IP/C/W/585  
 
27 February 2013  
(13-1038)  Page: 1/6  
Council for Trade-Related Aspects 
of Intellectual Property Rights  Original: Spanish  
 
 CONTRIBUTION OF INTELLECTUAL PR OPERTY TO FACILITATING THE 
TRANSFER OF ENVIRONMENTALLY  RATIONAL TECHNOLOGY 
COMMUNICATION FROM ECUADOR 
1  BACKGROUND 
1.  The opening paragraph of the preamble to Marrakesh Agreement Establishing the World Trade 
Organization (WTO) lists among the guiding principl es and objectives of the world trading system 
the objective of sustainable development together  with the protection and preservation of the 
environment. It also recognizes that the multilateral trading system should take into account the 
Members' asymmetries and different levels of development. Members reiterated their commitment 
to these principles at the WTO's Fourth Ministerial Conference, in paragraph 6 of the Doha Ministerial Declaration. Hence the Doha mandates also stress the importance of 
appropriate coordination between the WTO Ag reements and the multilateral environmental 
agreements (MEAs), as well as the Members' right to promote and protect the environment. The Doha Declaration provides, in paragraph 31(i), for the opening of negotiations on the 
relationship between existing WTO rules and specific trade obligations set out in multilateral 
environmental agreements, while in paragraph 33 it recognizes the importance of technical assistance and capacity building in the field of  trade and environment to developing countries. 
2.  Likewise, in the preamble to the Agreement on Trade-Related Aspects of Intellectual Property 
Rights, Members refer twice to the promotion of technology transfer to developing countries. 
Furthermore, the provisions on the basic objectives
1 and principles2 of the TRIPS Agreement 
recognize the need for the development and transfer  of technology in order to create sound and 
viable technological foundations for protecting public health and nutrition and to promote the 
public interest in sectors of vital importance to their socio-economic and technological development. In addition, in both letter and spirit these provisions seek to preserve a balance of 
rights and obligations between intellectual prop erty producers and consumers, and recognize the 
Members' right to adopt multilateral joint measures and mechanisms in order to "prevent the abuse of intellectual property rights by right ho lders or the resort to practices which unreasonably 
restrain trade or adversely affect the international transfer of technology".
3 
2  JUSTIFICATION 
3.  The issue of technology and its transfer is a fundamental aspect of the fight against climate 
change and adaptation to and mitigation of its harmful effects. Hence the timely dissemination and 
transfer of technology are essential for achievin g that objective, and consequently one of the 
major challenges facing the international community in its response to this problem.4 
4.  The issue of intellectual property rights and the debate over technological cooperation is 
becoming a fundamental aspect of how best to ad apt to and combat the harmful effects of climate 
change, particularly for developing countries. Discussions in forums concerned with environmental protection and preservation highlight the fact th at lack of information and excessive protection, 
inappropriate enforcement and abuse of intellectual property rights, and particularly patents, 
                                               
1 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Art.7. 
2 Ibid., Art. 8. 
3 Ibid., Art. 8. 
4 Carlos M. Correa, “Mechanisms fo r International Cooperation in Research and Development in the Area 
of Climate Change”, Technical Cooperation and Clim ate Change: Issues and Perspectives, UNDP, p. 39. IP/C/W/585 
 
