Canada: CIPO Shines Spotlight On Patenting In Climate Change Mitigation Technologies

With the Paris climate agreement having recently come into effect, climate change mitigation technologies have been the focus of widespread discussion and debate. The Canadian Intellectual Property Office (CIPO) has added to the conversation in their 2016 IP Canada Report, which includes a spotlight previewing their ongoing analytics study on Canadian climate change mitigation-related patent filings. CIPO's data is not limited to patent filings in Canada, and it is clear from the study that Canadian climate change mitigation innovators are pursuing patent protection both at home and abroad. Measures put in place by CIPO and many other national IP offices to fast-track such "green" patent applications reflect the increasing importance attributed to this sector of the economy.

Canadian climate change mitigation technology-related patent analytics

The key findings in CIPO's spotlight show that Canadian innovators are active in virtually every area of climate change mitigation. This finding is consistent with a 2009 Chatham House report which ranked Canada as a top-ten country based on patent filings relating to wind, photovoltaics, biomass-to-energy, concentrated solar power, cleaner coal, and carbon capture technologies. CIPO's more recent data set makes it clear that Canadian innovators are continuing to advance the state-of-the-art across the climate change mitigation spectrum. The spotlight also provides an indication of Canada's relative specialization in various climate change mitigation areas by normalizing Canadian patent filing data with a so-called "technological advantage index". The figure identifies carbon capture as the area in which Canadian innovation is most concentrated. While this finding is to be expected in view of the applicability of carbon capture technology to Canada's traditional energy sector, this will be an interesting metric to follow given that numerous Canadian innovators are moving towards commercialization in various sub-sectors of the carbon capture space.

Pursuing climate change mitigation technology-related patent protection at home and abroad

In an effort to foster investment and expedite commercialization of climate change mitigation technologies, CIPO and other national IP offices have put measures in place to prioritize the prosecution of "green" patent applications. As a result, innovators may have options for fast-tracking their applications through to grant at little or no extra cost. These measures are proving to be very effective with fast-track examination outpacing ordinary examination by between 42% and 75% across participating IP offices.

Canada is widely considered to be a favourable jurisdiction for fast-tracking patent applications directed to environmentally friendly technologies, thanks to relatively liberal eligibility rules and minimal formal requirements. With respect to eligibility, the Patent Rules simply require that applicants submit a declaration stating that their application relates to a technology "the commercialization of which would help to resolve or mitigate environmental impacts or conserve the natural environment and resources". There is no fee for expediting examination in this manner, and there are no limits on the number or types of claims allowed. As an alternative, applicants may also expedite examination in Canada by requesting "special order", which requires payment of a nominal government fee. Such "special orders" have historically been obtained without difficulty and are not restricted to "green" technology. CIPO's service standards are the same regardless of which method is used to qualify for expedited prosecution, and according to CIPO applicants can expect to receive a substantive office action less than two months after filing a request for examination or a response to an Examiner's Report.

The national IP offices of many other jurisdictions have implemented comparable "green" patent fast-track programs. However, while the potential for expedited prosecution across multiple jurisdictions can provide considerable benefits for climate change mitigation technology-innovators, taking advantage of them is not always straightforward due to a lack of harmonization. Indeed, program eligibility rules vary considerably between offices, with little consensus as to what qualifies as a "green" technology. At one end of the spectrum, the IP offices of Australia and the UK have relatively liberal eligibility requirements similar to those touched on above with respect to CIPO. On the other end of the spectrum is the Republic of Korea, which limits eligibility for their fast-track program to renewable energy technologies that are either government funded/accredited or that have received "green certification" under local environmental laws. Brazil, China, Japan, Israel, and the US fall somewhere in the middle in terms of the restrictions placed on the technology classes permitted. In addition to various eligibility rules, fast track-programs have various cost structures and formal requirements including limits on the number and type of claims permitted. The Japanese Patent Office is notable in this respect, as it charges fees on a per-claim basis and requires that applicants conduct prior art searches and submit comparisons between claimed inventions and the closest prior art.

Developing a coherent prosecution strategy to navigate the various eligibility rules and formal requirements of multiple fast-track programs can be complex and often requires the preparation of jurisdiction-specific claim sets and remarks. Those interested in more information on how to best take advantage of the fast-track programs currently available are invited to contact a member of our clean technology law practice group.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

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James Jun Pan
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