Abstract

As diplomats and climate change negotiators discussed patents
as a barrier to international transfer of clean technologies in December 2009 in Copenhagen, California solar thermal startup eSolar was finalizing a deal to build at least 2 gigawatts of solar thermal power plants in China. At the time the largest solar thermal deal ever, it was structured as a master licensing agreement with Chinese electrical power equipment manufacturer Penglai Electric. The eSolar-Penglai deal is just one of many recent partnerships, joint ventures, and licensing arrangements between clean technology firms in developed countries and investors, developers, utilities and builders in developing countries. Despite the reality on the ground, the United Nations Framework Convention on Climate Change (“UNFCCC”) and the developing country parties to the UNFCCC treaty have put forth a host of policy proposals to weaken or even eliminate IP rights in clean technologies. This article seeks to provide a clean tech reality check by highlighting nine significant clean technology transfers between developed countries and developing countries in the one-year period leading up to the Copenhagen talks. This article observes that IP rights were not a barrier to any of these deals and may have helped facilitate the technology transfer by providing exclusivity in the developing country market.