Climate change adaptation and mitigation and the patent paradigm within African intellectual property organisation sub-region: a legal appraisal

Abstract

This study looks at Climate change adaptation and mitigation and the patent paradigm within African intellectual property organisation sub-region: a legal appraisal

Climate change is the world’s most dreaded phenomenon right now because its effects know no bounds.

The consequences of climate change run across international, regional and national boundaries.

For some decades now, measures have been taken by governments of states to tackle the sources and effects of climate change, yet, mankind keeps observing is due to the development in polluting technology inter alia.

Policies have been put in place for the adaptation and mitigation of climate change. One of such policies has come from Intellectual Property under the Patent regime which could serve as a tool for the development of clean technologies that are environmentally friendly.

This work examines the phenomenon of climate change and the patent paradigm within the African Intellectual Property Organizations-region and realizes that much is still required under the African Intellectual Property Organization for climate change adaptation and mitigation.

To properly carry out this research, we had the main question:

To what extent does the Patent paradigm within the African Intellectual Property Organization contributes to Climate Change Adaptation and Mitigation? The main objective we seek to attain is:

To investigate whether the Patent paradigm within the African Intellectual Property Organization recognizes or encourages environmentally sound technologies for a green environment.

This could not go without a methodology that involved data collection and data analysis methods. In collecting data, we conducted interviews with personnel working in the area of patent and also the environment as well as gathered legal instruments and court cases.

In the analysis of the above data, we utilized the content and institutional analysis approaches.

The conclusion we arrived at is that in the grant of patents within the African Intellectual Property Organisation, the legislation does not discriminate between inventions that could be more harmful to the environment especially the climate-change saga.

We, therefore, recommend that the legal framework within the African Intellectual Property Organisation be reviewed in order to encourage the so-called “green patents”.

CHAPTER ONE

GENERAL INTRODUCTION

0.2 STATEMENT OF THE RESEARCH PROBLEM

Next to nuclear annihilation, climate change poses the greatest threat to the life’s of inter and intra generation, as well as the ecosystem and biodiversity hotspots are in jeopardy. Climate change refugees are becoming a reality and it is expected that by 2050 most of the pacific will be underwater.

Climate change is a reality and scientist have proven that anthropogenic activities are the main drivers influencing climate change especially the burning of fossil fuel during which a great number of carbon dioxide is emitted into the atmosphere. 

These activities affect the environment negatively such as changes in rainfall patterns, changes in the frequency of extreme weather events and an increase in the global surface temperature (global warming).

Global warming poses a risk to some human and natural systems like; coral reef, melting of mountain glaciers and polar ice, increase in sea levels, changing weather, more intense and longer droughts, intense storms, and frequent heatwaves.

Global climate change holds the potential of inflicting severe damage on the ecosystem that supports all life from hazards, and a higher magnitude of global warming will generally increase the risk of negative impacts.

It is under this canopy that the UNFCCC was adopted in 1992 with its enabling instruments which are; Kyoto protocol, REDD+ and GEF, all these to see that the objectives of the convention are attained.

Forward-thinking nations have made it their agenda to adapt and mitigate the effects of climate change and ensure the reduction of GHGs; hold the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change. Yet climate change keeps posing a threat to the present and future generation. 

To effectively adapt and mitigate to climate change, the deployment of clean energy technologies to curb the effects of carbon emissions from fossil fuels has been the tool of choice. Parties to the UNFCCC are required to take upon themselves their specific national and regional priorities, the responsibility to promote and corporate in scientific, technological and other research.

Addressing the threats posed by climate change requires a portfolio of processes such as the extensive introduction of new technologies and the modification of existing technologies. There is a need for public and private entities to engage in the invention of technologies that will favour a green environment.

In line with the commitments of parties to the UNFCCC to promote climate change technologies, research on, and promotion, development and increased use of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies.

The role of Intellectual Property pertaining to clean environmental technologies becomes of utmost importance under the patent protection regime. We can definitely rely on Patent in the protection and encouragement of inventions that might aid in adaptation and mitigation to Climate Change.

With this in mind and coupled with the fact that, AIPO has a mission to participate in the technological development of member states, looking at the importance of the climate and environment as a whole to human existence, one is tempted to ask the question; does Patent under AIPO give priority to inventions that seek to curb climate change in particular and environmentally sound technologies in general?

0.3 RESEARCH QUESTIONS

This work has a set of research questions. On the one hand, the main research question and on the other hand, specific research questions.

0.3.1 Main Research Question is:

• To what extent does the patent paradigm within African Intellectual Property Organization contributes to Climate Change Adaptation and Mitigation?

0.3.2 Specific Research Questions are:

• What are the causes and impacts of climate change on the environment?
• What is the existing patent protection regime in relation to climate change adaptation and mitigation within the African Intellectual Property Organisation?
• What is the nexus between climate change adaptation and mitigation and patent protection?
• What are the challenges facing the African Intellectual Property Organisation patent administrator in relation to climate change adaptation and mitigation?

0.4 OBJECTIVES OF THE STUDY

We have two sets of objectives designed for this work: the main objective on the one hand and the specific objectives on the other.

0.4.1 Main Objective:

• The principal objective is to investigate whether the patent paradigm within the African Intellectual Property Organization recognizes or encourages environmentally sound technologies for a green environment.

0.4.2 Specific Objectives:

• To examine the causes, negative effects of climate change on the environment and its regulatory framework.
• To investigate whether a patent under African Intellectual Property Organization stipulates provisions for climate-related technologies and look at some regulatory framework for a patent.
• To analyze the relationship between climate change adaptation and mitigation, and patent protection.
• In order to find out the challenges faced by the African Intellectual Property OrganizationPatent administrator for climate change adaptation and mitigation.

0.5 HYPOTHESES

• Human activities are not the main causes of climate change, its effects are limited and there is an arsenal of legal and institutional frameworks for its regulation.
• The patent paradigm within African Intellectual Property Organization recognizes, encourages green environmental technologies and there are some regulatory frameworks for Patent.
• There is a nexus between climate change adaptation and mitigation technologies and Patent Protection.
• There are no challenges faced by the African Intellectual Property Organization Patentadministrator in adapting and mitigating climate change.

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