How does this effort enable an organization to contribute to the fight against climate change?
This site gives users two options for getting involved. First, an organization can “Support” the Low-Carbon Patent Pledge. This is an expression of institutional support without any legal obligation. Second, an organization or individual can “Make the Pledge,” promising the public free use of relevant select patents for this purpose. To implement the pledge, the pledgor need only provide a list of the patents the pledgor wishes to provide the public a license to consistent with the pledge.
What is the Low Carbon Patent Pledge?
The Low Carbon Patent Pledge is a commitment by holders of intellectual property to share some or all of their intellectual property for the purposes of reducing climate change through encouraging the use of low-carbon technology. The goal is to promote adoption of low-carbon technologies and create sustainable breakthroughs in order to avert climate disaster.
What is the legal effect of a pledge?
A pledge is a promise that the IP owner makes to the public with respect to all or some of its intellectual property. In this case, the promise is made legally enforceable through the grant of a specific license. When a pledge is made and publicized, the pledgor is telling others that they have permission to take the actions described in the pledge. Even though a written contract may not be signed, this promise has legal force, especially if others rely on it and start to make and sell their own products based on the pledgor’s IP.
Who can make the Low Carbon Patent Pledge?
Individuals, institutions, companies and other organizations who hold intellectual property rights can all make the pledge. For organizations, the pledgor must have the legal authority to commit the organization.
How does an organization making the pledge benefit?
There are many benefits from making the pledge. First, we believe that everyone benefits from adopting technologies that avert climate change — an issue for all humanity. Climate change is a challenge none of us can overcome by working independently. We must solve it together through open collaboration, shared learning, building on each other’s achievements, and inspiring one another to set and meet ever more ambitious goals. Moreover, organizations that make the pledge will be viewed as leaders in the journey to decreasing carbon emissions and will bring awareness to the climate crisis. They will receive public recognition for their contributions, and will be viewed as helping their customers, employees, humanity, and the environment.
If I take the Pledge, does it mean all of my organization’s intellectual property is subject to it?
No. The Pledge is a statement of intention that is manifested and made legally enforceable only on pledged patents. If you wish to license only some and not all of the intellectual property rights you control, all you need do is specify which assets you would like to pledge. Several companies and organizations have chosen to limit the reach of the Pledge and the underlying license to particular IP rights or technologies.
What is an intellectual property license?
Under the laws of most countries, the owner of a patent (“intellectual property” or “IP”) has as a matter of patent rights, the exclusive right to make, use, sell, distribute, modify and otherwise exploit products, compounds and other things covered by that right. The owner can permit others to take these actions by granting them a license.
Do users have to sign the license?
No. The Low-Carbon Patent Pledge Licenses are public licenses in which the owners of low-carbon related IP make a unilateral pledge allowing others to use this IP when the patented technologies are used for the generation, storage, or distribution of low‐carbon energy from solar, wind, ocean, hydropower, or geothermal sources.
What rights are granted under the Low Carbon Patent Pledge?
Under the Low Carbon Patent Pledge license, the IP owner grants others a license to use the patented technologies for the generation, storage, or distribution of low‐carbon energy from solar, wind, ocean, hydropower, or geothermal sources.
Are there any charges for using the pledgor’s licensed IP?
No. A royalty‐free license is granted to any person or entity that wishes to accept it when the patented technologies are used for the generation, storage, or distribution of low‐carbon energy from solar, wind, ocean, hydropower, or geothermal sources.
Is the pledgor required to interact with licensees in any way?
No. The Low-Carbon Patent Pledge and the Low-Carbon Patent Pledge Licenses are simply a grant of legal rights. It does not require the pledgor to provide materials, cell lines, prototypes, designs, plans, data, trial results, software or anything else to a licensee. If the licensee wants any of these things, it should approach the pledgor separately to negotiate to acquire them.
How long do the Low Carbon Patent Pledge Licenses last?
All of the Low Carbon Patent Pledge Licenses (not necessarily any alternative licenses) are effective as of April 22, 2021 regardless of when it was first granted. The end depends on the particular license you choose. Refer to the chart above for details about each.
How is regulatory exclusivity handled under the Low Carbon Patent Pledge Licenses?
Under the Low Carbon Patent Pledge Licenses, the IP holder commits that it will not assert any market exclusivity to prevent others from exercising the patent rights granted under the license.
Is the licensee required to grant any rights back to the IP holder?
No. The license granted under the Low-Carbon Patent Pledge Licenses is a one-way commitment from the pledgor to licensees. Licensees are not required to grant rights back to the pledgor. While this imbalance may seem unfair or inequitable in some ways, we believe that it will result in the greatest adoption of licenses by manufacturers and institutions around the world. And, of course, we encourage all holders of IP relating to Low-Carbon technology to make the pledge as to their own IP.
What if the licensee sues the IP holder?
If a licensee threatens or sues the pledgor for infringing any IP relating to Low-Carbon Patent PLedge, then the license will automatically be suspended until that threat or suit is withdrawn. This provision is intended to assure pledgors that they will be able to assert their IP defensively if they are attacked by another party.
Does the pledge guarantee that a licensee will be able to manufacture or sell any particular product?
No. Some products may be covered by IP that is held by multiple parties. In order to manufacture or sell such products, the manufacturer must ensure that it has obtained rights from all holders of IP. We recognize that it may be difficult to determine who owns all of these rights. But that is a problem that exceeds the scope of what the Low-Carbon Patent Pledge License can accomplish except through identification of some pledgors and, if provided, the IP rights made subject to the pledge. Our hope, of course, is that all major holders of COVID-related IP will adopt the pledge, making the production of these technologies free from IP risk. However, this cannot be guaranteed.
What happens if a licensee exceeds the scope of the license that is granted?
If a licensee exceeds the scope of the license that is granted then it is infringing the relevant intellectual property and the IP holder is entitled to pursue all available legal remedies. Nothing in the Low-Carbon Patent Pledge License prevents an IP holder from enforcing its IP rights against a party operating outside the scope of the license.
What if some of the IP that is licensed is found to be invalid?
The validity of patents is often challenged in litigation on various grounds. If IP is invalid, then the IP owner cannot restrict its use and the licensee doesn’t need to abide by the License conditions. In short, the invalidation of IP licensed under the Low-Carbon Patent License should not matter to licensees or others, given that no payments are being made under the License. So this is largely irrelevant to the License.
Why doesn’t the Low Carbon Patent Pledge License permit sublicensing?
The Low Carbon Patent Pledge License does not permit sublicensing by the licensee because the license itself is open to any organization that wishes to benefit from it. It is preferable in this situation that all rights flow from the original IP holder, and a direct relationship between the IP holder and the user of the IP rights is necessary for purposes of enforcement, defensive suspension and other purposes.
Does the Low Carbon Patent Pledge or Low Carbon Patent Pledge Licenses protect IP owners from antitrust or competition law claims?
No. While the pledge and Low Carbon Patent Pledge Licenses are based on longstanding models that have withstood antitrust scrutiny around the world, it does not immunize other anticompetitive behavior by IP owners.
Will the Low Carbon Patent Pledge or the Low Carbon Patent Pledge Licenses ever be changed?
The language of the pledge and licenses have been carefully crafted. But as both are used over time, it may become clear that modifications would increase their effectiveness. If either is modified in the future, the new version will be noted and dated, and prior versions will be archived and made publicly available in a clear way. Changes made after the date of your adoption will not apply to you unless you affirmatively choose to do so.