Archive for the ‘Policy & Initiatives’ category

San Diego Clean Tech Open Biz Briefing to Highlight Eco-marks and Green Patent Perspectives

April 7th, 2014

If you’re in or around San Diego this week be sure to check out the Clean Tech Open Business Briefing this Thursday, April 10th.

The Cleantech Open is a non-profit organization that runs the world’s largest cleantech accelerator.  The Business Accelerator fosters promising startups in cleantech fields through a six-month program that includes cutting-edge entrepreneur training and mentoring (including in IP!), client and partner opportunities, and funding connections.

The business briefings bring together Clean Tech Open members and staff and early-stage clean tech start-ups and entrepreneurs.  Attendees will get an overview of the Cleantech Open and the Business Accelerator.

I will be speaking on some broad themes about the role of patents in the clean tech industry.  Entitled “Green Patents and Green Branding:  Global Perspectives and News You Can Use,” my talk will cover a range of big picture stuff and practical info on green patenting and protecting eco-marks.

The event will be held at the World Resources SimCenter in downtown San Diego from 6:00-8:00 PM.  You can find more information about the event and register here.

In Legal Industry First, GLA McKenzie Long & Hugeo Opens Antarctica Office

April 1st, 2014

GLA McKenzie Long & Hugeo announced today the opening of an Antarctica office.  The new office is the firm’s 683rd location, following yesterday’s opening of an outpost in the Kufra basin and oasis group in the Sahara desert.  GLA is the first law firm to open an office in Antarctica.

Located in the prestigious Coats Land region of East Antarctica, the office will provide the firm’s clients and staff with easy access to the Shackleton Range, the Filchner Ice Shelf, and of course, the South Pole.

The office will be headed by Winchell Cooke, a partner in the firm’s Environmental Law practice group who will relocate from Nuuk, Greenland.   Cooke, who billed 198 hours in 2013 and has $207,412.51 in A/R from the last two years, could not be reached for comment.

“We are extremely pleased to be the first international law firm to open an office in Antarctica,” said GLA Managing Partner Thaddeus “Chip” Buckley.  ”Our Antarctica practice has grown substantially over the past few weeks, particularly in the areas of environmental law, climate change, maritime law, and dogsled expedition law, and having GLA lawyers in Coats Land will allow us to more efficiently and effectively serve both our locally based clients and our international clients doing business in Antarctica.”

“Our firm offers its clients unparalleled global reach,” he added.

GLA has had a vibrant polar practice for more than two weeks.  With at least three lawyers who do cross-country skiing (including one associate also adept at snow-shoeing), the firm offers a talented and deep team of ice-ready attorneys.

 

“Unparalleled Global Reach”

This is likely to be just the first step for GLA in Antarctica, the fifth-largest continent in area after Asia, Africa, North America, and South America.  Buckley said the firm is looking to add another office in West Antarctica very soon, and is scouting locations in Palmer Land along the Antarctic Peninsula.

Don’t rule out the North Pole either, Buckley said.  The combination would fit well with the firm’s culture because many GLA lawyers exhibit behavior that is “clinically bipolar.”

GLA Managing Partner Chip Buckley and members of the firm’s Strategic Growth Committee visit potential office space in East Antarctica.

GLA is the world’s largest law firm, with over 80,000 lawyers worldwide, and has gone on an explosive growth spree in the last few years, acquiring more than 450 smaller firms.

We caught up with Buckley as he concluded a conference call with GLA’s 692 practice group chairs.  He told Green Patent Blog that the recent expansion by GLA highlights a major advantage of the firm:  its “unparalleled global reach.”  According to Buckley, that has been very attractive to clients as GLA has been able to maintain and add thousands of clients during its recent period of rampant acquisitions.

 

“A Dizzying Array of Options for Getting Around Conflicts”

While mergers and acquisitions often create conflict problems that lead to lost clients and missed engagement opportunities for global law firms, Buckley said GLA has been able to avoid those issues.  The solution for GLA has been to organize the firm under an innovative Bulgarian corporate structure called a Melaeighn (pronounced “malign”).  With 19 offices in Bulgaria, GLA has the legal right to operate as a domestic Melaeighn.