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  without any consideration for effectively fostering "… social and economic welfare and … a balance 
of rights and obligations" between producers and users,5 can constitute a kind of barrier to access 
to this kind of technology, particularly for developing countries.6 
5.  This is because they create an exclusive ex ploitation right for the holder of the invention 
(product or process) within a specified territory and for a specific period of time, which occasionally 
creates a monopolistic situation characterised by high prices and a restriction of the dissemination of knowledge for adaptation and use of enviro nmentally-sound technology (EST). There are 
therefore grounds for arguing that the question of  intellectual property rights should also be 
included in the discussions on mechanisms for the transfer of ESTs.
7 
6.  We believe that this is a valid argument, and therefore share some ideas on the options that 
could be considered with regard to intellectual property rights and climate change in the context of 
the international trading system, such as: automatic granting of rights through voluntary licensing, 
use of the TRIPS flexibilities, and regulating licensing costs, inter alia . It is unfortunately the case 
that the increased difficulties of access to renewa ble energy technologies, i.e. ESTs, are reflected 
in the restrictive conditions and limitations imposed on acquiring and implementing them, as seen 
in the imposition of linked clauses, retrocession provisions, export prohibitions and so forth.8 
7.  When considering the principle of common but differentiated responsibilities, development 
priorities, objectives and circumstances, the countries parties to the United Nations Framework 
Convention on Climate Change (UNFCCC), mo st of whom are WTO Members, undertook, 
in Article 4.1 of the Convention, to promote an d cooperate in the development, application and 
diffusion, including transfer, of technologies, practices and processes that control, reduce or 
prevent emissions of greenhouse gases. It should be emphasized in this connection that despite 
this affirmation and the recognition in this co ntext of the importance of promoting transfer 
of ESTs, in the preparatory work for the Cancún Conference and the negotiations during the 
Conference on Climate Change on 29 November  2010 participants were unable to agree on a 
proposal submitted by a number of developing co untries, including Ecuador for the inclusion of 
intellectual property provisions in the document. The thrust of the proposal was basically that the 
countries parties to the Convention should agre e on action to exclude ESTs from intellectual 
property rights protection and fully facilitate the implementation of the "flexibilities" in the 
TRIPS Agreement, particularly in the case of the more vulnerable developing countries. This failure was in particular the result of strong opposition from the developed countries, led by the 
United States. 
8.  Furthermore, in this context the United Nations General Assembly has adopted several 
resolutions on "Protection of Global Climate for Present and Future Generations of Mankind"
9 and 
"Promotion of New and Renewable Sources of Energy"10 in which it both reaffirms the international 
community's commitment to the UNFCCC objective of  stabilising greenhouse gas concentrations in 
the atmosphere at a level that would prevent dangerous anthropogenic interference in the 
ecosystem, and also recognizes the fundamental role played by innovative renewable energy 
technologies in combating and alleviating climate change and its harmful effects. It therefore calls on the international community and the United Nati ons system to raise awareness with regard to 
greater support for such technologies, and highlights the importance of continuing the 
consideration of this major issue and the need to create at all levels the conditions for their 
promotion and use, including measures to improve access to them. 
                                               
5 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Art.7, "Objectives". 
6 Soni Preet, Technology Cooperation for Addres sing Climate Change, TECHNOLOGICAL COOPERATION 
AND CLIMATE CHANGE: Issues and Perspectives, UNDP, p. 21. According to Soni, examples would be the 
patent system, level of competition, selling prices and reasonableness of licensing terms. 
7 Soni Preet points out that, since climate change is a universal problem, it would be ideal to exclude 
priority technologies relating to cl imate change from the right to be pate nted, while establishing institutional 
mechanisms for information exchange concerning them. Ibid.,p.24. 
8 Idem 4, p. 43. 
9 Resolutions 43/53 of 6 December 1998, 54/222 of 22 December 1999, 62/886 of 10 December 2007, 
63/32 of 26 November 2008, 64/73 of 7 December 2009 and 65/159 of 21 December 2010. 
10 Resolutions 53/7 of 16 October 1998, 54/215 of 22 December 1999, 55/205 of 20 December 2000, 
56/200 of 21 December 2001, 58/210 of 23 December 2003, 60/199 of 22 December 2005, 62/197 of 19 December 2007, 64/206 of 21 December 2009 and 65/151 of 20 December 2010. IP/C/W/585 
 
