The patent system was created to fix a problem in the market. Private companies will not invest enough in research and development unless there are exclusive rights over their R&D and intellectual property, so as to discourage the theft of their ideas. However, climate change introduces a secondary perspective that is far more perilous: environmental pollution is a social cost that private companies do not account for.
This leads to a lack of investment in green technologies and highlights the innovation gap that patents aim to fill. The outcome is a crucial structural tension within Green IP: can the patent system withstand a crisis where exclusivity is at the forefront?
This article proposes a reform that is the need of the hour, with a suitable framework relying on the Doha Declaration.
Green Patents and The Gap
There has been a rise of approximately 20 percent in applications for green patents globally. This is due to technological advancements in solar, wind, battery storage, carbon capture, and other sustainability solutions. WIPO’s World Intellectual Property Indicators 2025 Report confirms that applications related to energy are among the most significant trends shaping the patent system. Several patent offices across the globe have established expedited examination processes due to the inevitability and importance of such technologies.
The USPTO (United States Patent and Trademark Office) initiated the Green Technology Pilot Program in 2009. India began using the WIPO Green Inventory through its International Patent Classification system and further increased the speed of examination under Rule 24C of the Patents Rules, 2003, reducing the waiting period from 3–5 years to 12–18 months.
On the other hand, this has made it easier for IP (patent) monopolies to expand rather than foster innovation. Speeding up the process of obtaining patents does not, by itself, ensure that the technology reaches countries most vulnerable to climate change. There exists a lacuna between the need for innovation and IP governance.
The Paradox!
The argument for strong green patent protection is based on the logic of incentives: companies will not bear the high costs of developing new technologies without exclusive rights. Studies show that patents on low-carbon technologies increase costs, leading to continued dependence on conventional technologies that produce higher carbon emissions, despite advancements.
Small and medium enterprises in low- and middle-income countries report that the cost of obtaining licenses for green technologies is approximately 50 percent higher than in high-income countries. This is where the gap lies: countries most at risk from climate change, and often least responsible for past emissions, cannot afford the technologies they need the most.
The legal aspect of this paradox was clarified in eBay Inc. v. MercExchange, LLC (2006), where the Supreme Court unanimously held that patent holders are not automatically entitled to permanent injunctive relief upon a finding of infringement. Instead, they must satisfy a four-factor equitable test, the final factor being whether the public interest would be disserved by a permanent injunction.
When applied carefully, the public interest factor allows courts the flexibility to deny injunctive relief where patented technology is necessary to address a larger social problem. In another case concerning green technology, the court upheld the refusal of injunctive relief against Toyota’s hybrid vehicle technology, stating that an injunction could hinder progress in the “burgeoning hybrid market” and adversely affect dealers and suppliers.
These decisions collectively illustrate that U.S. patent law acknowledges the primacy of public interest over automatic exclusivity. However, this principle has yet to be fully recognized in the context of climate change.
According to Matthew Rimmer, extensive and strategic patent filings generate “patent thickets” that obstruct entire technological avenues for aspiring innovators in the Global South, regardless of attempts at licensing negotiations.
Current Law and Its Limitations
It is often argued that the TRIPS Agreement is too strict, but this is not entirely accurate. Article 30 allows “limited exceptions” to patent rights, subject to a three-step test. Article 31 permits compulsory licensing, enabling the state to authorize the use of a patented invention, subject to conditions such as prior negotiation and payment of adequate remuneration.
The Doha Declaration on TRIPS and Public Health clarifies that TRIPS must be interpreted in a manner that protects members’ rights to safeguard public health and does not restrict the grounds for granting compulsory licenses.
In India’s landmark decision granting its first compulsory license under Section 84 of the Patents Act, 1970, for the anti-cancer drug sorafenib (Nexavar), the IPAB made a noteworthy observation: “patents are not absolute rights but come with societal obligations.” This principle may be equally relevant in the context of climate change.
However, compulsory licensing has never been used for green technologies. A single solar panel may involve multiple patents covering semiconductor materials, assembly methods, and coating techniques. A license for one patent does not result in a workable solution.
Furthermore, green technologies are not uniform. Solar photovoltaics, wind turbines, carbon capture systems, and next-generation batteries do not fit into standardized “climate-essential” categories akin to essential medicines. There is also the issue of tacit knowledge: a license grants legal rights, but not the technical expertise required to utilize the technology effectively.
