8.2.1 Eco-Patent Commons

In 2008, IBM announced the launch of the Eco-Patent Commons, an effort that was cosponsored by Nokia, Pitney Bowes, and Sony and eventually included thirteen large firms (Contreras et al. Reference Contreras, Hall and Helmers2019). The stated mission of EcoPatent Commons was “to manage a collection of patents pledged for unencumbered use by companies and IP rights holders around the world to make it easier and faster to innovate and implement industrial processes that improve and protect the global environment” (Contreras et al. Reference Contreras, Hall and Helmers2019). A total of 248 patents were pledged to the EcoPatent Commons, with the last such contribution occurring in 2011. In 2016, after an extended period of inactivity, the EcoPatent Commons was formally discontinued. Subsequent analysis of the citations of the patents contributed to the EcoPatent Commons suggests that the effort did little to increase the diffusion of the technology covered by contributed patents (Contreras et al. Reference Contreras, Hall and Helmers2019).

8.2.2 GreenXchange

The GreenXchange was launched in 2010 as a web-based marketplace through which firms could notify others of patent rights that they wished to make available for licensing on a set of standardized terms. The principal backer of GreenXchange was Nike, which contributed the lion’s share of patents to the platform (444 of 463 patents, or 96 percent) (Ghafele and O’Brien 2012). Despite the involvement of nine other entities, few contributed patents to the platform, and most of the contributed patents were licensed only for noncommercial use. The project appears to have wound down within two years of its launch (Xiang Reference Xiang2019, 40–41).

8.2.3 Low Carbon Patent Pledge

The Low Carbon Patent Pledge (LCPP) is a legal framework that enables patent holders to commit not to assert identified patents relating to carbon reduction against users throughout the world.Footnote ¹ The project, based on the 2020 Open Covid Pledge (OCP) (Contreras Reference Contreras2021), was initiated by three OCP members, Hewlett-Packard Enterprise (HPE), Meta and Microsoft, and now includes a number of other contributors, including Morgan Stanley and international shipping giant Maersk. The LCPP enables the free use of contributed patents via a self-executing license. Approximately 300 patents have been contributed to LCPP (lowcarbonpatentpledge.org).

8.2.4 Tesla Motors Pledge

Unlike the other efforts described in this section, which involve cooperation among a number of industrial players, the CEO of Tesla Motors unilaterally announced in 2014 that Tesla would no longer assert patents against other electric vehicle manufacturers acting in “good faith.” While this move was followed six months later by Toyota, which similarly pledged its patents in the area of hydrogen fuel cell technology, other car makers failed to join the effort (Contreras Reference Contreras2015). In 2023, Tesla asserted two patents relating to energy storage technology against an Australian firm that had previously sued Tesla under its own patents (Contreras Reference Contreras, Blind and Thumm2025).

8.2.5 WIPO Green

WIPO Green, operated by the UN-based World Intellectual Property Organization (WIPO), is not itself a private-sector initiative or a commons, but is considered here because it is intended to facilitate private commons formation. WIPO Green is essentially a clearinghouse for green patents, know-how, and other technology that their owners wish to sell or license, usually for a fee. The online resource can be searched by technology category or field, and also enables potential users of a technology to post technical needs or requirements to which technology owners can respond. Though WIPO Green has been operational since 2013, it is not clear that a substantial number of transactions have been effected using the platform, and commentators have suggested several improvements (Xiang Reference Xiang2019; Sanguir Reference Sanguir2023b, 270).

8.2.6 Other Proposals

In addition to the efforts described here, several other proposals have been made to aggregate green technology patents for broad dissemination and use around the world. These include the Global Technology Pool for Climate Change, proposed in 2009 by a group of developing countries, which would promote and ensure royalty-free access to patented technology and associated know-how (Xiang Reference Xiang2019, 38), and a cleantech patent pool proposed to be formed under the auspices of the UNFCCC GCF, which would itself develop and acquire patented technologies for use and dissemination in developing countries (Xiang Reference Xiang2019, 38). Maitra has made a similar proposal involving the subsidy of technology acquisition in developing countries through two international funds (Maitra Reference Maitra2010). None of these proposals has gained significant traction.

