Patent systems have been shown to drive innovation across industries because the protections they entail encourage invention which might not otherwise take place.
But the time it takes to obtain a patent has become longer - it might be five years or more until it has been examined and granted by the patent office.
To drive innovation, patents need to be examined – and granted – more quickly.
Governments know the time lag is detrimental and some have introduced schemes targeting “green” technology to help companies obtain a patent more quickly by accelerating the procedure, which in turn incentivises innovation.
In the UK, the scheme is known as the ‘green channel’ and it’s available for all inventions with an “environmental benefit”. For the wind industry, almost all innovation falls under this definition; whether it be a new blade design, dynamic cable systems to enable floating offshore wind, or supporting infrastructure such as HVDC converters.
Using the green channel, the typical five-year period can be reduced to less than a year and there is no cost to use the scheme.
But recent data from the UK’s Intellectual Property Office shows it is woefully underused. Up to the start of October 2023 there were only 104 requests made to the scheme, while in the same period more than 15,000 patent applications were filed in the UK. That means less than 1% made use of the green channel.
There are good reasons to apply for patents more slowly, such as spreading costs and allowing some flexibility as the design is finalised. But by getting patents granted more quickly, companies can build a valuable portfolio of assets and put themselves in the best position to secure further investment or to benefit from licensing their invention. What’s more, in the UK, lower corporation tax is due on products covered by a granted patent under the “patent box” system.
The patent system is complex; you must apply for a patent in each country separately - and all of them use their own examination process.
Other countries offer acceleration schemes too. In the US, the ‘Climate Change Mitigation Pilot Program’ offers a fast-track for inventions which “reduce and/or prevent additional greenhouse gas emissions”, which, once again clearly applies to wind technology.
Unlike the UK, the US a set limit on the number of applications which will be allowed: 4,000 in the period 1 June 2023 to 7 June 2027; around 1,000 a year.
This seems generous given the take-up of the UK scheme. But the US scheme is much more popular, with 572 requests filed already in the four months to October 2023.
It seems that UK companies are being left behind the US. Why is this? Partly, I think the culture in the US is much more IP-focussed.
Siemens Gamesa versus GE was just the start
The protracted patent litigation battle between Siemens Gamesa and GE, which came to an abrupt end earlier this year, is instructive. It’s likely that there will be more such battles as the industry develops.
Green channel schemes will not stop this patent litigation, but they can help companies register their own IP. In patent litigation, it is common for companies to reply to patent infringement lawsuits with their own counter-claim for patent infringement.
Holding your own patents can make companies think twice about suing, and small and medium sized enterprises can further level the playing field by taking out patent insurance.
Far from putting people off applying for patents, the Siemens Gamesa and GE patent litigation should be a wake-up call that patents are important for wind innovators and that companies can build their portfolios more quickly using these green channel schemes.
Laurence Brown is head of energy at specialist law firm EIP