Intellectual Property Rights In The Renewable Energy Sector

Introduction

Intellectual Property ("IP") refers to the legal protection, that is granted to intellectual creations carrying commercial value. For instance, a product, process, software, algorithm, brand name, or any confidential know-how belonging to a business is an asset created through the intellect of the business owners. Such an innovation is considered as the intellectual property of the said business owner. In fact, IP is the key differentiator that sets one business apart from its competitors, effectively being the reasons why investors and customers would choose one venture over another.

IP protection aims to reward its creators by granting exclusive rights to the creators to use and commercialize their IP. The legal rights also empower the creators to stop unauthorised use and imitation of their IP, which consequently reduces consumer confusion and misrepresentation.

Specifically in the renewable energy sector, IP protection is essential as innovations and expansion often occurs through joint ventures and partnerships with multiple stakeholders and collaborators. Strong IP protection ensures secured data sharing, and allows IP to even become a recurring revenue stream via licensing, assignments, and partnerships.

Categories of Green IPR

IPR for renewable energy is often dubbed as Green IPR. Green IPR is the bundle of rights reserved for the protectors of innovative technologies and products that contribute to environmental protection and the mitigation of global warming. These include renewable energy systems such as solar, wind, and biofuels energy mechanisms, waste management systems, electric vehicles, green manufacturing, and technology crfeating sustainable materials. Green IPR encourages environmentally friendly innovation by providing incentives, enhances sustainable development and enables global technology transfer and collaboration.

The primary categories of Green IPR are:

1. Green Patents: Green patents refer to protection under the Patent Regime of green technologies that aim to promote sustainable human development. In India, a registered patent gives exclusive rights for up to 20 years on the patented technology and/or process.
2. Green Trademarks: Green trademarks are marks that identify products as eco-friendly and sustainable. In 1991, India established the Eco Mark Scheme to track green products. The Eco Mark logo, an earthen pot, represents sustainable development and use of renewable resources. In order to be eligible, products have to pollute less and involve recyclable or biodegradable materials, contribute to conservation of materials other than renewable energies and reduce environmental impact. Products for renewable energy. For example, appliances with energy efficiency can apply for Eco Mark certification under the Bureau of Indian Standards.
3. Green Designs: Design, the aesthetic quality of green items such as electric vehicles or reusable containers are protected under the Industrial Designs Regime. Green design in India protects its application in the design of sustainability with its application for function and appearance, so that these are able to get a holistic approach to design solutions for commercial purposes.
4. Green Trade Secrets: Green trade secrets are confidential business information, which grants a competitive advantage in the renewable energy industry. Common law principles govern trade secrets in India, and they are primarily covered by contractual obligations under the Indian Contract Act, 1872, and protection of confidential material under the Copyright Act, 1957.

Basis the legal framework discussed above, one can take the following active steps, to protect their IP in India and create a strong IP portfolio for their Green IPR:

1. Firstly, identify your IP: The key to building a strong IP strategy is to identify the many intellectual assets that you get from the innovation you put into existence. Various IP regimes can take on different aspects of a single product or technology. For example a technical process might be treated as patentable, as may a brand name or logo, as even a trademark, and the visual appearance of a product comes under the rule of design law. An appropriate classification ensures every part of your innovation gets the right form of protection under Indian IP laws.
2. Maintain strict confidentiality: Be Sensitive to Confidentiality. Develop Detailed Non-Disclosure Agreements ("NDAs") Before releasing sensitive or proprietary data to stakeholders. Strong NDAs should be struck with employees, consultants, contractors, collaborators, and prospective investors. The role and importance of a confidentiality agreement regarding trade secrets and unpublished inventions are also recognized, in particular through early conversations/negotiations.
3. Implement strong access controls: It is imperative to have internal access control on trade secrets, so that sensitive information is shared only on a need-to-know basis. There are also initiatives including restricting digital access, maintaining secure data storage infrastructure, training employees and maintaining internal IP policy which are to reduce the risk of leaks and misuses, improve contract enforceability in a dispute.
4. Conduct comprehensive pre-filing searches: IP owners must also perform detailed patent and trademark searches as it determines the originality, registrability and commercial feasibility of the IP in India. These searches reveal the latest technology, market positioning and pricing for an accurate and realistic picture of what may be legally potentially risky. They offer businesses with information and resources to refine or reimplement their efforts (in other words, avoid conflicts that threaten legal legitimacy.)
5. File applications to register your IP: It is recommended to file applications under different IP Regimes at the earliest stage possible, basis the pre-filing search results

Background IP & Foreground IP

To establish a setting in the renewable energy space in India, an innovator often depends on collaborators such as research institutions, universities, or industry partners. Such collaborations significantly help localise new technologies and scale up commercialization by sharing financial risks and technical expertise. However, most disputes arise at the time of setting up such collaborations, on the question of ownership of the IP that came in originally and the IP created subsequently. At such time, effective IPR management becomes central to defining ownership, control and permissible use of the resulting innovations.

Background IP: Background IP refers to the pre-existing intellectual property that every party owns before entering into a collaboration. From patentable technology, software, technical know-how, proprietary data or existing trademarks, these IP assets are owned by either of the parties before entering into a collaboration. Rights to use these IP assets are licensed to the other collaborators.

Foreground IP: Foreground IP refers to the new IP created jointly after entering into a collaboration. Ownership of such foreground IP could be by either of the parties, or jointly by some or all parties. Disputes arise when ownership of foreground IP is not defined clearly.

Therefore, to avoid uncertainty and resultant disputes, it is imperative that collaboration agreements determine ownership of foreground IP and how it may be used and commercialized by each party. This includes specifying rights to exploit, license, or commercialise the IP. Some collaborations adopt joint ownership models, while others allocate ownership to one party with licensing rights granted to the other for defined purposes. Clear contractual allocation of IP rights is therefore essential to ensure smooth commercialisation and long-term collaboration success.

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.