4 mins | 1,061 words
by: Lei Liu
The UN climate change report published on August 9, 2021 issued grim warnings of the potentially catastrophic impacts of climate change, once again highlighting urgent need for innovative climate technologies to reduce carbon emissions across all sectors of the world economy. This is not news in Canada where the government has invested over $2.3 billion since 2017 to support the innovation, commercialization and adoption of climate technology.
More recently, the Canadian government launched the Innovative Asset Collective to assist small and medium climate technology enterprises with access to critical support to develop, protect, and leverage intellectual property (IP) for commercialization. Furthermore, measures put in place by the Canadian Intellectual Property Office (CIPO) and many other national IP offices to fast-track “green” patent applications reflect the increasing importance attributed to this sector of the economy.
With the investment and necessary IP strategies in place, the future of climate technology in Canada is looking bright. It is no surprise that Canada has moved from 7th spot in 2014 to 2nd spot in 2021 on the Global Cleantech Innovation Index.
Canadian IP funding and support for climate technology is paying off
Since at least 2009, Canada has ranked as a top ten country for patent filings related to climate change mitigation and adaptation technologies. Key findings in CIPO’s 2016 IP Canada Report show that Canadian innovators are active in virtually every area of climate change mitigation. CIPO’s report quantified Canada’s relative specialization in various climate change mitigation areas through a so-called “technological advantage index”, which identified carbon capture as a key area for Canadian innovation.
The Canadian government continues to power climate technology innovators. In 2017, the Government of Canada allocated $2.3 billion to help companies in the climate technology sector to scale-up. Since then, the Canadian government has continued to offer funding to the sector. Earlier this year, the Honourable François-Philippe Champagne, Minister of Innovation, Science, and Industry, announced an investment of $55.1 million in 20 transformative Canadian climate technology companies through Sustainable Development Technology Canada.
The Federal government has also offered strategic support to climate tech companies for IP through The Clean Growth Hub, established in 2018 as part of the initial $2.3 billion investment. The Hub is a free service which helps climate technology producers and adopters identify and access federal programs and services to advance climate technology projects. The Canadian government also maintains an active list of funding opportunities for climate technologies via the Hub’s website.
These investments are paying off with Canadian climate tech companies providing tangible results. One Canadian success story in the carbon capture space is CarbonCure which has commercialized a technology to introduce recycled carbon dioxide into fresh concrete, reducing the carbon footprint of the concrete industry. CarbonCure was recently announced as a winner of the $20 million NRG COSIA Carbon X-Prize.
To build on this the momentum in December 2020, the Canadian government also launched the Innovation Asset Collective (IAC). The IAC assists small and medium climate technology enterprise members in better leveraging their IP to scale up through education, advisory services, and access to licensing programs for IP. The IAC is in its early days, and its effectiveness at helping Canadian climate technology companies leverage IP for commercialization and growth will be interesting to follow.
Fast-tracking climate technology patents and protection in Canada and abroad
To foster investment and expedite commercialization of climate technologies, CIPO and other national IP offices have put measures in place to prioritize the prosecution of “green” patent applications. As a result, innovators may have options for fast-tracking their applications through to grant at little or no extra cost. These measures are proving to be very effective with fast-track examination outpacing ordinary examination by between 42% and 75% across participating IP offices.
Canada is widely considered to be a favourable jurisdiction for fast-tracking patent applications directed to environmentally friendly technologies, thanks to relatively liberal eligibility rules and minimal formal requirements. With respect to eligibility, Canada’s Patent Rules simply require that applicants submit a declaration stating that their application relates to a technology where “the commercialization of which would help to resolve or mitigate environmental impacts or conserve the natural environment and resources”. There is no fee for expediting examination in this manner, and there are no limits on the number or types of claims allowed.
Internationally, the national IP offices of many other jurisdictions have implemented comparable “green” patent fast-track programs. However, while the potential for expedited prosecution across multiple jurisdictions can provide considerable benefits for climate change mitigation technology-innovators, taking advantage of them is not always straightforward due to a lack of harmonization. Indeed, program eligibility rules vary considerably between offices, with little consensus as to what qualifies as a “green” technology.
At one end of the spectrum, the IP offices of Australia and the UK have relatively liberal eligibility requirements similar to those touched on above with respect to CIPO. On the other end of the spectrum is the Republic of Korea, which limits eligibility for their fast-track program to renewable energy technologies that are either government funded/accredited or that have received “green certification” under local environmental laws. Brazil, China, Japan and Israel fall somewhere in the middle in terms of the restrictions placed on the technology classes permitted. The US has not had a “green” patent fast-track in place since the end of its Green Technology Pilot Program in 2012. Instead, applicants can request accelerated examination as they would for patents not in the “green” space.
In addition to various eligibility rules, fast track-programs have various cost structures and formal requirements including limits on the number and type of claims permitted. The Japanese Patent Office is notable in this respect, as it charges fees on a per-claim basis and requires that applicants conduct prior art searches and submit comparisons between claimed inventions and the closest prior art. It is important to note that each fast-track program is unique often requires the preparation of jurisdiction-specific claim sets and remarks.
Work with IP advisor to access the right support and protection for your climate technology
Navigating the myriad options and programs for IP funding and the various eligibility rules and formal requirements of multiple fast-track programs for patent prosecution can be complex. An experienced IP advisor can help you develop a coherent IP strategy to suit the needs of your company’s commercialization and growth plan from the outset.
The content provided here is informational only and does not constitute legal or professional advice. To obtain such advice, consult with an IP lawyer, patent or trademark agent at Smart & Biggar LLP.
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About Smart & Biggar
Smart & Biggar helps the world’s leading tech companies protect and leverage their IP and advises them on how to use IP Strategy to secure growth around the world. Headquartered in Ottawa with a national presence, Smart & Biggar has a consistent track record and reputation as the leaders for IP and tech law in Canada.
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About the Author
Lei Liu is a patent agent and partner at Smart & Biggar. Lei works with companies of all sizes from local start-ups to multinational corporations and across all industries to develop strong patent portfolios that are aligned to their business objectives and guard against competitors.