I approach this topic with some trepidation as I am neither an expert in environmental matters nor government procurement rules. That said, Charlie had an interesting post today at CEL regarding the ongoing bilateral talks in D.C.

There has been some speculation as to the meaning of some of Obama’s comments to the delegation, including this one:

And the best way to foster the innovation that can increase our security and prosperity is to keep our markets open to new ideas, new exchanges, and new sources of energy.

What’s he talking about? Carbon tariffs, Chinese protectionism, tech transfer, ???

Technology transfer is certainly an important issue, but while in a very broad sense “weakening intellectual-property protections” in the context of such transfers could be seen as a failure “to keep our markets open,” the President’s words don’t admit to this reading easily.  It would have been much clearer to say “and the best way to foster innovation is to protect the legal frameworks which have proven to be the most effective drivers of new solutions”, etc.

I agree. Many other ways to talk about IP protection. Sure, “new exchanges” could include tech transfer, but this is a blanket statement, not a specific pronouncement about problems encountered by IP owners.

Here’s my take.  Remember that Secretaries Chu and Locke were just in China.  Secretary Locke in particular got an earful about Chinese “green” protectionism, and he expressed these concerns to his Chinese hosts:

Chu and Commerce Secretary Gary Locke were in Beijing to lobby China to promote private-sector development of solar, wind, biofuels and other clean energy.

Locke appealed to China to avoid trade barriers to clean technology. Some companies say Beijing is trying to build up its industry by shielding companies from competition, shutting foreign competitors out of wind power and other projects.

I cut off the end of the post (you should read the whole thing), but I think the gist was that Charlie thinks Obama was talking about trade barriers. Fair enough.

I bring this up because although I understand why IP as a topic commonly finds its way into discussions of greentech, I often find the comments one-sided and confusing.

How will China’s greentech policies negatively effect IP protection? There are several possibilities, including poor enforcement of existing laws as a policy, use of current legal mechanisms to dilute or eradicate IPRs (e.g. compulsory licensing under the Patent Law or Anti-monopoly Law), or actual changing of IP laws to make greentech a special case.

To be sure, China has made a lot of noise at the international level regarding compulsory licensing in the environmental area, scaring the bejesus out of US IP owners. The question is would they ever really excercise this ability, and if they did, is that a bad thing?

The international IP community has made compulsory licensing into such a boogeyman over the years that it has hindered the efforts of poor countries to obtain much needed pharmaceuticals. Are we headed down the same road for greentech?

China, as well as other nations, has a legal regime that allows for compulsory licensing in certain cases. The WTO has recognized a country’s ability to do so if specific conditions are met.

The real question is whether there is a lot of really great greentech sitting in the U.S. that is not being licensed to China. If so, why? Unreasonable pricing issues, worries about IP protection? No one seems to discuss what is actually happening in the market at the moment.

The knee-jerk reaction is that the Chinese government wishes to engage in, as one American phrased it, “outright theft” of IP. Well, I think it’s a bit early to be saying that, don’t you? Compulsory licensing and IP infringement are not comparable, and the two terms should not be used interchangeably by the IP community. It’s dishonest and calls into question the entire legitimacy of Chinese law. Not really such a wise thing to say.

Lots of folks must have more knowledge on this subject than I do. Feel free to set me straight on this.