Applicability of the Doha Declaration to Green IP through a “Liability Rule”
The Doha Declaration did not eliminate pharmaceutical patent protection but restructured it to ensure access during public health crises while maintaining innovation incentives.
The proposed structure is:
- Property Rule as the default
- Liability Rule during crisis situations
This proposition is based on the Calabresi–Melamed entitlement framework and suggests a situational liability rule.
Scenario 1: Absence of Crisis + Availability of Competing Technologies
Conventional patent protection should be maintained.
Scenario 2: Technology Declared “Climate-Significant”
Where technology is classified as “climate-significant” under a WIPO–UNFCCC inventory:
Patent holders must offer licenses to developing and least-developed countries on fair and non-discriminatory terms, subject to royalty rates fixed by a designated authority under WIPO.
Scenario 3: Technology Necessary for Nationally Determined Contributions (NDCs)
Where a technology is necessary for a country’s commitments under the Paris Agreement:
Compulsory licensing should be permitted without prior negotiation (similar to Article 31(b) TRIPS in cases of national emergency), read with Article 4 of the Paris Agreement. International arbitration may determine compensation instead of bilateral negotiation.
Alternatives to Compulsory Licensing
Patent pools provide a market-based solution. China introduced rules for green technology patent pools in 2025, and the Eco-Patent Commons, established by IBM, Nokia, Pitney Bowes, and Sony, demonstrates that collective licensing systems can be effective and profitable.
Additionally, the WIPO Green platform connects technology providers and seekers globally.
Any model proposing compulsory licensing must address the deficit of tacit knowledge. While compulsory licenses grant legal rights, they do not ensure the capability to implement the technology. Therefore, mandatory technology transfer and support obligations must accompany compulsory licensing under the liability rule.
Conclusion
Green patents are both drivers of climate innovation and potential barriers to addressing climate change. As Calvin Ring observed, the patent system can be improved, but its rules must evolve to support, rather than hinder, green innovation.
The Doha Declaration demonstrated that when the stakes are sufficiently high, intellectual property laws can be adapted. The climate crisis presents precisely such a situation.
Countries that have made significant progress in climate innovation, as reflected in WIPO Green’s comparative data, show that intellectual property should be viewed as a tool to combat climate change, not an end in itself.
As stated by the IPAB in Natco v. Bayer, patents entail societal responsibilities. This article proposes the aforementioned liability rule as a means of reorienting the system accordingly.
Author: Jonathan Chityala, student at Keshav Memorial College of Law, Hyderabad.
Link to similar articles: https://jpassociates.co.in/standard-essential-patents/
REFERENCES
Books:
- Matthew Rimmer, Intellectual Property and Climate Change: Inventing Clean Technologies (2011)
Articles/Research Papers:
- Brown H. Hall & Christian Helmers, The Role of Patent Protection in (Clean/Green) Technology Transfer, Santa Clara High Tech Law Journal (2010)
- WIPO, World Intellectual Property Indicators 2025
- Pengfei Cheng et al., Does Intellectual Property Rights Protection Help Reduce Carbon Emissions?
- Samuel Cayton, ‘The Green Patent Paradox’ and Fair Use: The Intellectual Property Solution to fight Climate Change, (2020)
- Guido Calabresi& A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One Vie of the Cathedral, Harvard Law Review (1972)
- Martin Khor, South Centre, Climate Change, Technology and Intellectual Property Rights, (https://www.southcentre.int/)
- Eco-Patent Commons, Founding Member Statement (2008)
- Calvin Ring, Patent Law and Climate Change: Innovation Policy for a Climate in Crisis. (2021)
Legislations:
- Patent Rules, 2003
- The Patents Act 1970
Treaties and Conventions:
- Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104
- Ministerial Declaration on the TRIPS Agreement and Public Health (Doha Declaration); Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS Agreement]
- United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38
Case laws:
- eBay Inc v. MercExchange, LLC., 547 U.S. 388,391 (2006)
- Paice LLC v. Toyota Motor Corp., (Fed. Cir. 2007)
- Bayer Corp. v. Union of India and Ors., (Bayer Corp. v. Natco Pharma Ltd.), (Controller of Patents, March 9 2012); (IPAB, March 4, 2013)