Research On The Patent Licensing Of Clean Technology To Mitigate Climate Change

Faced with the global warming crisis,climate change has become a common topic of concern for all humanity.The United Nations Framework Convention on Climate Change has reached a consensus that the transfer of clean technologies is an important measure to mitigate climate change.Practice has shown that this requires an organic combination of legal,technological,economic and other means to jointly respond.However,there are obvious north-south differences in clean technology,and there are still many obstacles to the international transfer of clean technology from north to south,especially at the level of intellectual property system,with the impact of patent barriers for clean technology being particularly significant.Today,China needs to be based on the current status of international clean technology development and consider how to better utilize the intellectual property system to promote the effective transfer of advanced clean technologies from abroad,achieve the common goal of energy conservation and emission reduction,and maintain the global ecosystem.This paper starts with the concept of clean technology and the international transfer model,and deeply analyzes the impact of the relevant rules in the United Nations Framework Convention on Climate Change and the TRIPS Agreement on clean technology transfer,in order to clarify the particularity of the international transfer of clean technology.Developing countries and developed countries have very different motivations from the time of the conclusion of the UNFCCC.In order to resolve the differences between the two parties,international law on climate change puts forward the principles of "Common but Differentiated Responsibilities" and "Promoting Sustainable Development Worldwide,in particular for Developing States" to achieve global emission reduction targets.The patent system creates a mechanism to promote innovation through technology diffusion,and patent licensing can be used as an effective way to realize technology diffusion and transfer.The patent licensing is in the interests of both the licensor and the licensee.The licensor or the owner of the technology retains its ownership of the technology and allows the licensee(technology user)to use the technology on the basis of charging the license fee,while licensee obtains the desired technology on the basis of paying a certain consideration.However,the ideal demand for international transfer of clean technology cannot be achieved completely by voluntary patent licensing Therefore,in order to achieve the objectives of the Paris Agreement,compulsory patent licensing has become a hot topic discussed by countries at the Climate Conference,which reflects the urgent desire of developing countries,but also in order to promote public interest,balance the interests of all parties,and prevent patents abuse and achieve public policy objectives on public health.Patent open license is also a voluntary license in essence.The applicable principles of patent open license are freedom,openness,reliability and reasonable distribution of costs and benefits.In addition to meeting the general requirements of the license agreement,its elements also need to increase the authoritatity institutions or platforms to certificate or release open license statements,and also need to provide formal written legal documents to reduce potential disputes or unenforceability.The three licensing modes have their own advantages and disadvantages,and can achieve complementary advantages,division of labor and cooperation.And the rise of open innovation and open source software has led some organizations to begin to adopt broader opening intellectual property strategies.The paper is proposes to encourage the implementation and enforcement of the open licensing system of clean technology through private ordering(ordering refers to the act and process of establishing order).The code is the law and the network is the rule.Integrate offer and acceptance process,standardized terms such as price and non prosecution,and flexible selection terms such as grant back and reasonable use of patent opening license into the network,so as to establish a national level Internet platform for open licensing of clean technology patents and a shared database of licensing statements.Further more,to ensure the authority and smooth operation of the platform,It is also necessary to establish a patent selection mechanism and an patentee integrity mechanism for patent and patentee participating in the platform.After all,the private ordering is not omnipotent,which has its drawbacks.Therefore,it is also necessary to use the public ordering to create a green patent system.As for patent open licensing,it should emphasize the inclusiveness rather than exclusiveness of patents,that is,by limiting the exclusiveness of patents and encourage more patent licensing.It can also learn from the fair use system of copyright,and realize the fair use of clean technology patent by formulating a series of principles.The public ordering breaks through and improves the value theory of the patent system from an institutional perspective,in order to broaden the freedom and open space of private ordering,meaning that the inclusiveness and reasonable use of patent can make the application wider scope of patent open licensing.Finally,from the perspective of intellectual property policies,it is also necessary to promote the sharing of research and development in the field of clean technology,establish a network interactive platform for clean technology patent pledge,and implement real-time or regular monitoring and evaluation of international clean technology patents to promote the transfer of clean technology and green economic development.