"Green technologies" – those that provide an environmental benefit, or in some cases lessen a detriment, are assuming ever-increasing status throughout the world. This is especially true in Australia, where the recently-formed Government was only established after the Labour Party reached a formal agreement with the Greens.
The emerging importance of green technologies is also likely to impact upon the world of intellectual property – and in particular, patents. The frontiers of patentability are typically spaced few and far between. In recent years, we've had superconductors, gene patents and computer software – and now, in line with ever-increasing environmental awareness, the latest "buzzword" appears to be "greentech" (or "cleantech").
Unlike gene patents and computer software, there is a general acceptance that green technologies should patentable – the few dissenters who argue that such technologies should be in the public domain appear to overlook the basic quid pro quo of the "patent bargain" –being that without the prospect of patent protection, researchers would have no incentive to develop such technologies in the first place. In this respect, any patentability issues surrounding green technologies are actually more closely akin to those experienced 25 years ago in respect of superconductors – in other words, how can the patent system be poked and prodded in order to better accommodate these technologies?
Any special treatment for green technologies of course first requires a standard definition of precisely how "green" any new technology must be in order to qualify. On the one hand, a technology that mitigates an environmental problem or provides a solution arguably sets the bar rather high – and excludes "net-red-relative-green" technologies that although "greener" than existing competitor technologies, may still cause some degree of environmental damage. On the other hand, it could be argued that these technologies (for instance, a more environmentally-friendly method for manufacturing cement) are just as deserving.
Notwithstanding, the Australian Patent Office has recently offered to expedite examination of patent applications relating to green technologies. Of itself, this is nothing new – indeed, expedited examination has been offered for many years, irrespective of technology. However, as a reason for requesting expedited examination need now by given, this platform has largely been the domain of those wishing to expedite grant of their application with a view to commencing infringement proceedings as soon as possible thereafter – or those requiring a granted patent as a condition of obtaining investor funding. Expedited examination typically saves the applicant around 14 months of waiting for a first Official Report to issue from the Examiner – and the potential benefits are clear in this regard. With this new concession, a reason such as "this application relates to green technology" may be just as valid as those typically employed in the past.
On the other hand, proceeding in the "regular" manner and not applying for expedited examination provides an applicant with additional time in which to determine whether their invention is commercially viable. This is significant on a cost basis given that a decision to proceed with patent prosecution is often akin to a commitment to pay. Of course, as with everything in the patent game, how best to proceed is a delicate balancing act.
In response to the increasing recognition being afforded to green technologies throughout the patent world, Shelston IP has recently established a "Green IP Team" comprising professional staff from varying scientific, engineering and legal backgrounds. We are well placed to advise clients as to how best to prosecute their "green" technologies by making best use of the various facilities available under both the Australian and foreign patent systems.
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