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1755 Massachusetts Ave., NW Suite 700 Washington, D.C. 20036 – USA T:•(+1-202) 332-9312 F: (+1-202) 265-9531 E: info@aicgs.org www.aicgs.org 45 AICGS POLICY REPORT INTELLECTUAL PROPERTY RIGHTS AND GREEN TECHNOLOGY TRANSFER: GERMAN AND U.S. PERSPECTIVES Located in Washington, D.C., the American Institute for Contemporary German Studies is an independent, non-profit public policy organization that works in Germany and the United States to address current and emerging policy challenges. Founded in 1983, the Institute is affiliated with The Johns Hopkins University. The Institute is governed by its own Board of Trustees, which includes prominent German and American leaders from the business, policy, and academic communities. Robert V. Percival Building Knowledge, Insights, and Networks for German-American Relations Miranda A. Schreurs AMERICAN INSTITUTE FOR CONTEMPORARY GERMAN STUDIES THE JOHNS HOPKINS UNIVERSITY TABLE OF CONTENTS Foreword 3 About the Authors 5 The American Institute for Contemporary German Studies strengthens the German-American relation - Strategies for Promoting Green Energy Innovation, Deployment, ship in an evolving Europe and changing world. The Institute produces objective and original analyses of and Technology 7 developments and trends in Germany, Europe, and the United States; creates new transatlantic networks; and facilitates dialogue among the busi - German Perspectives on Ecological Modernization, Technology ness, political, and academic communities to manage Transfer, and Intellectual Property Rights in the Case of Climate differences and define and promote common inter - ests. Change 61 ©2010 by the American Institute for Contemporary German Studies ISBN 978-1-933942-31-5 ADDITIONAL COPIES: Additional Copies of this Policy Report are available for $5.00 to cover postage and handling from the American Institute for Contemporary German Studies, 1755 Massachusetts Avenue, NW, Suite 700, Washington, DC 20036. Tel: 202/332-9312, Fax 202/265-9531, E-mail: info@aicgs.org Please consult our website for a list of online publications: http://www.aicgs.org The views expressed in this publication are those of the author(s) alone. They do not necessarily reflect the views of the American Institute for Contemporary German Studies. intellectual property rights and green technology transfer FOREWORD While environmental concerns have recently taken a backseat to the economic and financial crisis, scientific projections on climate change continue to call for action. Yet, international cooperation has been hampered and a rift between developed and developing nations is increasingly evident. Developed nations charge that a reduction in emissions is not possible without a similar commitment from developing countries, whereas developing countries fear that their economic growth will be hampered by severe restrictions. Intellectual prop - erty rights also play a role in the disagreements. Companies in the developed world that spend considerable amounts of money on the research and development of energy efficient and clean energy technology are inter - ested in recouping those investments through property rights. Developing nations as well as environmental and climate advocates contend, however, that such technology must be made available to all nations for the betterment of the developing countries and the world as a whole. This Policy Report examines American and German views on this contentious issue. In his essay, Robert Percival from the University of Maryland School of Law first outlines various strategies for promoting the devel - opment and deployment of green energy technology. The author then turns to intellectual property laws and their influence on green energy innovation. Miranda Schreurs from the Freie Universität Berlin examines why technology transfer and intellectual property rights are key issues in climate policy and what role technology transfer has played so far, focusing especially on the German and European view on these issues. Both essays provide important insights into the climate policy debate as well as the aspect of intellectual property rights and add important policy recommendations for policymakers on both sides of the Atlantic. This publication is an example of AICGS’ commitment to furthering transatlantic discussion on the global issues of climate change and energy sustainability and builds on previous projects on those topics. AICGS is grateful to the authors for their insights, the Daimler-Fonds im Stifterverband die Deutsche Wissenschaft for its generous support of this publication, and to Jessica Riester and Kirsten Verclas for their work on the publication and project. Jack Janes Executive Director 3 intellectual property rights and