Negative-Emission Technologies and Patent Rights after COVID-19

In: Climate Law
Joshua D. Sarnoff DePaul University College of Law, Chicago, USA

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Governmental and particularly private funding has recently and dramatically expanded for both beccs and dac technologies. This funding and the associated research, development, and deployment efforts will generate intellectual property rights, particularly patent rights in nets. As with access to medicines, the COVID-19 pandemic has highlighted concerns that patent rights may incentivize RD&D at the cost of affordable access to the relevant technologies. Further, access may be restricted to particular countries based on sovereignty concerns to seek preferential supply agreements through up-front funding. As a result, nations will likely turn to controversial ex-post measures, such as compulsory licensing, to assure access and to control prices of the needed technologies. The same concerns with patent rights likely will affect RD&D of nets. Although international ex-ante measures exist (such as patent pools) which would help to minimize these concerns, such measures may not induce the requisite voluntary contributions, or may fail to materialize due to political disagreements. Focusing on both US law and international developments, this article proposes various ex-ante measures that can be adopted by national governments and private funders to minimize the likely forthcoming worldwide conflicts that will arise over balancing innovation incentives for, and affordable access to, patented nets.

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