The importance of IP in the energy transition

1. Clean energy transition to innovation

   Patent data can provide a useful tool for business decisions-makers as it demonstrates where companies are directing their R&D spending.  Data from the European Patent Office (‘EPO’) clearly shows fossil fuel patents declining and growth in low-carbon energy patenting with the new drivers being in enabling technologies such as batteries and hydrogen and in end-use sectors, the fast developing being electric vehicles.  The most recent report on hydrogen patents (here) shows innovation shifting towards low-emission solutions with Europe and Japan in the lead and the US losing ground.  The new hydrogen patenting heavyweights are companies from the automotive and chemicals sectors focusing on electrolysis and fuel cell technologies.

2. The seismic change to the European patent system

   From 1 June 2023, it will be possible to apply for a European patent with unitary effect, so-called because one application in the EPO will lead, on grant, to a patent which covers 17 EU Member State (and, in the future, that number will grow as more States join the system).  This Unitary patent can be enforced across all 17 countries in a single infringement action brought before a newly created court called the Unified Patent Court (‘UPC’).  The UPC also has jurisdiction over granted European patents in these 17 countries provided they have not been opted out of the system. 

   For innovators and implementers alike, it is crucial to understand the impact, risks and opportunities of this new system.  Few national courts in Europe currently grant cross-border injunctions, the notable exception being the Dutch court which, last year, granted Hanwha a cross-border preliminary injunction against LONGi covering 8 EU Member States, Switzerland and the United Kingdom in relation to solar panel technology.  Now, the UPC will have the jurisdiction to grant permanent injunctions in actions which are promised to take a year from launch to trial.

   For more information see here.

3. The rise and rise in green trade mark filings

   Brands (or, in their legal terminology, trade marks) are by their very nature badges of origin, enabling companies and consumers to distinguish one enterprise from another.  Increasingly, brands that demonstrate they are tackling climate change are being chosen over their competitors, leading to a steep rise in applications to register ‘green’ trade marks (these are marks that have one term in their specification which can be said to relate to the protection of the environment and sustainability e.g. solar heating, wind energy, electric cars, electric bikes, energy conservation, reuse and recycling).  The data from the EU Intellectual Property Office (‘EUIPO’) demonstrates this trend with 2021 seeing an all-time high for green trade mark applications (see the updated report here).

4. Trade marks and the dangers of ‘greenwashing’

Care must be taken when using green trade marks.  Marks with a prefix such as ‘enviro’ or ‘eco’ or marks comprising symbols or logos indicating a link to the environment or use of the colour green in a brand are coming under the scrutiny of regulators around the world who are concerned to tackle ‘greenwashing’ i.e. the practice of giving a false impression of environment impact or benefits (see Bird & Bird’s Green Claims Tracker here).  Green trade marks, must not be used in a vague or misleading manner – not only will it damage the brand, possibly irreparably, it could lead to prosecution and a fine.