green technology transfer 4 intellectual property rights and green technology transfer ABOUT THE AUTHORS Professor Robert V. Percival is the Robert F. Stanton Professor of Law and the Director of the Environmental Law Program at the University of Maryland School of Law. He earned a B.A. summa cum laude in 1972, from Macalester College, and M.A. and J.D., 1978, from Stanford University. While in law school, Prof. Percival served as managing editor of the Stanford Law Review and he was named the Nathan Abbott Scholar for grad - uating first in his law school class. Prof. Percival served as a law clerk for Judge Shirley M. Hufstedler of the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice Byron R. White. He joined the Maryland law faculty in 1987 after serving as a senior attorney with the Environmental Defense Fund. Prof. Percival is internationally recognized as a leading scholar in environmental law. He is principal author of the most widely used casebook in environmental law in the United States, Environmental Regulation: Law, Science & Policy, now in its sixth edition. Prof. Percival has taught as a visiting professor of law at Harvard Law School in 2000 and 2009 and at Georgetown University Law Center in 2005. In 2008 he served as a J. William Fulbright Distinguished Lecturer at the China University of Political Science and Law in Beijing. He previously taught as a Fulbright scholar at Comenius University Law School in Slovakia. Prof. Percival is currently working on the first casebook on Global Environmental Law to be published in 2011 by Aspen Publishers. Prof. Dr. Miranda Schreurs is the Director of the Environmental Policy Research Center and Professor of Comparative Politics at the Freie Universität Berlin. Prior to this she was Associate Professor in the Department of Government and Politics, University of Maryland. Prof. Dr. Schreurs' work focuses on comparative envi - ronmental politics and policy in Europe, the U.S., and East Asia. She was born and raised in the United States and has also lived for extended periods in Japan and Germany and briefly in the Netherlands. Her Ph.D. is from the University of Michigan and her M.A. and B.A. from the University of Washington. She has also spent time researching or teaching at Harvard University, Utrecht University, the Freie Universität Berlin, Keio University, Chuo University, and Rikkyo University and has held fellowships from the SSRC-MacArthur Foundation Program on International Peace and Security Affairs, the Fulbright Foundation, and the National Science Foundation/Japan Society for the Promotion of Science. In July 2008 Prof. Dr. Schreurs was appointed to the German Advisory Council on the Environment. Her recent publications include “Conflict and Cooperation in Transatlantic Climate Politics: Different Stories at Different Levels” and “Expanding Transatlantic Relations: Implications for Environment and Energy Politics.” 5 01 intellectual property rights and green technology transfer STRATEGIES FOR PROMOTING GREEN ENERGY INNOVATION, DEPLOYMENT, & TECHNOLOGY TRANSFER ROBERT V. PERCIVAL 1 Global climate change represents the most difficult tax schemes could create comprehensive, predictable environmental challenge facing the world today. The incentives for making the necessary transition to struggle to reach consensus on a global policy for green energy technology. It acknowledges the potent responding to it has exposed sharp divisions between political headwinds facing such policy proposals and developed countries and the developing world. There explores ways of overcoming them. is wide recognition that a global transformation toward a green energy infrastructure is necessary, The paper then examines claims that intellectual prop - but considerable uncertainty over the best means for erty law, which is designed to create incentives for bringing this about. While technological innovation innovation, actually may inhibit the transfer to devel - can play an important role in reducing greenhouse oping countries of green energy innovations. While gas emissions, developing countries fear that princi - the paper cannot find significant examples of green ples of intellectual property law will hinder the transfer energy technologies whose diffusion has been of green energy innovations to them. hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing This paper surveys various strategies for promoting schemes, for responding to such problems if and the development and deployment of green energy when they arise in the future. The paper concludes technologies. Governments around the globe have that intellectual property law need not be an obstacle adopted a vast array of subsidy, tax, and regulatory to a global transformation

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