Griffith Hack Clean & Sustainable Technologies

Carbon Dioxide Capture & Storage (CCS) – How far away is it? by Griffith Hack
November 20, 2008, 2:36 pm
Filed under: Feature, News

Australia has two good reasons to perfect CCS – we supply about 1/3 of the world’s coal, and we produce most of our electricity by burning it. But how far is effective CCS from reality? The following article from ClimateChange Corp provides a succinct summary of the current Australian position.

Comments Off on Carbon Dioxide Capture & Storage (CCS) – How far away is it?

Griffith Hack client Solar Heat & Power by Griffith Hack
November 20, 2008, 10:59 am
Filed under: News

Griffith Hack client Solar Heat & Power has seen its revolutionary solar thermal technology deployed into its related company Ausra. Using technology that has it’s origins in Australia, Ausra has become the first of a new generation of solar thermal companies to open a full-sized electricity generation plant. More information can be found on the New York Times website regarding the solar plant.

Comments Off on Griffith Hack client Solar Heat & Power

Before saving the world, you need the right armour by Griffith Hack
November 20, 2008, 10:55 am
Filed under: Articles

Dr Justin Blows has written an article which discusses the opportunity that presents itself with the introduction of the Australian Government’s Carbon Pollution Reduction Scheme. The article is available online at the Australian Anthill magazine website.

Comments Off on Before saving the world, you need the right armour

International Energy Agency calls for low-carbon energy revolution by Justin Blows
November 17, 2008, 10:16 am
Filed under: News

The International Energy Agency (IEA) has released its World Energy Outlook (WEO) 2008.  This document emphasises the need for a global energy revolution by improving energy efficiency and increasing the deployment of low-carbon energy.  The IEA says that this revolution is urgently needed to ensure secure energy supplies and to curtail rising emissions of greenhouse gases.

Comments Off on International Energy Agency calls for low-carbon energy revolution

A changing climate by Justin Blows
November 14, 2008, 2:27 pm
Filed under: Articles

Justin Blows of Griffith Hack looks at the new environment in which patents and licences for technologies related to climate change must operate, and how to extract the best commercial outcomes

Patent World, 1 November 2008

A growing market for clean technology

The climate change debate has moved from “Did we cause it?” to “How do we fix it?” Governments are acting to create a dramatic shift in the technologies and behaviours that determine the carbon intensity of the world economy(1). In the US, both Republican and Democrat presidential nominees support an emissions trading scheme (ETS)(2). Australia(3,4), the European Union (EU) and New Zealand all have or will soon introduce an ETS.

The ETSs will in effect transfer money from polluting technologies to new and developing low emissions technologies, creating what venture capitalists are describing as possibly “the biggest economic opportunity of the 21st century”(5). Governments worldwide are also introducing policies such as mandatory efficiency standards, renewable energy targets, feed in tariffs, and public procurement of low carbon-emitting technologies.

Patent attorneys and aligned professionals must act now: new technology players are scrambling for patents. Others are seeking licence agreements so that their enterprise can operate freely in this new environment.

Rapidly maturing government policy is creating new emerging markets and new ways to exploit an invention. The patent landscape is changing quickly, which provides opportunities and dangers.

The impact of emissions trading schemes on patentees

Carbon credits freed up (or created) through the use of patented technology, for example, may be sold on ETS markets for profit. This is separate from profits generated by traditional forms of exploitation such as sale or use.

Typically, under an ETS, a country’s greenhouse gas emissions are capped by legislation. The government then issues pollution permits (one type of carbon credit), by way of auction, for example. Usually, each permit entitles its holder to emit one tonne of carbon dioxide gas (or equivalent). These permits are tradable on an open market that sets their price. Organisations that can reduce their greenhouse gas emissions by installing low emissions technology, for example, will be able to sell excess permits on the market for a profit. This creates a strong incentive to license or buy clean technology.

Polluters, on the other hand, will buy the permits from those that hold them (or from the government).

The net effect is the transfer of money from polluters to those who adopt or develop clean technologies, either directly or indirectly. Patentees of low emissions technologies will benefit greatly from an ETS.

Carbon offsets are another type of tradable carbon credit.

Offsets are generated by projects, sectors or countries that fall outside an ETS. An offset may be created by the sequestration of a greenhouse gas such as carbon dioxide by growing more trees, for example. Offsets allow their holder to emit gases equal to the amount of gas sequestered.

Alternatively, offsets can be created by replacing dirty with clean power generation. Emissions are reduced below a baseline of carbon dioxide emissions, for example by replacing a coal-fired power plant with a hydro electric power plant. Offsets are then issued with a value that is the difference between the baseline and the new emissions levels. Again, patentees will benefit because of increased incentives to license clean technology.

Changing Markets

Governments and other authorities have recognised that developing countries have inefficient and obsolete infrastructure and that they are growing into the biggest emitters of greenhouse gases. Carbon markets will be structured to especially reward those that introduce cleaner technology into these markets.(6) The operation of the carbon markets means that more value may be derived from a Brazilian patent than a European patent. International carbon trading allows, for example, a Brazilian electricity company to increase its profits by replacing a coal-fired power station with wind-powered generators and selling the carbon credits or offsets for additional profit.

Much of the €4.6 billion raised under the Clean Development Mechanism(7) (CDM), a carbon offsetting scheme under the United Nations Framework Convention on Climate Change (UNFCCC), is for green power projects in developing countries. The CDM allows projects in developing countries to earn Certified Emissions Reduction (CER) credits, each equivalent to one tonne of carbon dioxide. The CERs are traded in industrialised countries. There are substantial CDM projects in China, India, Brazil and the Republic of Korea(8). Some other countries hosting CDM projects are not members of the Patent Co-Operation Treaty (PCT), however, and so consideration of Paris Convention applications may be important.

