An international debate has recently intensified to determine the role, if any, that the transfer of intellectual property rights and technologies may play in current and future international climate change treaties.  Specifically, the transfer of intellectual property rights—patents, copyrights, etc.—directed to low-carbon technologies that can be utilized by countries to meet their greenhouse gas (GHG) reduction targets is an increasingly significant, and contentious, consideration for developed and developing countries. Delegates at the United Nations Framework Convention on Climate Change (UNFCCC) conference in Bonn earlier this year discussed the transfer of intellectual property rights, such as by compulsory licensing.  These issues are expected to be subject to intense negotiation this December at the UNFCCC meeting in Copenhagen. The UNFCCC has begun to formulate and express its long-term visions and goals for clean technology transfer mechanisms. The transfer of intellectual property rights and technologies to combat the effects of climate change necessarily implicates U.S. foreign policy, U.S. climate change policy, and U.S. intellectual property policy.  In recognition of the importance of the technology transfer issues, the U.S. Congress escalated this issue among its legislative priorities and intends to set forth its positions in advance of the Copenhagen meeting. 

On June 10, the House of Representatives passed H.R. 2410, the “Foreign Relations Authorization Act, Fiscal Years 2010 and 2011.”  Section 329 of this legislation is directed to the “Protection of Intellectual Property Rights.”  Its title alone alludes to the stance that the U.S. is expected to take in Copenhagen.  

While not limited exclusively by its language to climate change issues, Section 329 requires the Secretary of State to ensure that the protection in foreign countries of intellectual property rights owned by U.S. persons and U.S. companies is a “significant component” of U.S. foreign policy.  In countries that have been identified as denying adequate protection or market access for intellectual property rights, the Secretary also must ensure that the U.S. diplomatic presence will have sufficient resources:

1. to support enforcement actions in that country against violations of intellectual property rights owned by U.S. persons or companies; and
2. to cooperate with the host country to reform its laws, regulations, practices, and agencies to enable that country to fulfill its obligations with respect to the protection of intellectual property rights. 

The Secretary of State is further authorized to appoint ten intellectual property attachés to serve in U.S. embassies, prioritizing these appointments based on the greatest potential benefit to reduce counterfeit or pirated goods entering into the U.S. market, to protect the intellectual property rights of U.S. owners and their licensees, and to protect the interest of those in the U.S. who are otherwise harmed by intellectual property violations in those countries.  The intellectual property attachés will have other duties and responsibilities, as well, including engaging in public education efforts against counterfeiting and piracy. 

Rep. Rick Larsen (D-WA) sponsored an amendment to H.R. 2410 that was approved unanimously.  Referred to as the “Statement of Policy Regarding Climate Change,” the amendment asserts that “[t]o protect American jobs, spur economic growth and promote a ‘Green Economy,’ it shall be the policy of the United States that, with respect to the [UNFCCC], the President, the Secretary of State and the Permanent Representative of the United States to the United Nations should prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements [] for the protection of intellectual property rights related to energy or environmental technology,” and lists a variety of technologies, including wind, solar, biomass, clean coal, energy efficiency-related technologies, and others.

Thus, the legislation passed by the House intends to protect the overseas intellectual property rights of U.S.-based owners.  With the UNFCCC investigating means for technology transfer that may be seriously discussed as early as December 2009, the U.S. has made it known that it will ensure that U.S. owners of relevant intellectual property rights will be protected, and, in all likelihood, compensated for any such transfer of rights or technologies. 

For further information about this topic, please contact Akin Gump.