Green Patents: Balancing Innovation, Access and Environmental Protection in India

Introduction

Amongst the biggest threats of the 21st century is the climate change phenomenon, which has required governments all over the world to step up their efforts to develop and popularise sustainable technologies. At the core of this transformation are the intellectual property rights, particularly patents, that serve as a mechanism to incentivise innovators by granting them temporary monopoly power to provide sufficient incentive to engage in costly R&D. However, when these patent barriers price and/or make green technologies out of reach, they can actually hinder the larger goal of protecting the planet.

As India becomes one of the world's largest carbon emitters and a rapidly growing economy, the challenge for the country is balancing innovation triggers, widespread availability of clean tech, and environmental protection. This discussion on “green patents” subsequently generates meaningful discussions on the sharing of technology, compulsory licensing, pricing equity, and routes towards lasting sustainability – affecting legal, financial and moral aspects.

This blog post explores the concept of green patents, the existing patent framework in India for green inventions and the question of how well the current patent system encourages inventions that would be accessible to everyone and contribute to a just climate.

Understanding Green Patents

Green patents are those awarded for inventions that cut down on environmental damage, enhance energy use, safeguard natural resources, or tackle climate impacts. These include advancements in renewable energy, electric vehicles, carbon capture technologies, waste management solutions, water purification techniques, and sustainable agriculture methods. The principle of patenting environmentally friendly technologies is obvious: new environmentally friendly technologies require high investments, and patent protection encourages inventors and companies to invest in ecological research. The World Intellectual Property Organisation (WIPO) has emphasised the essential role of patents in promoting innovation and the diffusion of clean technologies for a long time.

Still, unlike everyday commercial inventions, green technologies hold wider public value tied to global ecological health. As a result, excessive patent stringency can erect barriers to affordability and availability, particularly in emerging economies such as India.

India’s Climate Commitments and the Need for Green Innovation

The Paris Agreement has seen India make sweeping climate commitments, with a view to becoming a net-zero emitter by 2070, and a massive increase in non-fossil fuel energy base. However, achieving these goals requires widespread deployment of cutting-edge clean technologies, including solar PV panels, battery storage, hydrogen manufacturing processes, carbon-neutral industrial processes, and more. Innovation at home is increasing, but India is still using foreign technology solutions in many critical areas. International firms often have costly licensing fees for their patents, which can cause concern regarding technological dependence and inequitable access.

Hence, India’s patent framework must deftly balance:

• Promoting innovation from both domestic players and international sources

• Securing affordable entry to green technologies for widespread use

• Upholding its constitutional imperatives alongside environmental stewardship responsibilities.

The Indian Patent Framework and Green Technologies

Currently, India does not have a specific legislation for green patents. Rather, they are covered by the Patents Act, 1970, amended to conform to the TRIPS Agreement on Trade-Related Intellectual Property Rights.

Patentability Standards

To be eligible for a patent in India, an invention must satisfy the criteria of novelty, inventive step and industrial use as stipulated in Section 2(1)(j) and Section 2(1)(ja) of the Act. Green technologies thus follow the same rules as any other tech inventions. However, there are certain types of patents that are barred from being patented, as outlined in Section 3. An important feature of section 3(d) is the ability to prevent evergreen, and to find a critical balance between private incentives and public good. While it is a well-known concept from pharma cases, its concepts reflect India's concerns over unrestricted patent monopoly.

The Access versus Innovation Debate

Arguments Supporting Strong Patent Protection

Advocates for robust patent safeguards contend that green tech breakthroughs demand huge funding and specialised know-how, so diluting rights could deter companies and labs from green R&D pursuits. Take renewables: they can come from extended trials and big investments, and the patent protection can allow the creator to recover these costs through licensing and market sales. Furthermore, global companies may be reluctant to invest in areas that are considered to be weak in IP enforcement, which further underscores the importance of good IP regimes to attract foreign direct investment and joint ventures.

Concerns Regarding Accessibility

But critics argue that the same patent restrictions can slow down the deployment of climate solutions in poorer countries – and that high royalties and restrictive licences can prevent the low-cost deployment of essential green tools. This is a more severe blow because climate change is a global emergency and not a business game; in the absence of important eco-tech, developing economies are set to be at a higher cost of green transition. Others extend this argument to the treatment of green inventions as life-saving drugs, generally favouring more TRIPS instruments such as compulsory licensing.

Compulsory Licensing and Green Technologies

Few topics in green patent discourse spark as much debate as the question of whether compulsory licensing could serve as a tool to widen access to environmentally friendly technologies. At its core lies a tension: how to reconcile patent protection with urgent climate needs.

Compulsory Licensing Under Indian Law

India provides for compulsory licensing under Sections 84‐92 of the Patents Act 1970 under particular conditions. These include situations where reasonable requirements of the public have not been met, a patented invention is not available at a reasonable price, or a patent has not been worked in India. The biggest utilisation of this provision in India was in the case of Natco Pharma Ltd v. Bayer Corporation, a case relating to a cancer drug. There, the need for being affordable and for public benefit became paramount. The case was about pharmaceutical products, but it did provide a glimpse of the legal stance: India is willing to set aside absolute patent rights for the public good when necessary.

Applicability to Green Patents

This logic should be applied to green technologies too, argue many scholars, especially in times of environmental crisis or climate demands that do not allow for waiting. Compulsory licensing is already allowed by Article 31 of the TRIPS Agreement under specific conditions, and environmental protection would seem to be a legitimate public interest.

However, care must be taken. There is also a danger that over-dependence on compulsory licensing could limit innovation and inhibit cross-border technology transfers, critics said. The answer is not to take either extreme, but to design a "calibrated approach" that balances the disincentives of innovation with the rights to a clean, healthy environment.

Technology Transfer and International Obligations

Technology transfer occupies a central place in global efforts to govern climate change. Under Article 66.2 of the TRIPS Agreement, developed countries are encouraged to offer incentives aimed at facilitating the transfer of technology to least developed countries (LDCs). Likewise, the United Nations Framework Convention on Climate Change (UNFCCC) recognises technology transfer as indispensable for both mitigating and adapting to climate change. In practice, however, the actual flow of green technologies across borders has remained constrained. Commercial anxieties, licensing-related hurdles, and persistent geopolitical asymmetries have all played a role in keeping technology transfer limited.

India has consistently raised its voice for equitable technology sharing during international climate negotiations. Yet reconciling its international patent obligations with urgent domestic environmental needs continues to be a delicate balancing act.

Conclusion

Green patents are a cross-cut of three streams of law, namely IP, environmental protection and developmental policy. It is no surprise that technological innovation is stimulated by strong patents. Yet, if such protection is too much, it could impede the diffusion of climate technologies that are much needed in the cause of sustainable development, which has been very lacking so far.

In comparison with many other patent systems, the patent system in India – with its public interest protections built into the system and compulsory licensing provisions – provides a relatively balanced system. Facing the increasingly severe climatic challenges, however, the reforms have to be more complex, more proactive and have to be adapted to green technologies. Last, however, the ultimate goal should be to never do a thing to reduce the incentive to innovate. Instead, it's about making sure that environmental sustainability and technological accessibility can be achieved in ways that are just, equitable and legally sound.

Author: ABHISHEK GOPE , in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.