Some view patents as a barrier to the transfer of clean technology from the developed to the developing world. Nicholas Stern, author of the Stern Review(9) is of the opinion that new technology should be made available to the developing world on a marginal cost basis, or for some reduced licence fee(10). Others, such as the World Intellectual Property Organisation (WIPO), believe strong patent protection will encourage clean technology transfer(11). At this stage, it does not appear that patents filed in developing countries will have the rug pulled out from under them, as previously experienced by the pharmaceuticals industry.

Climate change is increasingly affecting economies, and people are looking for technologies to help them adapt. For example, Australia’s agricultural output is now being significantly damaged(12). Patentees of technology that allow people to adapt to climate change will benefit.

Claiming Credits

Is it possible to draft a patent claim that encompasses a carbon credit and thus protects this new way of exploiting an invention? We have been discussing this and believe it is – in some circumstances – by using a business method claim. A carbon offset is perhaps more amenable to a patent claim than a pollution permit. This is because the creation of an offset is tightly bound to a physical effect or process, and thus less likely to be considered unpatentable subject matter.

The transfer of offsets such as CERs across national borders creates particular problems for those drafting claims.

An offset claimed in a patent filed in a developed nation requires a pure business method claim. This is because the technology is exploited in another jurisdiction.

Countries such as Australia and the US will, it is hoped, maintain a favourable treatment of pure business methods(13, 14). However, it is unlikely that a pure business method directed to a CER would be allowed in Europe.

Some patent offices and courts may view a claim directed to a carbon offset as nothing more than a scheme directed to the interpretation and application of a law, and therefore not patentable. This was the fate of an Australian patent application for a method of asset protection consisting of actions of financial and legal consequence(15). But this issue is by no means settled.

Offsets that do not cross borders may not have these problems. In this case, the use of the technology could be explicit in the claim, which may assist in overcoming patentability problems.

It may also be possible to protect the offsets generated by a particular technology through a licence agreement rather than through a patent. Patents, however, offer particular advantages, especially as they may offer protection against contributory infringers or joint tort feasors, which may be difficult to capture through a licence agreement.

Technologies that will flourish

Technologies that result in the reduction of energy demand, the promotion of green power generation and the sequestration of greenhouse gases, are all expected to flourish, as are technologies that enable people to adapt to climate change, such as drought-resistant crops. Abatement technologies – such as efficient lighting, heating, ventilation and air conditioning; energy efficient or alternative vehicles; and energy management – are widely regarded as the “low-hanging fruit”(16), that is, they can be economically used now.

Information and communication technologies (ICT) will enable other sectors to reduce their emissions, primarily through energy management. ICT could reduce global emissions by as much as 15 percent by 2020 – more than five times its own carbon emissions(17).

Clean coal technologies involving the capture and storage of carbon dioxide from coal fired power plants are also expected to be aggressively targeted. The vast bulk of new power stations built in the US, India and China over the next few decades will be coal fired. Pursuing clean coal technologies appears to have strong support from political leaders worldwide(18).

Where next?

Government policies that encourage the use, research and development of clean technologies are starting to bear fruit. This is resulting in a scramble for patents. The market for clean technology is expected to grow strongly in developing nations, this growth being largely stimulated by ETSs. Protecting carbon credits by explicit claims in relevant technology patent specifications should at least be considered.

1. Nicholas Stern, Key Elements of a Global Deal on Climate Change, May 2008,
2. AFP, McCain Bucks Bush on Climate Change, 25 June 2008.
4. Garnaut Climate Change Review, Draft report, July 2008,
5. Justin Mullins, The Six Trillion Dollar Men, New Scientist 31 May 2008, 34-38.
6. Stern, above.
9. Nicholas Stern, The Economics of Climate Change – The Stern Review, Cambridge Press 2007.
10. Nicholas Stern, Key Elements of a Global Deal on Climate Change, above, p35.
11. See, for example, WIPO Magazine, Climate Change – The Technology Challenge, Jan. 2008, and other articles in that issue.
12. Garnaut, above.
13. Justin Blows, Software and Business Method Patents in Australia, the US and Europe, Australian Internet Law Bulletin, (2007) IPLR 9(9), 114-117.
14. In Re Bilski and Warsaw, No. 2007-1130 (Fed. Cir.)
15. Grant v Commission of Patents [2006] FCAFC 12033-34.
16. McKinsey & Company, Reducing U.S. Greenhouse Gas Emissions: How Much At What Cost, December 2007
17. SMART 2020: Enabling the low carbon economy in the information age, A report by The Climate Group on behalf of the Global eSustainability Initiative (GeSI), June 2008,
18. Tony Blair, The Australian Climate Plans Must Involve All Countries, 30 June 2008.

Comments Off on A changing climate

Carbon Dioxide Capture & Storage (CCS) – How far away is it? by Griffith Hack
November 7, 2008, 3:35 pm
Filed under: Feature

Australia has two good reasons to perfect CCS – we supply about 1/3 of the world’s coal, and we produce most of our electricity by burning it. But how far is effective CCS from reality? The following article from ClimateChange Corp provides a succinct summary of the current Australian position.

Comments Off on Carbon Dioxide Capture & Storage (CCS) – How far away is it?

Monsanto buys Brazilian sugar cane assets for Biofuel production by Justin Blows
November 6, 2008, 3:16 pm
Filed under: News

Sugarcane is the major source of sugar around the world, planted on more than 50 million acres worldwide and is a major source of ethanol fuel.  Monsanto hopes to be able to improve sugar yields from newly acquired fields in Brazil using, amongst other things, biotechnology.

Comments Off on Monsanto buys Brazilian sugar cane assets for Biofuel production