Advantageously for GLA, a Melaeighn allows all of the firm’s offices to be governed by Bulgarian legal ethics rules.  While those rules allow lawyers substantial flexibility in resolving conflicts between and among client matters handled by different offices, the key advantage, according to Buckley, is that the Bulgarian legal ethics rules have a liberal choice of law provision that allows the law firm to operate pursuant to the most lax legal conflict rule of all the jurisdictions the firm is operating in.

“With nearly 700 offices in over 180 jurisdictions, our attorneys have a dizzying array of options for getting around conflicts.  We basically have license to do anything we want in terms of representing adverse parties, even in concurrent litigation and transactions.”  Buckley said.

“It’s like Christmas every day!” said a partner in the firm’s highly lucrative Intellectual Property department who did not wish to be named.

While the flexibility in avoiding conflict issues is a boon for GLA lawyers, some legal industry analysts questioned whether clients might be displeased with the prospect of their counsel suing them on behalf of their direct competitors.

Buckley brushed off the concern.  ”We’re confident that current and prospective clients will conclude that the advantage of being represented by the largest and most prestigious law firm in the world outweighs any potential loyalty issues.”  He added that GLA has “unparalleled global reach.”

 

“Informed Consent Through Our LAWDICK”

“Besides,” Buckley said, “we provide full disclosure and always obtain informed consent through our legitimate advance waiver of disloyalty-induced conflict contract (LAWDICK) provision, which I ordered to be inserted into all of our engagement letters.  The LAWDICK is a neat little trick we picked up from the legal conflict rules in Zimbabwe,” where GLA has nine offices.

Standard in GLA engagement letters, the LAWDICK requires a client to waive any conflicts that would arise by the firm taking engagements adverse to the client and applies both retroactively and prospectively.

Buckley was coy about the language of the LAWDICK provision, but Green Patent Blog was able to obtain a copy of the firm’s standard engagement letter from an unnamed source.  (Literally.  For administrative efficiency, GLA has stripped its associates of names and identities in favor of an internal numbering system.  The engagement letter was provided to us by Associate No. 52,961).

An excerpt of GLA’s cutting edge LAWDICK is reproduced below:

GLA McKenzie Long & Hugeo is a law firm of tens of thousands of lawyers and non-lawyer professionals in over 180 jurisdictions around the world and is involved in all kinds of business dealings, negotiations, and disputes with other clients of the firm.  In consideration of GLA’s acceptance of this engagement, the Client agrees that GLA may, in the past, present, or future, and throughout all time, anywhere in the Universe, represent existing or new clients in any matter relating to the Client, including, without limitation, litigation against the Client, negotiations directly or indirectly adverse to the Client or the Client’s interests, even if substantially related to this representation or any other matters GLA has had, currently has, or will have with the Client.  The Client further agrees that GLA may represent direct competitors of the client in matters directly or indirectly adverse to the Client or the Client’s interests and/or may represent employees, officers, affiliates or subsidiaries of the Client in matters directly or indirectly adverse to the Client.  The Client waives any and all rights to object to any such matter as described above.  This waiver notwithstanding, the Client agrees that GLA is completely and utterly loyal to the Client and will always act as a zealous advocate for the Client (unless of course another engagement comes along that could generate higher fees for GLA than those generated by working on matters for the Client).  Any questioning of GLA’s loyalty to the Client by the Client will be deemed a material breach of this agreement and will be grounds for termination of this agreement.

In any event, it seems clear that GLA will continue to grow and will be the largest international law firm for a long time to come.  Buckley told us that he is committed to exponential growth as he emphasized the firm’s “unparalleled global reach.”

He views the expansion as a major part of his legacy as managing partner.  ”That, and the firm LAWDICK inserted at my insistence.”

Even with 682 other locations, Buckley said he is particularly proud of the new Antarctica office and summed up its significance for the firm:

“These days there may be other international law firms that can say the sun never sets on their offices, but GLA is the only firm that can say the ice never melts on our offices.”

“Plus,” he added, “GLA provides unparalleled global reach.”

Green Patent Fast Track Opens in Taiwan

March 11th, 2014

It’s been a while since a national intellectual property office has seen fit to open a fast lane for green technology patent applications.  So the recent announcement out of Taiwan is welcome news.

