Climate change is a critical and emotionally-charged issue. The motivation for addressing climate change is varied, ranging from the purely environmental perspective or a key risk management issue to that of an incredible opportunity for organizations to gain a competitive advantage.
In Agricultural Infrastructure for Climate Change Resistance we discussed how climate change is a significant challenge for agriculture and the potential resiliency structures that could be utilized to adapt to climate change.
In this article, the authors discuss how the causes and impacts of climate change are driving both incremental and ground-breaking innovations in agricultural practices; and the role of intellectual property in incentivizing organizations to innovate and as a key risk management issue.
The causes and impacts of climate change have again been highlighted in the "Climate Change and Land, an IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems" issued by the Intergovernmental Panel on Climate Change on 8 August 2019.
What is clear is that these issues are driving both incremental and groundbreaking innovations in agricultural practices to:
- reduce or mitigate the contribution of agricultural practices to greenhouse gas emissions;
- reduce food loss and waste, so reducing the contribution of food loss and waste to greenhouse gas emission; and
- ensure food security and the continued viability of agricultural practices in regions where the natural environment has been altered as a result of changing climatic conditions.
In this article, we provide a brief snapshot of some of the many and varied innovations being developed to address these issues, in addition to those discussed in Agricultural Infrastructure for Climate Change Resistance. We then discuss the central role that intellectual property, and specifically patents, can and are playing in fostering this much needed innovation and the need to ensure that intellectual property is front of mind when seeking to commercialize these innovations.
Agricultural innovation: a snapshot
It is no surprise that the many and varied impacts of agricultural practices on the world's climate and the impact of food loss and waste has resulted in a wide array of agricultural innovations.
Greenhouse gas emission reduction and mitigation
Fundamentally, a key focus of innovation has been on reducing the climate-related footprint of agricultural practices.
In this context, we have seen innovation in the energy sources used in agriculture, with a push to reduce the fossil fuel usage through the development and greater use of renewable energy technologies such as electric vehicles and large-scale batteries. Innovation in this context has also centred on developing agricultural practices which either reduce greenhouse gas emissions or mitigate against such emissions by for example sequestering carbon.
There has also been innovation directed to more efficiently using the world's natural resources. Increased efficiency in water usage, for example, through precision irrigation minimizes the amount of water lost to other plants and to evaporation. Many specialist companies design and implement precision irrigation systems and have obtained patents in relation to this technology.
For example, Netafim, a world leader in precision irrigation technology, has numerous patents in relation to precision irrigation technology.
Food loss and waste
Food loss occurs at each stage of the food production process, through for example, losses due to poor crop harvest and animal death and losses due to insufficient storage facilities. In many countries, on-farm food waste is also often caused by wholesales/retailers rejecting produce based on actual or perceived consumer expectations.
The need to reduce food wastage and the economic incentive to do so has driven innovation in product development, resulting in new products and in some cases resulting in the development of new industries that can use the food that would otherwise be treated as waste. Notably, one such industry is the Tasmanian gin industry, which originated from a desire to find a market for "second grade" potatoes.
Viability of agricultural practices in a changing world
With average temperatures on the rise and changes in rainfall patterns and salinity levels in many parts of the globe, there has been a change in the crops and livestock that can be sustainably grown and raised in many regions. Concomitantly, increasing temperatures and changes in rainfall patterns has caused changes in insect pest populations, including for example in relation to the numbers and size of the insect pests typically present and the types of insect pests present.
The cumulative effect is a decrease in the viability of crops and livestock traditionally grown and raised in different global regions and an increased risk of crop destruction and livestock disease from pest insects. As a result, innovation has been focused on developing new crop and livestock breeds that can tolerate the climatic changes such as drought-resistant crops and salinity-tolerant plants.
We have also seen the development of innovative farming practices to harness extreme weather events for agricultural benefit. One example here is the use of aquifer storage and recovery (ASR) systems to provide seasonal or yearly water storage. ASR systems work by storing water during the wet season/years and recovering it during the following dry season/year.
Intellectual Property's Role
Intellectual property is front and centre, whether your motivation for addressing climate change causes and impacts is purely environmental or is based on risk management principles or the desire for gaining a competitive advantage.
While there continues to be a debate as to the role that intellectual property can play in fostering innovation to address these issues, it is important to remember that intellectual property, and specifically patents, were created as a type of legally recognised property to encourage and reward those who invested in innovation. Those who innovated could seek to recoup their investment through applying for and being granted a patent. A granted patent provided a statutory monopoly which could then be monetised by directly selling the patented innovation or by licensing third parties to sell the patent innovation.
The quid pro quo was that the patentee published their innovation to the world, meaning that third parties benefited from the publicly available knowledge of the innovation and could practise the patented innovation once the statutory monopoly ended.
The patent system is ideally placed to assist in fostering the much-needed innovation in agricultural sustainability and food security for the following reasons:
- Patents incentivize organizations to innovate to reduce their risk profile in relation to food sustainability and food security. And from a risk management perspective it is also vital that organizations are aware of the patent landscape to ensure that their current practices and any future innovations in relation to these practices do not impinge on a third party's patent rights.
- Patents also incentivize organizations to innovate for the purpose of seeking a competitive advantage.
- While the patent system grants exclusive rights to the patentee, the patentee is required to publish their invention to the world. So, as already stated, this means that third parties benefit from the publicly available knowledge of the innovation and can practise the patented innovation once the statutory monopoly ended.
- The patent laws of most countries include mechanisms designed to ensure that innovation can continue throughout the term of the patent. These mechanisms take the form of infringement exemptions. For example, the patent laws of many countries exempt any acts which might otherwise constitute exploitation (and so infringement) of a patent where those acts are done solely for purposes connected with obtaining regulatory approval or for experimental purposes. Critically, this means that research can continue during the life of the patent leading to further innovation during the life of the patent.
- A patentee is also able to ensure that the patented innovation is widely disseminated and integrated where required with other technologies. Subject to any competition issues, this can be done by the standalone licensing of the patent innovation or as part of a cross-licensing or patent pool arrangement.
- Where the free market does not lead to the necessary dissemination of innovative practices, this gap can be addressed by compulsory licence provisions. While not perfect and not often used, compulsory licence provisions provide a statutory mechanism to ensure the dissemination of innovations. For example, in Australia, the Patents Act provides that a compulsory licence may be granted where: 1. the applicant has tried for a reasonable period, but without success, to obtain from the patentee an authorization to work the invention on reasonable terms and conditions; 2. the reasonable requirements of the public with respect to the patented innovation have not been satisfied; and 3. the patentee has given no satisfactory reason for failing to exploit the patent.
The contribution of agricultural practices and food loss and waste to greenhouse gas emissions and the concomitant changes in global environmental conditions cannot be ignored. The big question is what will incentivize individuals and business to innovate to address these issues. The intellectual property system, and specifically the patent system, is ideally placed to provide the required incentive whether your motivation is purely environmental, or arises because climate causes and impacts present key risk management issues or alternatively an incredible opportunity to gain a competitive advantage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.