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  9.  During the United Nations Conference on Sustainable Development in June 2012, the 
international community evaluated the progress made in development and use of new and renewable sources of energy and related technolo gies. The Conference addressed two fundamental 
issues that have a bearing on the subject of this Communication: (a) the green economy in the 
context of sustainable development and poverty eradication, and (b) the institutional framework 
for sustainable development. Thus, Member States affirmed that green economy policies should reduce the technological dependence of developing countries and contribute to closing the current 
technological gap between developed and developing countries;
11 and recognized the fundamental 
role played by the transfer of renewable energy technologies for sustainable development, poverty 
eradication, as well as the major challenges and obstacles facing developing countries in accessing, adopting and using such technologies, particularly in combating, adapting to and 
mitigating the harmful effects of climate change.
12 
10.  Accordingly, Ecuador submits this Communication as a contribution by the multilateral trading 
system to global strategies to enhance access to clean energy, increase energy efficiency and 
accelerate worldwide implementation of renewabl e energy technologies from the standpoint of 
intellectual property. It puts forward considerations for Members to assess the benefits of eliminating or reducing the existing restrictions or barriers and facilitating access to and use 
of ESTs in the WTO, and specifically in the Council for Trade-Related Intellectual Property Rights. 
11.  By way of example, according to World Bank da ta the cost of royalties and licences for the use 
of intellectual property rights is increasing rapi dly: world flows rose from US$135 billion in 2005 to 
reach US$245 billion in 2010. The bulk of these royalties went to the United States (42%), the 
European Union (36%), Japan (10%) and Switzerland (7%), while most developing countries are 
net importers, that is to say payers, of royalties and licences.
13 
12.  Thus, if the OECD countries represent 78% of total research and development spending while 
Asia (excluding Japan) accounts for 19%, Latin America 2.4%, the Near and Middle East 1.2%, 
and Africa 0.7%, then, as Correa puts it,14 "the world distribution of research and development 
budgets is indicative of one of the most dram atic asymmetries" existing between developed 
countries and developing countries in the sphere of technological development in general and ESTs 
in particular. Moreover, specifically with regard to ESTs, the available information indicates that most patents granted for such technologies belong to firms based in North America, Western Europe and Japan.
15 All in all, OECD data indicates that in 2005 the European Union 
accounted for 36.7% of renewable energy patents, the United States 20.2% and Japan 19.8%, 
compared with 2.9% for China and 2.3% for Korea.16 
13.  As a Communication from China and India17 to the WTO Committee on Trade and 
Environment (CTE) has already highlighted, intellectual property rights must not become a barrier 
for transfer of technology to developing coun tries. There must also be coordination and 
cooperation between developed countries and the private sector linked with the creation and 
diffusion of ESTs to facilitate and assist in combating climate change and adaptation and/or 
mitigation of its harmful effects, particularly as regards technologies designed to reduce and/or eliminate the harmful accumulation of CO2. 
14.  To this end, there must be genuine, real international cooperation that takes the form of fair 
and balanced trade between countries leading to th e creation of fair and reasonable patterns of 
use and trade of new technologies in the contex t of a successful green-economy revolution to 
which we aspire.
18 It is therefore essential to reorient the world intellectual property regime in the 
context of adaptation and/or mitigation of the harmful effects of climate change, assuming that 
there is a real intention to support the efforts of the most vulnerable developing countries to adapt 
                                               
11 Document A/CONF.216/L.1 of 19 June 2012, paragraph 58 (i), page 11 . 
12 Ibid.,  paragraph 269 et seq. , pages 56-57. 
13 World Bank, World Bank Developm ent Indicators, royalty and license fees, payments” and “royalty 
and license fees, receipts”, http://data.worldbank.org/indicator . 
14 Idem 4, p.45. 
15 Martin Khor, “Climate Change, Technology and IPR” Technical Cooperat ion and Climate Change: 
Issues and Perspectives, UNDP, p.80. 
16 Idem 13, p. 80. 
17 TN/TE/W/79 of 15 April 2011. 
18 Idem 4, p.51. IP/C/W/585 
 