The Taiwan Intellectual Property Office (TIPO) now includes green technology as a new category of application or invention eligible for expedited examination under TIPO’s existing Accelerated Examination Program (AEP).

TIPO is defining green technologies broadly (as I have argued is important for boosting participation in these programs); the application is eligible if the invention is:

  • related to energy saving, new energy or automobiles powered by new energy;
  • related to energy saving and carbon reduction

One drawback of TIPO’s fast track program is its publication requirement; to qualify for the AEP a patent application must have published before the applicant makes the AEP request.

Because Taiwan is not a PCT contracting state (i.e., it does not participate in the international patent application system), non-Taiwanese applicants must file their applications in TIPO within one year of their original home country filing date.  And because patent applications typically publish 18 months after their original filing date, that means non-Taiwanese applicants must wait an extra six months or so after filing their application in Taiwan to request expedited examination there.

The TIPO fee for accelerated examination of a green technology patent application is NT$4000 (about $134 USD), and the applicant need only submit a written request explaining that the invention in the subject patent application relates to green technology.

The time saved under the AEP is substantial.  According to this article, it takes about 29 months to receive a first office action during ordinary examination in TIPO; under the AEP TIPO issues a first office action in about nine months.

U.S. Trade Agency’s China Focus Good for Green Tech Companies

February 11th, 2014

The Office of the United States Trade Representative (USTR) is the federal agency responsible for conducting trade negotiations and developing and coordinating U.S. trade policy.

As it did last year, the USTR will again make intellectual property rights (IPR) a top priority in trade relations with China in 2014.  While Hollywood movie copyrights and drug patents may be the first IPRs that come to mind, IPR in green technologies could also be heavily impacted by the USTR’s attention to China.

The copyright and trade secret dispute between American Superconductor (AMSC) and Sinovel (see, e.g., previous posts hereherehere and here), a Chinese wind turbine manufacturer, highlights the risks of doing clean tech business in China and provides an indication of what is at stake for green IPR holders.

In that case, AMSC accused Sinovel of unauthorized use of its turbine control software source code and the binary code, or upper layer, of its software for certain power converters used in its 1.5 MW turbines.  AMSC alleged that Sinovel illegally used the source code to develop a software modification so Sinovel could circumvent the encryption and remove technical protection measures on the power converters.

The U.S. government – not the USTR, but the Department of Justice – got involved when it filed an indictment in federal court in Wisconsin alleging that Sinovel, two of its employees, and a former AMSC employee conspired to commit trade secret theft and criminal copyright infringement.  According to the indictment, AMSC was cheated out of $800,000,000.

By tying IP to trade, The USTR may be able to obtain tangible improvements such as tougher laws and improved enforcement measures.  Hopefully, this could cause a larger shift in attitude in China toward one of respect for IPR, a change that would help both US and Chinese clean tech companies.

Of course, the USTR’s bailiwick extends beyond IP, and the clean tech industry benefits from its other activities as well.   Most notable, perhaps, was the joint effort of the USTR and U.S. Customs and Border Protection to enforce trade duty orders against Chinese solar panel makers engaged in unfair trade practices.

US-Chinese relations are a hot topic in clean tech.  Indeed, one of the panels at this year’s UC Hastings Cleantech Roundtable is entitled “Beyond Trade Wars:  Enhancing US-China Clean Tech Relations.”

Guest Post: Matthew Rimmer on Fossil Free Patent Law

January 21st, 2014

Patent law has a dirty history. A legal mechanism refined in the industrial revolution, patent law has sought to encourage manufacturing and industry – the ‘Progress of Science and the Useful Arts’. Patent law has provided incentives for research and development for a wide range of polluting technologies, such as oil, coal, gas.

The world’s largest oilfield service providers have built upon a large portfolio of patents to protect their research and development. Baker Hughes obtained 138 patents in 2012 and 368 patents in 2013. Schlumberger’s patents rose to 588 in 2013 from 235 in 2012. Halliburton’s patents rose to 301 in 2013.

Halliburton was awarded more than $35 million in damages after winning a federal trial in Dallas in February 2012 against Weatherford International Ltd. over a patented tool used in well bores.

