US Industry pressure against any IPR concessions at Paris Climate Talks on green technology


December 7, 2015

The Honorable Michael Froman
Office of the United States Trade
600 17th Street, NW
Washington, DC 20508
Fax: (202) 395-4549

The Honorable Penny Pritzker
United States Department of Commerce
1401 Constitution Ave., NW
Washington, DC 20230
Fax: (202) 482-2741

The Honorable John Kerry
United States Department of State
2201 C Street, NW
Washington, DC 20520
Fax: (202) 647-2283

Re: U.S. IPR and the COP21 Climate Negotiation

Dear Secretary Kerry, Ambassador Froman, and Secretary Pritzker:

As the COP21 UNFCCC meeting in Paris progresses, we ask for your continued leadership in rejecting the ongoing demands of a small group of foreign governments and NGOs that UNFCCC member governments weaken the protection of climate change-related patents and other Intellectual Property Rights (IPR), or that they agree to measures or provisions that would otherwise undermine existing global IPR standards. Any such outcome would not only undermine previously agreed global IPR standards as reflected in the WTO Agreement on Trade- Related Intellectual Property Rights (TRIPS) in particular, but would be counterproductive from a perspective of addressing the effects and underlying causes of global climate change (for which innovation and continued dissemination and deployment of clean technologies is needed), and have serious negative consequences for U.S. industry, U.S. exports, and U.S. jobs. Over the years, several countries and NGOs have sought to insert references to IPR in UNFCCC decisions and other negotiating outcomes. This has ranged from overt schemes like compulsory licensing, veiled references to “flexibilities” and “balancing” IPRs, to proposals to create UN- or foreign government-led bodies to buy up and effectively redistribute American and other IPRs and their related technologies. We urge you to avoid all references to IPR, positive or negative, in the agreement or decision text. This is particularly critical with respect to references that relate to IPR and finance, which could be viewed as an institutional mechanism to engage in compulsory licensing.

There are several reasons why these and other IPR-related proposals are so harmful: First, U.S. firms are currently among the world’s leaders in the development and production of cleaner, more efficient technology, goods, and services. Enhancing this leadership position will help create and maintain high-paying jobs in America and sustain future U.S. economic growth, exports, and trade. Failing to do so means losing the battle for competitiveness and jobs to China, India, and other nations, all of whom are investing in these key growth markets and have aggressive industrial policies in place that are targeted at U.S. technology and U.S. innovation. Continued strong global IPR protection is key.

Second, failure to protect clean technology IPR would also undermine the very climate change action that the Administration (and the UNFCCC) is aiming to pursue. The evidence shows, for example, that strong IPR protection encourages private sector investment in new technologies and innovation, helps companies market and thus monetize their competitive technological edge, yet at the same time rewards the sharing of knowledge and inventions, rather than inhibiting or punishing it.1 A wide body of economic and policy literature also confirms that IPRs help facilitate both the development of new clean technology solutions, and their adoption and deployment on the ground.2 As such, patents and other forms of IPR protection are a tried-and-tested tool to achieve global climate change-related objectives, as well as sustainable development and investment in some of the world’s poorest and most vulnerable nations. Indeed, in most developing countries it is not the existence of IPR protection that is the problem, but rather its absence.

Finally, no matter how carefully crafted, failure to keep IPR issues out of a UNFCCC or other UN climate change or sustainable development agreement or decision will result in significant legal, institutional and practical confusion precisely because such IPR issues are already well-regulated at the WTO and elsewhere. Even worse, any kind of compromise language on or references to IPR in a climate change or other UN agreement or decision, risks undermining this Administration’s own recent negotiating efforts in the Transpacific Trade Partnership (TPP) Agreement and elsewhere, and would send mixed signals to our negotiating partners around the world. It would send a confusing signal and be harmful not just for the U.S. economy, innovation, exports, and jobs, but for the very climate changerelated objectives that the UNFCCC COP21 negotiation is purporting to pursue.

As the COP21 enters its final stages, we urge you to continue standing up for American jobs, American exports, and American innovative businesses and entrepreneurs and to continue rejecting any and all references to IPR in a COP21 agreement or decision, including more indirect references or openings for future discussions about IPR, such as those mentioned above and previously discussed with your teams.

We recognize the evolving nature of these negotiations and urge you continue to support an environment where IP rights facilitate technology development and dissemination. We will continue to communicate with your representatives on the ground in Paris from State, USTR, and Commerce as a follow up to this letter.

1 See, e.g., PriceWaterhouseCoopers, Innovation: Government’s Many Roles in Fostering Innovation (2010).

2 See, e.g., Kristina M. Lybecker and Sebastian Lohse, WIPO Global Challenges Report, Innovation and Diffusion of Green Technologies: The Role of Intellectual Property and Other Enabling Factors, WIPO: Geneva (2015); U.N. Conference on Trade and Development, Foreign direct investment, the transfer and diffusion of technology, and sustainable development (2011), available at

Yours sincerely,

Alliance for Clean Technology Innovation
Biotechnology Industry Association
Business Council for Sustainable Energy
Corn Refiners Association
Information Technology Industry Council
National Association of Manufacturers
National Foreign Trade Council
Northeast Clean Energy Council
U.S. Chamber of Commerce
United States Council for International Business

CC: The Honorable Michelle Lee
United States Patent and Trademark Office
USPTO Madison Building
600 Dulany Street
Alexandria, VA 22314
Fax: (571) 273-8300

CC: Ms. Caroline Atkinson
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20006
Fax: (202) 456-2461

CC: The Honorable Stefan Selig
United States Department of Commerce
1401 Constitution Ave., NW
Washington, DC 20230
Fax: (202) 482-2741