By: Jason Anterasian
COVID-19 vaccines and new technologies fighting climate change face the same perils.
COVID-19 has upended the world and we are entering our third year of the pandemic. When the pandemic first emerged, private biopharmaceutical companies such as Pfizer, Moderna, and Johnson & Johnson quickly developed COVID-19 vaccines. Such rapid vaccine development was possible in part because these companies benefited from receiving government funding for COVID-19 vaccine research and development, advanced purchase orders from the government for the vaccines, or both. COVID-19 vaccines also built on prior decades of mRNA vaccine research that had been largely funded by the government. The biopharmaceutical companies now have patents on the vaccines and trade secrets on the manufacturing and commercializing of the vaccines, which have been cited as causes of the inequitable vaccine rollout throughout the world. According to the Global Dashboard for Vaccine Equity, 67% of individuals in high-income countries have been vaccinated with at least one dose of the vaccine as of January 5, 2022, compared to 11% in low-income countries. The divide between the developed and developing worlds has created problems globally, as it has produced breeding grounds for the virus, resulting in new variants such as Omicron that prolong the pandemic.
While COVID-19 may seem like a unique crisis, another global crisis is emerging: climate change. Like COVID-19, climate change has severe ramifications on global health, as extreme weather and natural disasters, extreme heat, environmental degradation and loss of biodiversity, water and food supply impacts, water quality impacts, and increased allergens and air pollutants all threaten public health. Rich, developed countries emit the most greenhouse gases today; in developing countries, quality of life is increasing and will continue to increase – which is fantastic – but this will come with increased greenhouse gas emissions, as there is limited ability for these countries to pay the higher costs that exist today for green technology. Similar to COVID-19 vaccines, new technologies must be invented and widely distributed throughout the developed and developing worlds to prevent (or slow down) a climate crisis. Governments are the largest funders of efforts to develop new green technologies. As these technologies are created, patents and trade secrets in the new technologies will inevitably exist. As a result, we must learn from the COVID-19 vaccine rollout and avoid intellectual property becoming a barrier to global access and adoption of new green technologies. A world in which only developed countries are using green technologies will not stop a climate crisis, as increased emissions in the developing world contribute to climate change, producing global effects.
Current laws and international agreements are insufficient solutions to disseminate green technologies.
Neither international agreements nor freedom of information laws provides a sufficient solution to ensure global access to new green technologies. The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) established minimum intellectual property standards for countries in the World Trade Organization (WTO), and its Article 7 encourages “dissemination of technology . . . . in a manner conducive to social and economic welfare.” TRIPS Article 31 also allows for compulsory licensing of patented technologies without authorization of rights holders in times of “national emergency or other circumstances of extreme urgency.” Given TRIPS’ support of technology dissemination, green technology’s contribution to public welfare, and a climate crisis likely constituting an “emergency,” compulsory licensing under TRIPS is an avenue countries could take to circumvent patents in green technology. However, compulsory licensing is an imperfect solution because it threatens to destroy incentives to innovate and can lead to backlash from patent owners and their home countries. Also, there are many new large and small green technologies that must be developed across all sectors of our lives, such as manufacturing, energy, agriculture, and travel, to avoid a climate crisis. This expansiveness makes it difficult to define the scope of which inventions would qualify for compulsory licensing.
Similarly, while over one hundred countries have freedom of information laws, these laws are likely insufficient to circumvent intellectual property barriers and produce global use of new green technologies. For example, the US Freedom of Information Act (FOIA) requires disclosure of recorded information held by public authorities, subject to listed exemptions. “Any person,” including foreign nationals, can file a FOIA request. A private company who partners with the government to build and test a green technology could have its information disclosed under FOIA, if the information is on the government’s records. However, trade secrets are explicitly exempted from FOIA (Exemption 4). Additionally, in 2019 the Supreme Court ruled in Food Marketing Institute v. Argus Leader Media that a private company’s information will remain confidential under this exemption as long as the company customarily and actually treats the information as private and provides it to the government under an assurance of privacy. As a result, Exemption 4 makes it difficult for the trade secrets of a private company’s new green technology to be disclosed under FOIA, preventing dissemination.
With proactiveness, patents, trade secrets, and tacit knowledge of green technology can be disseminated to the developing world.
Ultimately, advancements in green technology will come largely from funding by governments and innovation by companies in the developed world, and these technologies will come with patents, trade secrets, and tacit knowledge. However, applying the lessons from COVID-19 to climate change, we cannot let intellectual property become a barrier to the implementation of new green technologies in the developing world.
Governments must aid private companies in both the supply of green technologies by funding innovation and the demand for it by growing the market via policy changes, given how inexpensive current practices like fossil fuels are compared to green technologies. In exchange, governments must proactively look for ways to ensure these technologies can be disseminated throughout the world. First, with respect to patents, the government should be enough of a co-inventor/patent owner such that it can license the new technology to the developing world at no additional cost compared to current alternatives. Second, with respect to trade secrets, the government should require private companies to disclose helpful information related to green technology, to enable the developing world to manufacture and commercialize the technology. This can be done by requiring private companies to spend certain amounts of time counseling and partnering with their peers in the developing world, and also by requiring private companies to contribute knowledge to global organizations such as the Green Climate Fund that work to aid developing countries in combating climate change. Third, with respect to tacit knowledge, to the extent it is not a trade secret but is documented, tacit knowledge can be disclosed under freedom of information laws such as FOIA.
Ultimately, the COVID-19 pandemic has shown the increasing connectedness of our world and the importance of global adoption of new technologies to solve global challenges. The US government and governments of the developed world should learn from COVID-19, and beyond funding supply for new green technologies to fight climate change, they should leverage their influence to ensure broad global access to these new technologies. If this is done, some of the IP pitfalls that have prolonged the COVID-19 pandemic can be avoided in the fight against climate change.