The major fossil fuel companies – Chevron, ExxonMobil, Shell, BP and ConocoPhilips – have also built large portfolios of intellectual property, relying upon patent law, trade mark law, and trade secrets.

There have also been efforts to patent new techniques and strategies in respect of ‘fracking’ – hydraulic fracturing. Daniel Cahoy and his colleagues argue that Fracking Patents have emerged as a means of Information Containment. 

Increasingly, environmental groups and climate activists have challenged investments in fossil fuels.

Bill McKibbin of 350.org has emphasized that oil, coal, and gas companies are radicals because ‘they’re willing to alter the chemical composition of the atmosphere to make money.’ He maintained that such companies should lose their social license and respectability: ‘If it is wrong to wreck the climate, then it is wrong to profit from that wreckage’.

Accordingly, 350.org has organised a fossil fuel divestment movement. The organisation has encouraged university and educational institutions to divest themselves of fossil fuel stocks. Cities such as Portland, Seattle, and San Francisco have pushed ahead with fossil fuel divestment policies in relation to city pension funds. Superannuation funds and sovereign funds have been encouraged to engage socially responsible investment.

It is only a matter of time before environmental and climate activists challenge the validity of fossil fuel investments in respect of intellectual property.

Recently, there has been much debate about the limits of patentable subject matter in the courts. The Supreme Court of the United States has sought to narrow and limit the boundaries of patentable subject matter in a trilogy of cases – Bilski v. Kappos; Mayo v. Prometheus; and Association of Molecular Pathologists v. Myriad Genetics.

There is a growing debate whether there should be limits in respect of patentability in respect of polluting technologies. Article 27 (2) of the TRIPS Agreement 1994 recognises that ‘members may exclude from  patentability inventions… [in order] to avoid serious prejudice to the environment’.

Professor Estelle Derclaye from the University of Nottingham has argued that ‘patent offices could either not grant patents for any invention which emits CO2 or make a cost-benefit analysis in terms of the value of the invention for society and the levels of CO2 emitted.’ Examining European law, she suggests: ‘Applying these principles to global warming, it could mean that the cost-benefit analysis test could be used only if there is evidence that a specific invention causes actual damage or disadvantage to the environment.’

In the past, there have been civil society groups and activist movements which have sought to challenge the patentability of controversial subject matter. Thus, there has been a concerted push by the free software movement to prohibit patents in respect of software. There have been demands to abolish business method patents particularly in light of the Global Financial Crisis. Organic farmers, consumer rights’ activists, and environmental groups have protested over the granting of patents in respect of genetically modified crops.

In the field of health, there has been concern in respect of the patent eligibility of methods of human treatment, genetic testing, and stem cells. Greenpeace has been particularly active in challenging patents in the field of biotechnology. There has been much concern about the problem of biopiracy – particularly amongst developing countries and least developed countries. Futurists like the ETC Group have worried about the grant of patents in respect of emerging technologies – such as nanotechnology, synthetic biology, and geo-engineering.

It is inevitable that environmental groups and climate activists will push for a ban on patents in respect of fossil fuels – such as oil, gas, and coal. It is also likely that civil society groups will engage in patent-busting, and challenge the validity of individual patents held by fossil fuel companies.

There will also be a further push to reform the patent regime to encourage the development of clean technologies and renewable energy. Francis Gurry, the Director-General of the World Intellectual Property Organization, has commented:

Human activity, including decades of technological development, has damaged our planet. Wide-spread pollution and spiraling consumption of the world’s mineral and biological reserves have put unprecedented stress on the environment. Climate change is one of the greatest threats ever faced by society: glaciers are disappearing; desertification is increasing; in Africa alone, between 75 and 250 million people will face increased water shortages by 2020.

Gurry has maintained: ‘As human activity caused the problem, so too can human activity find the solutions’. He has insisted: ‘Green innovation – the development and diffusion of technological means to tackle climate change – is key to halting the depletion of the earth’s resources.’

There is a need for patent law to become fossil fuel free, and support research and development in respect of clean energy.

 

*Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change.  He is an associate professor at the ANU College of Law, an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA), and a director of the Australian Digital Alliance.

