Delving into the dynamic relationship between Environmental, Social, and Governance (ESG) principles and Intellectual Property law. This Article explores how intellectual property strategies shape sustainability, social responsibility, and ethical governance in today's evolving legal landscape.

The World Intellectual Property Organization (WIPO) has repeatedly emphasized the crucial role IP law plays in protecting the environment through the promotion of sustainable innovation, commonly referred to as ‘clean technology’. Clean technology is defined by the UN as energy-generating technologies that reduce or eliminate waste, pollution, and issues associated with production.  WIPO estimates that if all nations fulfill their announced energy and climate targets, the global market for clean technology specifically related to energy will be worth over €600 billion annually by 2030.

Moreover, WIPO’s ‘Green Platform’, is a commendable incentive linking private initiative with society’s needs. The interplay of environmental concerns and intellectual property law creates both opportunities and challenges, underscoring the importance of responsible exchange of technological information for the sake of climate change adaptation and mitigation. Electric car giant Tesla is the first electric vehicle company to publish its patents to the open domain. The pioneer in the production of electric vehicles, sought to draw attention to its dedication to developing sustainable technologies and the potential for IP strategy to support cooperative efforts in the face of environmental difficulties. Following the open-source community's standard practices, Tesla aligns with GPL compliance principles. In 2018, the company uploaded the source code of its in-vehicle system program to Github.

Social Responsibility in the Medicinal Patent Industry 

The ethical and social responsibility aspects of IP law are intricate and this is particularly highlighted in the domain of public health and medical access. One of the biggest ethical challenges facing pharmaceutical businesses and regulatory IP strategies is striking a balance between safeguarding the business’ IP rights and providing equal access to life-saving medication. Novel solutions, including differential pricing, patent pooling, and compulsory licensing, have been developed to overcome this. The European Alliance for Responsible R&D and Affordable Medicines actively advocates for the importance of transparency and dialogue with civil society, especially when it comes to innovation with the potential to save lives and improve the well-being of millions of people. Annually, the Euopean Patent Office (EPO) releases millions of patent applications and granted patents spanning various technology domains. This grants unrestricted access to technical information that would otherwise remain inaccessible without the patent system. The EPO's online public database, Espacenet, plays a crucial role, hosting over 140 million patent documents from more than 100 countries. It serves as an essential resource and catalyst for innovation. Notably, a significant portion of patents in Espacenet is inactive, allowing scientists and researchers to freely utilize them in their work.

In an effort to enhance the transparency inherent in the patent system, the EPO has introduced various initiatives over the years to increase the accessibility of patent intelligence. One such initiative is the Fighting Coronavirus platform, inaugurated in 2020. To date, EPO patent examiners and data analysts have curated over 350 datasets, aiding clinicians, scientists, and engineers in their vital research endeavors. This support contributed to the urgent quest for vaccines, treatments, and technologies crucial in combating the spread of diseases and preserving lives. Additionally, the EPO is set to release a report on mRNA vaccine technology, a groundbreaking development that played a pivotal role in saving millions of lives during the COVID-19 pandemic.

Preservation of Cultural Heritage

The preservation of cultural heritage is another aspect of the social responsibility principle of ESG. Europe’s ongoing efforts dedicated to the conservation of cultural wealth is demonstrated through various policies and legislations. The recently implemented EU Regulation on Geographical Indication Protection for Craft and Industrial Goods (EU 2023/2411) is testament to these efforts. Traditional handcrafts and industrial goods like Malta's Bizzilla or Italy's Carrara marble are now afforded the safeguards of the EU quality mark. The establishment of this mark through the Regulation promotes a deeper awareness of cultural heritage by assisting customers in identifying and appreciating the distinctive qualities of these goods. The social component of ESG is strengthened by this regulatory framework under IP law, protecting Europe's unique cultural heritage and assisting local communities and craftsmen.

Trademark Goodwill as a Public Good 

Brands wield considerable "global communicative power"[1] but exhibit limited signaling efficacy, particularly in crucial aspects such as sustainability standards. The trust function of a trademark involves conveying specific quality attributes, encompassing pertinent certifications for sustainability standards and associated corporate social responsibility (CSR) initiatives. One could argue that the trademark's trust function, which is less acknowledged, is closely linked to its more conspicuous and widely accepted role in signaling quality. Brands are a central tool in global governance accounts.

As described by Douglas Kysar, this prominence is part of a global shift from

“government to governance.” Large retailers and brands from Apple to IKEA and Zara have the power to set styles, prices, and delivery schedules for their suppliers, so, advocates argue, they should also be able to influence the conditions of workers, communities, and the environment. This is considered as market-based governance. It is effectively the power which corporations can exercise through their IP, most obviously, trademarks.

What this means for you

The increasing recognition of ESG principles augurs well. As society continuously adopts ESG principles throughout its innovation, IP plays an important role in promoting principles which are vital for an ever-more global and technology enabled society. In practice, there are various ways in which IP can enable start-ups and corporations alike reach their ESG goals.

How we can help

At Chetcuti Cauchi, we seek to apply a pragmatic business approach to each client’s intellectual property matters and obtain results consistent with the client’s business needs. As a Malta IP Law Firm Chetcuti Cauchi offers a wide-ranging variety of services for individuals and entities seeking to protect their ideas, marks, inventions, works and designs from potential threats. Our lawyers strive to keep abreast with the latest legislative and regulatory updates. Find out more on how we can empower you reach your ESG goals.