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  and to mitigate those effects.19 The WTO Agreement on Trade-Related Aspects of Intellectual 
Property Rights is the cornerstone of multilateral  intellectual property standards and therefore the 
most important of the international instruments in this field. 
15.  Finally, in the case of environmentally so und technologies linked to adaptation and/or 
mitigation of climate change caused by CO2, we consider that these must be considered a "public 
good"20 since by their nature and purpose they seek  to promote global social welfare through 
adaptation and/or mitigation of the effects of climate change. This welfare is reflected in the 
adoption of government "public policies" designed to establish remedies and solutions for reducing 
and/or eliminating the causes of climate change in the context of promoting public and environmental health.
21 Such public policy elements were endorsed in the Doha Declaration on 
the TRIPS Agreement and Public Health, which stat es that the TRIPS Agreement "… does not and 
should not prevent Members from taking measures to protect public health".22 
3  SCOPE OF THE PROPOSAL TO EVAL UATE THE TRIPS AGREEMENT FROM THE 
STANDPOINT OF MITIGATION OF ENVIRONMENTAL PROBLEMS 
16.  The evaluation and possible revision of th e framework for the protection of intellectual 
property rights for technological applications would be one of the most important options for developing countries with regard to climate change. The aim is, firstly, to reaffirm the existing 
flexibilities in the TRIPS Agreement in connection with ESTs, and secondly, to initiate a process of 
evaluation to enhance the flexibility of disciplines on patentability of ESTs, whose use could produce considerable environmental benefits, t hus constituting effici ent tools for effective 
adaptation and/or mitigation as part of developing countries' climate change strategies. 
17.  As mentioned above, the objectives of this Communication are: 
a. reaffirmation of the existing flexibilities in the TRIPS Agreement so that Members use 
them in connection with ESTs, for example th rough a declaration addressing flexibilities 
in the TRIPS Agreement, climate change and access to ESTs; 
b. initiation of a review of Article 31 of th e TRIPS Agreement to determine which of its 
provisions may excessively restrict access to and dissemination of ESTs, and particularly 
its paragraph (f) and the need to include prov isions on, as the case may be, the transfer 
of expertise or know-how to implement compulsory licences; 
c. evaluation of the regulation of voluntary licensing and the conditions thereof from the 
standpoint of the most pressing needs of the most vulnerable developing countries in 
relation to adaptation to and mitigation of climate change; 
d. recognition that adaptation to and/or mitigation of the harmful effects of climate change 
should be assimilated to the concept of "public  interest", with the adoption of a provision 
authorizing exemption from patentability, on a case-by-case basis, for inventions whose 
exploitation is vital for the diffusion of ESTs needed for adaptation and/or mitigation of climate change; 
e. evaluation of Article 33 of the TRIPS Agreem ent to establish a special reduction in the 
term of protection for a patent of [X] years in order to facilitate free access to specific patented ESTs for adaptation and/or mitigation of the effects of climate change because of urgent need in the public interest; and 
                                               
19 Littleton Matthew, “The TRIPS Agreement and Transf er of Climate-Change-Rel ated Technologies to 
Developing Countries, p. 1. 
20 Over 100 non-governmental organizations and ac ademics from developed and developing countries 
back the need for access to environm entally-sound technologies as « public goods », as stated in their open 
letter on flexibilities for the least-developed countrie s under Article 66.1 of the TRIPS Agreement entitled : 
"NGO LETTER TO WTO MEMBERS CONCERNING A FURTHER EXTENSION OF THE LCD TRANSITION PERIOD UNDER ARTICLE 66.1 OF THE TRIPS AGREEMENT". 
21 Idem 4, p. 57. 
22 Ministerial Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 at 
the Fourth WTO Ministerial Conference in Doha, Qatar, document WT/MIN/(01)DEC/2. IP/C/W/585 
 