WIPO GREEN Launches Interactive Marketplace for Green Technologies

December 10th, 2013

 

A previous post, written by guest blogger Tim Stirrup, discussed the World Intellectual Property Organisation’s (WIPO) WIPO GREEN platform, an initiative that recently launched after operating for a while in pilot and test mode.

WIPO GREEN helps to match green technology innovators with commercialization partners by providing an interactive marketplace including a searchable database and a service network.  Innovators can upload their green technologies into the database and make contact with potential partners via the network to explore potential licensing or partnership agreements. 

The database also enables users to input specific green technology needs with calls to innovators to meet those needs with environmentally sound technologies.

The service network component of the initiative facilitates partnerships through a list of partners and descriptions of their businesses, a registry of service provides, and a list of potential funding sources. 

According to WIPO’s article on the launch, the pilot and testing phase saw about 1,000 uploads of green technologies, inventions and patents into the database, and the program has 35 partners including the Association of University Technology Managers, the East Africa Climate Innovation Network, and the Japan Intellectual Property Association.

Licensing of any intellectual property relating to the green technologies is governed by individually negotiated agreements between the parties involved.

Giving the WIPO GREEN database a brief spin reveals 548 hits in the alternative energy production category, 263 in waste management, 112 in energy conservation, and 29 in transportation.

WIPO Director General Francis Gurry said the organization’s ”growing network of partners and innovative collaborations with major global technology databases” should further its goal, i.e., ”for WIPO GREEN  to become a go-to-platform for green technologies” and facilitate the role of “innovative green technologies  . . . in addressing climate change.”

Solar Surge: CEPGI Q2 Report Shows Solar Patents in Top Spot

November 19th, 2013

The Clean Energy Patent Growth Index (CEPGI) recently released its Second Quarter 2013 Results.  Researched and published by the Heslin Rothenberg law firm, CEPGI is a quarterly report on green patents issued in the United States.

CEPGI has been tracking green patent trends by technology sector, assignee, and geography since 2002.  Throughout all of that time, fuel cell patents have topped the charts for every single quarter.

The big news in the Q2 2013 results is that solar patents beat out fuel cell patents for the first time, surging ahead with a jump of 29 granted patents relative to the first quarter of the year.  All told, there were 246 solar patents granted in the second quarter, with fuel cell patents in second place at 209.  Year-on-year, solar patents were up 35.  According to CEPGI:

Solar patents’ quarterly win makes clear that innovation in this sector continues at a rapid pace despite the failures and consolidations of solar firms across that board that dominate cleantech media reports.

Wind patents were in third place with 141, and hybrid-electric vehicles took fourth place with 94 patents granted in the quarter.  Biofuel/biomass patents dropped one from the first quarter to 47 while tidal patents were up three to 22.

The top green patentee for the second quarter was Toyota, which had 48 patents granted, mostly in the field of fuel cells.  General Motors was in second place with 45 granted green patents, 35 of which were fuel cell patents.  On the strength of 22 wind patents, General Electric was in third place with 26 granted patents, while Samsung took fourth place with 22.  The rest of the top ten included Honda, Ford, Mitsubishi, Siemens, Hyundai, and SunPower.

CEPGI also breaks out its data by jurisdiction, looking at the countries and individual U.S. states of green patentees.  Japan was the Q2 leader with 147 green patents granted.  California took second place with 86 patents, followed by Michigan (72), Korea (51), and Germany (39) in the top five.  New York and Taiwan each had 35 granted green patents in the second quarter, followed by Texas, Massachusetts, Denmark, Colorado, France and Canada.

Article Distinguishes Green “Tech” IP and Green “Non-Tech” IP

November 12th, 2013

A recent article written by Jonathan M.W.W. Chu and published in the Washington and Lee Journal of Energy, Climate, and the Environment takes another look at the role of intellectual property in green technology innovation.

Entitled “Developing and Diffusing Green Technologies:  The Impact of Intellectual Property Rights and their Justification,” the piece covers much familiar ground including discussions of the meaning of green technology and traditional justifications for IP protections.

The article also touches on many green IP and climate change topics previously explored in more detail elsewhere such as the notion of technology as the solution to global warming, access to green technologies, international transfer of green technologies, and green patent fast track programs.

