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How Intellectual Property Is Fueling The Renewable Energy Boom

solar panel with sunset background. concept clean energy

The world’s shift towards renewable energy sources relies heavily on cutting-edge technology and a global commitment to sustainability. As this transition accelerates, intellectual property (IP) rights become a cornerstone for developing and implementing these advancements.
Navigating the IP Landscape
Numerous key considerations regarding IP emerge during the energy transition, namely:
  • IP ownership, particularly in collaboration between research and development (R&D) partners whether universities, businesses, and/or service providers. For example, an inventor should be cognisant of the laws and internal policies surrounding the creation of IP where a university is one of the collaborators. Generally, the university will own the IP created. It is therefore vitally important to review the agreements entered into with a university to clearly define the ownership of the IP from the start (it is possible to own IP where a university is one of the collaborators, the inventor just needs to follow the applicable law that applies to public bodies / governmental institutions). Likewise, it is vitally important to clearly define what the parties will contribute to the collaboration and the subsequent IP ownership upfront in any agreement entered into with businesses and/or service providers whom the inventor collaborates with.
  • Licensing agreements, carefully crafted licensing terms define the scope and flexibility of rights and obligations for all parties involved, including the inventors desired level of control. It is important to prioritise and reflect the inventor’s wishes when in the licencing agreement and deal with the scenario where any of the collaborators may leave the collaboration.
  • Infringement risks, identifying and mitigating potential infringement of existing third-party IP rights will prevent project delays.  It is critical to ensure that all IP contributions are original and that there is an appropriate indemnity to protect the other contributors from possible third party IP infringement.
Various Protecting Mechanisms In Innovation

The surge in R&D activity within the renewable energy sector fuels an inevitable rise in IP protection efforts.   There are a variety of mechanisms to be used to ensure that new IP gets protected appropriately.

Patents

Patents play a central role in protecting an invention, as seen in the wind turbine industry where numerous patents safeguard various aspects of design, manufacturing, and operation. Similarly, the electric vehicle industry witnesses patenting activity across batteries, motors, controllers, and charging infrastructure.

Design

Design rights provide an additional layer of security for the unique aesthetic and/or functional features of new products. Design protection focuses on the shape, pattern, ornamentation and/or configuration of the invention whereas a patent protects the underlying workings of the invention. In some cases, it may even be essential to file for both patent and design protection of your invention.

Novelty (newness) is crucial for patent and design protection. In South African design applications, you have a 6-month grace period to file after publicly disclosing your design. However, a South African patent requires absolute novelty meaning your invention cannot have been disclosed anywhere in the world before filing. A patentability search, also known as a novelty search, is an essential step in determining whether your invention is novel and will therefore be granted a patent.

To prevent accidental public disclosure that could destroy patentability, inventors in South Africa should consider filing a provisional patent application as soon as possible. This gives them a period of 12 months to refine their invention before filing a complete application. Additionally, before discussing their invention with any third party for any reason whatsoever, inventors should secure a non-disclosure agreement (NDA) to protect any information shared. This ensures the third party keeps the invention confidential and avoids jeopardising patentability.

Trade marks

Companies seeking to capitalise on their green credentials can leverage trade marks for new products and services. However, thorough clearance checks are essential to avoid confusion with existing trade marks. Additionally, generic terms like “green” or “eco” may not qualify for trade mark protection, however may be utilised on conjunction with specific marks, subject to certain disclaimers being made.

Copyright

Copyright is also an important form of IP used to protect works covered by the Copyright Act. Should you use a computer program to analyse data and present same in a table or compilation which is stored or should you develop a computer program itself copyright will subsist in these forms of works covered by the Copyright Act.

Other, sometimes forgotten rights

Beyond patents, designs and copyright there are trade secrets and confidential information that the parties to a collaboration agreement need to address appropriately and ensure that their interactions between each other reflect what was agreed.

Balancing Innovation And Accessibility

IP rights serve the primary purpose of encouraging innovation by rewarding inventors and creators for their work. By publicly disclosing technological details, IP fosters a knowledge-sharing environment that sparks further advancements.

Furthermore, IP rights grant holders the power to prevent unauthorised copying or use of their creations. This allows them to safeguard their investments, gain a competitive edge, and generate revenue through licensing agreements. These revenue streams can then be reinvested in R&D, propelling business growth and job creation.

The global push for sustainable solutions necessitates a balance between IP protection and fostering widespread adoption of renewable energy technologies. The inherent flexibility of IP rights allows companies to strike this balance. They can seek financial returns through commercialisation and licensing while also exploring open-source models or non-commercial collaborations for specific aspects of their IP. Notably, even if a company desires their invention to remain publicly available, securing IP rights ensures no third party can exploit it commercially without their consent.

To sum up, incorporating a well-defined IP strategy for utilising, protecting, and mitigating risks associated with energy transition advancements will be a critical driver for the successful development and deployment of these new technologies, ultimately propelling us towards a more sustainable future.

For any assistance or guidance contact Claire Gibson at cgibson@dkvg.co.za.

Written by: Claire Gibson-Pienaar
Patent Attorney | De Klerk & Van Gend Inc.