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  f. inclusion of a mechanism in the TRIPS Agreement to promote open and adaptable 
technology licensing for results obtained from research into climate change and ESTs financed through public funds. 
In the light of the above points, the application of  new flexibilities included in the TRIPS Agreement 
would be understood to be only in favour of the vulnerable developing countries and least 
developed countries.  
18.  It is thus now a question of the WTO, through the TRIPS Council, considering and discussing 
the concepts outlined above in order to identify  the most appropriate mechanisms for effectively 
promoting and facilitating access by developing coun tries to technologies applicable for combating 
climate change and environmental harm. These flex ibility criteria are directly related to the 
protection of human, animal or plant life,
23 owing to the developing and least developed countries' 
vulnerability to the adverse effects of climate change. 
19.  For the assertion that "intellectual property rights" guarantee the promotion of innovation and 
promote the timely and widespread dissemination of the industrial applications of such innovations 
is questionable.24 W h a t  i s  c l e a r ,  h o w e v e r ,  i s  t h a t  f o r  m a n y  c o u n t r i e s ,  e s p e c i a l l y  t h e  m o s t  
vulnerable countries in which ESTs are most need ed for adaptation and/or mitigation of climate 
change, it may plausibly be asserted that the patent system as currently designed can restrict the 
dissemination of such technologies through monopolization or abuse of exploitation rights by right holders or excessive additional costs resulting from payment of royalties for voluntary licensing of ESTs. 
4  FUTURE STEPS AND ACTIONS BY ME MBERS IN RELATION TO INTELLECTUAL 
PROPERTY AND CLIMATE CHANGE 
20.  To summarize, the foregoing considerations establish a reference framework for launching a 
discussion and provide the opportunity for defining this issue in relation to the existing "serious 
environmental harm"
25 that the world ecosystem is currently suffering, in the light of scientific 
findings on the planet's capacity to effectively reverse the effects which the accumulation of CO2 
could have on the atmosphere, through the use of ecologically rational technologies by developing 
countries. While there is now some degree of inte rnational regulation of global environmental 
damage, as regards climate change, we do not yet have a binding and enforceable normative reference framework to identify unauthorized atmospheric emissions as environmental harm and 
sanction them accordingly. 
21.  It is important to recognize that although the question of climate change falls within the 
purview of the United Nations Framework Convention  on Climate Change, it is closely linked with 
the WTO through the trade-related effects of response  measures. Hence, it should be stressed that 
the crosscutting between technology transfer and intellectual property rights falls under 
the TRIPS Agreement, highlighting the need for co operation and consistency in the actions of both 
international forums. We should therefore consider  the elements outlined above with a view to 
eliminating or reducing restrictions or barriers to access to ESTs, and consequently facilitating their use by the vulnerable developing countries and least developed countries. 
22.  For this purpose the TRIPS Council could base its work on past experience that made it 
possible to achieve a broad consensus on issues of common interest going beyond purely 
economic considerations and focusing on world "public goods" based on the needs of "public interest" and the policy spaces for tackling situations of force majeure , as is the case of action to 
adapt to and/or mitigate the effects of climate change. 
23.  Finally, in emulating these positive practices we  could consider adopting at the Bali Ministerial 
Conference a declaration in which Members woul d enshrine the principle that "nothing in 
the TRIPS Agreement can minimize or impair the flexibilities provided for in that Agreement, nor 
                                               
23 Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 27.2. 
24 Bernice Lee, Ilian Iliev and Felix Preston (2009) , Who Owns Our Low Carbon Future? Intellectual 
Property and Energy Te chnologies, Chatham House Report, available at 
http://www.chathamhouse.org.uk/publications/papers/view/-/id/775/ (accessed March 2, 2011). 
25 Idem. IP/C/W/585 
 
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  prevent or limit Members taking measures they consider necessary to protect their population 
from the effects of climate change and to make  use of "environmentally sound technologies". 
__________