The main contribution of this piece is to break down green IP into what Chu calls “Technological IP” and “Non-Technological IP,” a division he draws from the TRIPS Agreement and an IP and climate change book by Professor Matthew Rimmer

According to the article, Technological IP are rights in green technology, including patents, copyright in software code, semiconductor chip protection, trade secrets and know-how, while Non-Technological IP are rights in relation to green technology, such as trademarks around such technologies (what I call eco-marks), design rights, and other copyrights.

Chu posits that the two categories of green IP have different impacts on development and diffusion of green technologies. 

On Technological IP and patents, the article stipulates that continued innovation will lead to lower costs but says “the more immediate and direct impact” of patents “still appears to negatively impact diffusion of the technology.” 

More particularly, the article concludes that we are heading toward situations in which green patents will block key technologies:

[W]ith green technologies becoming more refined and focused, the narrowing of available technologies will increase the likelihood of a patent covering and controlling a single technology.

On the one hand, Chu may be right that continuing incremental improvements could result in patents that cover a “single” technology.  On the other hand, would that really be a problem? 

For a very focused, and presumably narrow, patent the ability to control that patented technology means little when there are older, broader related technologies out there.  Also, the narrower and more focused a patented invention is, the easier it is to design around it.

The piece also cites copyrights on ”Green Operation Software” necessary for operation of green technologies as an example of Technological IP that could hinder their development and diffusion. 

Chu may be on firmer ground here, and the AMSC-Sinovel civil litigation in China and criminal case in the United States (see, e.g., here and here) involving software code for wind turbine control systems demonstrate the impact such copyrights can have in the clean tech industry.

On the other hand, copyrights in software protect only the specific code sequences, which can be written in different non-infringing ways to achieve the same functionality.

The article discusses green brands, including trademarks and certification marks, and concludes that they are having a positive impact on diffusion of green technologies.  On this score, the piece notes that trademark rights translate into revenue (but so do patent rights, I would add) that can be used for further R&D, and the associated marketing is necessary for the diffusion of innovation.

I agree that certification marks such as ENERGY STAR are largely positive and effective in promoting green innovation by rewarding manufacturers that meet energy efficiency standards and aiding sales of products that lead to energy savings.

The article’s treatment of design rights is thin and conclusory, positing that they “should not pose any serious hurdle” to green tech innovation.  The piece would have benefitted from a more thorough and balanced discussion on this, including consideration of design patent litigation, such as the expensive battle between Nichia and Seoul involving four LED design patents, which included allegations of antitrust violations.

One need only look at the Apple-Samsung smartphone wars to understand that design patent rights can be very powerful.

While it could have been developed further, I like this article’s treatment of green IP as bifurcated into Technological IP and Non-Technological IP.  It provides an interesting prism through which to view green IP and its role in green innovation.

Market Report: New Study Finds Green Patents and Green Innovation Cannot Live on R&D Alone

October 28th, 2013

A new report published recently in the journal PLOS ONE shows a steep rise in rates of renewable energy patenting over the last decade.  Of course, that in itself is not novel or interesting.

What is new and interesting is the study’s key findings about the determinants of such patenting activity.

Conducted by Luis Bettencourt of the Santa Fe Institute, Jessika Trancik of MIT and Jasleen Kaur of Indiana University, the study is entitled “Determinants of the Pace of Global Innovation in Energy Technologies” (see MIT’s piece about the study here).

The authors used patenting activity as a proxy for innovation and analyzed trends in R&D funding in an attempt to figure out the drivers of energy innovation.

The authors first built a global database of about 73,000 energy patents covering the period of 1970-2009, a database they call “unique in its temporal and geographical scope.”

While the patent data showed rapid growth over the last decade particularly in renewable energy patents such as wind and solar, with annual growth rates of 19% and 13%, respectively, there were not commensurate rises in public or private R&D during this period. 

Thus, the authors posit, direct R&D funding cannot be the main driver of patent growth:

These trends contradict a picture of patenting in energy technologies that is primarily driven by inputs in public R&D investment.  They point to the relevance of opportunities resulting from the growth of markets, which drives an increase in both explicit private R&D funding and other forms of investment that generate innovative activity.

