology is novel – not obvious from existing technology – and that it is capable of industrial application. Further, patent protection is finite, the maximum length is 20 years, with the invention being revealed to the public from the outset. This disclosure contributes to the dissemination of the underlying technology and know how that otherwise would be kept confidential.

Venture capital-backed start-ups provide for the majority of research and development (R&D) funding in the clean tech sector. Private companies need to recoup losses incurred during the R&D phase of development and the patent system gives them a way of doing this. Without patent protection, competitors would simply copy the underlying technology without having to invest in their own R&D, giving them a competitive advantage. Furthermore, start-ups will struggle to bring inventions to market without a strong intellectual property system refereeing the inevitable licensing agreements.

With international co-operation, governments could launch R&D initiatives that co-ordinate and fund clean projects. Any resulting innovation could then be made available across the globe on more favourable terms. The introduction of cheaper technology created through public funding would force the private sector to respond and reduce its royalties.

Although public funding will inevitably help, it will never be able to displace the necessity for private investment. The granting of compulsory licences to developing countries is one possible solution. This should not, however, be done in a way which significantly dissuades any private investment.

All sophisticated patent systems abide by the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), which provides for a mechanism for compulsory licensing. If an innovation is patent protected in a specific country a company can request, normally in return for a royalty, a voluntary license from the patent holder. If the patent holder refuses or charges too high a royalty the company can, in certain circumstances, apply to the government to grant it a compulsory licence.

Success in developing clean technology is vital in the fight against climate change, but unless such technology can be adequately implemented in developing economies, its success will be undermined. Technology transfer does not just involve allowing access to the innovation and underlying know how, it requires its implementation within local infrastructures. The hurdles of local legislation and regulation, the shortage of skilled workers and finance all need to be overcome.

We must balance these competing issues and seek schemes that can simultaneously protect rights holders, encourage continued research into clean technology and further ensure the widest adoption of these technologies. All in all, world leaders have their work cut out in Copenhagen.

Lucy Harrold is an IP partner and Rob Jacob an associate at Stephenson Harwood.