The TRIPS Agreement Revisited ‒Time to Open-Up Climate Technologies for Least Developed Countries

Abstract

Because most climate technologies are patented in developed countries, intellectual property rights held over these technologies by rights holders in developed countries can impede the access of least developed countries (LDCs) to these technologies owing to difficulties such as high royalty fees, refusals to license and unnecessary conditions for transfers of technology. This paper argues that the principles and objectives of the TRIPS Agreement, as laid down in Articles 7 and 8, could be used for an interpretation fitting the need of the LDCs to access climate technologies and evaluates the potential to adopt a declaration on the TRIPS Agreement and climate change to guide the utilisation of TRIPS flexibilities. Among other things, these include using research exceptions, parallel imports, compulsory licences and competition law. This paper further evaluates potential options for utilising Articles 66.2 and 67 of the TRIPS Agreement and the potential to adopt a new agreement from a climate change standpoint to meet the urgent need of LDCs for access to and transfer of climate technologies.