There is a common misconception that Trinidad and Tobago does not have intellectual property laws. In fact, we have robust legislation governing all areas of intellectual property. Therefore, the framework is in place to incentivise inventors to innovate, with their inventions subject to strong legal protection, allowing them to commercialise and reap the rewards of their intellectual labour. On this note, patent law is the key area of intellectual property concerning scientific inventions.
A Primer on Patents
The Trinidad and Tobago Patents Act defines ‘invention’ as ‘an idea of an inventor which permits in practice the solution to a specific problem in the field of technology’. Patent protection lasts 20 years from the date of filing the application. To be granted a patent, the invention must be novel, contain an inventive step (not be obvious), be capable of industrial application, and not fall within excluded subject matter. However, despite the existence of a robust patent framework, in 2022, only seven patents were filed in Trinidad and Tobago, of which six filings were by foreign entities (2022 World Intellectual Property Organization’s ‘Intellectual Property Statistical Country Profile’).
Challenges with Green Innovations
We must be mindful of the role that intellectual property law plays globally. While technology is needed to address key climate issues faced by small island developing states in a range of industries such as waste management, alternative energy production, transportation, low-carbon energy, and plastic recycling, it is often difficult for developing countries to invent or access such technologies.
I recently published a peer-reviewed article on the intentional exclusion of enforceable technology transfer obligations in the Paris Agreement 2015. This international treaty aims to ensure that countries cooperate in fighting climate change. However, the Technology Mechanism does not contain any measurable obligations for actual technology transfer. The words ‘intellectual property’ and ‘patents’ are notably absent from the Technology Mechanism, given that developed and developing countries disagreed about the means to facilitate technology transfers at the Conference of the Parties (COP) 2009 and 2010.
Alternatively, the United Nations (UN) ‘Technology and Innovation Report 2023’ discussed patents extensively. In suggesting the reformation of intellectual property regimes, this report noted that ‘[i]t will also be important to reform global intellectual property (IP) regimes so as to allow developing countries ready access to frontier technologies.’ The issue with the reformation of intellectual property regimes is that developed and developing countries are often in opposition when it comes to changing levels of protection. Developing countries want fewer intellectual property rights so that technology is accessible, whereas developed countries want more rights to safeguard inventions. This position is not new, and the problem predates climate change, as there has always been a pushback against weakening intellectual property rights. This reticence is somewhat warranted as patents are meant to incentivise innovation and allow inventors time to recoup the investment expended in research and development.
However, to battle pressing global crises, new technologies must be accessible in a timely manner. Thus, enforceable state obligations need to be inserted into the Paris Agreement and other similar international agreements in the form of incentivised licensing. Incentivised licensing will require developed countries to provide a favourable tax regime for income generated from licensing deals concerning green technology with developing countries. This approach, known as a ‘patent box regime’, has been used on a national basis by Korea and France to encourage innovation. On a global scale, it could encourage the transfer of existing inventions.
From a practical perspective, recipient countries could access the Green Climate Fund to pay for such licences. Furthermore, it is important that these deals are completed amicably because there is a need for capacity building and training so that the technologies can be effectively implemented. Hence, weakening rights while appealing for increased access to patented technologies will not result in a viable outcome, as many developing countries lack the technical expertise to employ licensed inventions. As a result, cooperation is critical for the success of technology transfer.
The suggested approach will align with the desire of developed countries to maintain strong intellectual property rights while ensuring that developing countries have access to patented green technologies. However, the suggested approach will require changes to the national taxation regimes of developed countries. Furthermore, it is accepted that the law is not usually at the forefront of the climate change discussion. Yet, intellectual property law plays an indispensable role in the climate crisis as both a driver and keeper of innovation.
Dr Emma Perot
Dr Emma Perot is a Lecturer at the Faculty of Law, UWI, St Augustine. She was awarded the ‘Most Outstanding Faculty Researcher – Faculty of Law’ prize at the 2023 Principal’s Research Awards 2023.