So the authors developed a model to explain the non-linear response.  Their model shows that as markets for particular technologies materialize, investments in continued innovation are increasingly driven by market growth, sometimes creating a cycle of rapid innovation:

[T]he model demonstrates that a virtuous innovation cycle formed by R&D support and market growth can account for the sharp increase in energy patenting observed in recent years.

More particularly, it is the interplay and synergy between the market and traditional public support that is critical:

We find that both market-driven investment and publicly-funded R&D act as base multipliers for each other in driving technological development at the global level.

The report provides some consolation for those of us who would like to see a coherent climate change policy to promote green technology innovation.  The authors conclude that green innovation has been progressing and may continue to do so even in the absence of coordinated international climate change policies:

The suggestion of the dependence of global patenting trends on the aggregate scale of research funding and markets, rather than the details of policy instruments and other incentives, is important because of the diversity of public policies at finer geographical scales and limited ability to coordinate these policies across national borders.  Similarly, the apparent persistence of knowledge over long time periods is an important result given the variability (and lack of continuity) in policies over time.

 

Greenwashing 2.0 Published

October 7th, 2013

I’m pleased to announce that my article – Greenwashing 2.0 - was published at the end of September in the Columbia Journal of Environmental Law (CJEL).  The current issue of CJEL can be found here.

In this piece, I argue that discussions of greenwashing are unduly restricted to cases in which an individual consumer, a class of consumers, or a consumer watchdog such as the FTC challenges a company making false or misleading green B-to-C claims about its products or services.

To put greenwashing in its proper context I think we should consider a wider range of cases, some of which are not immediately recognizable as instances of greenwashing.  More particularly, new paradigm greenwashing actions are brought by or on behalf of commercial consumers and involve B-to-B communications and representations.

Examples are breach of contract cases involving wind resource estimates and cogeneration equipment (see, e.g., here and here), eco-mark infringement suits over environmental compliance software and counterfeit solar panels (see, e.g., here and here), and civil and criminal fraud cases brought by governmental authorities for environmental crimes and sale of invalid renewable fuel credits (see, e.g., here and here).

From this broader vantage point, and keeping in mind the definition of greenwashing – making false or misleading claims about purportedly environmentally friendly products, services, or practices – I argue that we will be able to recognize, observe and understand the full scope of the greenwashing problem.

CJEL does not include abstracts in its articles, so I’m pasting my abstract in here:

For over forty years, environmental awareness and concerns about the environmental impact of products, services, and business practices have influenced consumer decision-making, corporate advertising, and marketing strategies.  As the purchasing power of green consumers has grown, the instances of marketers making false or misleading advertising claims about environmental benefits—“greenwashing”—have multiplied from an occasional irritant to a ubiquitous practice with major ramifications for the struggle to mitigate climate change.  Throughout, the paradigm for investigating, studying, and combating greenwashing has been to focus on claims by companies engaged in marketing consumer products to individual consumers and the effects of those claims on consumers. That was justifiable because, until fairly recently, nearly all instances of greenwashing involved such scenarios, and the vast majority of greenwashing legal actions were brought by or on behalf of individual green consumers.  But that view of greenwashing has become antiquated and is too narrow to account for greenwashing activity today.  Now that we are in the midst of the first sustained clean tech revolution, there is greatly increased commerce in green technologies, much of which is business-to-business.  The clean tech boom has given rise to a spate of lawsuits involving alleged false and deceptive representations about the genuineness, reliability, and efficiency of green technology equipment and related services.  The limited historical view of the traditional greenwashing paradigm misses this new species of cases entirely, perpetuating a significant greenwashing “blind spot” and leading to a gross underestimation of the scope and impact of greenwashing activity today.  This article argues that we need a new paradigm that takes a broader view of the phenomenon of greenwashing.  Specifically, we should look beyond the traditional paradigm of greenwashing, which is limited to deceptive marketing of consumer products to individual consumers, and contemplate a wider variety of cases that include representations made to green commercial consumers and legal actions brought by and on behalf of commercial consumers.  By changing the greenwashing paradigm in this way and defining it more expansively to reflect the commercial realities of the clean tech revolution, we will eliminate the blind spot and provide the broader vantage point necessary to identify and understand new instances of greenwashing.