International Standards for Intellectual Property Rights Protection: A Reflection on Climate-friendly Technology Transfer

Abstract

An unsettled debate exists with regard to the role of intellectual property (IP) rights in international climate negotiation. This debate is based on premise that the international TRIPS Agreement set out minimum standards of protection, which presumably allow for unlimited extra protection. This study aims to address the question of whether a premise for minimum protection standards exists in the international IP system combined with climate-friendly technology transfer. First, the basic question of why international IP standards generate an impact on climate-friendly technology transfer is clarified. Second, three levels of arguments are applied to question this premise and examine the rationality of minimum protection standards. The three arguments are as follows: (1) Has TRIPS Agreement 1.1 provided unlimited minimal standards for IPR protection? (2) Is there no conflict between TRIPS Agreement-PLUS and the TRIPS Agreement? (3) How about the WTO dispute settlement panel report about this problem? The finding is that the dominant default policy, the IP protection standard, is the only minimum requirement in the case of uncertainty in legal provisions and practices. Therefore, the negative effects on the transfer of climate-friendly technology increase in terms of using flexible provision to promote import technologies. Third, this paper introduces China’s current Patent Law and its practice in response to climate-friendly technology transfer. Lastly, this paper provides suggestions with regard to the need for comprehensive and explicit protection standards in the context of climate-friendly technology transfer.