Likewise, a group of academics has proposed that a commons be formed around solar climate engineering (SCE) technology to facilitate responsible SCE research and development. The proposed commons would permit public and private sector research institutions to share their research data and pledge that any patents or trade secrets would be managed so as to reduce unnecessary barriers to research and development of safe and effective SCE technologies (Reynolds et al. Reference Reynolds, Contreras and Sarnoff2017). While this proposal has not yet been put into effect, there has not yet been significant assertion of patents in the SCE research community.

8.3.1 Attracting Patent Contributors

Participation in green patent commons, as defined in this chapter, will generally not result in a direct financial benefit to participants. That is, participants will not charge royalties or other amounts for the use of their patents. Yet, given that patents are potentially valuable corporate assets that require the expenditure of resources, both financial and personnel, to acquire, some justification for relinquishing patent rights is required. The benefits that private firms obtain from participation in green patent commons are largely indirect: enhancement of public image and reputation, pursuit of corporate social responsibility goals, improved employee relations, government relations, and the opportunity to collaborate with other like-minded firms (Contreras Reference Contreras2018b). But while these factors may enhance a firm’s value, they are not likely to outweigh financial gains that might be reduced by forgoing patent-related revenue in industries that are heavily dependent on such revenue (e.g., pharmaceuticals) (Contreras Reference Contreras2021, 898–899).

While a patent commons need not include all patents in a given technology area, it is most useful if it contains at least a critical mass of patents such that the collective availability of these patents encourages use of the patented technology in the field. Most of the commons formation efforts described earlier originated with one or a small group of firms: EcoPatent Commons with IBM, GreenXchange with Nike, and LPCC with HPE, Microsoft, and Meta. While an early champion and convenor of every commons project is likely necessary, such projects seem to require more general industry backing in order to succeed. Both EcoPatent Commons and GreenXchange attracted around ten participating members, which seems to have been too few to be sustainable.

8.3.2 Funding

Adequate funding is key to any project. But as already noted, most of the green technology commons projects described in this chapter were motivated by corporate mission-oriented goals rather than commercial considerations. As a result, several of these, the EcoPatent Commons in particular, suffered from a lack of sustained financial support (Contreras et al. Reference Contreras, Hall and Helmers2019). This lack of resources prevented the effort from continuing to recruit new members, seeking users for its technology, and tracking usage of contributed patents. WIPO Green, on the other hand, is a relatively well-funded effort with significant staffing and backing from the UN. As such, it has engaged in various outreach efforts and has a sophisticated and comprehensive online presence. Mattioli (Reference Mattioli2012, 148–149, 155) suggests that governmental support may be necessary for patent-sharing activities to succeed, an observation that may be borne out by the apparent unwillingness of private actors to spend significant amounts in support of commons formation that is largely motivated by mission-oriented goals.

8.3.3 Scope

Unlike technical standards such as Bluetooth or even more general ICT fields such as broadband wireless communication, the field of green technology is intractably broad. Green technology includes technologies ranging from massive infrastructural projects such as wind turbines, nuclear power stations, underwater server farms, and water treatment plants to complex manufactured products such as solar panels, electric batteries, and smart electric meters to sustainable agricultural products, building materials, carbon capture and sequestration methods, environmentally friendly personal care products, and thousands of others.

As such, general calls for the contribution of green technology patents invariably result in a hodgepodge of different and unrelated technologies that lack any coherent connection or useful synergy. For example, patents eligible for inclusion in the EcoPatent Commons could belong to any of sixty enumerated International Patent Classification codes relating to environmental or sustainability technology and including energy conservation, pollution control, sustainable materials, water conservation, and recyclability technologies (Contreras et al. Reference Contreras, Hall and Helmers2019). WIPO Green is similarly broad in scope. The GreenXchange, led by Nike, was slightly more focused on concerns of the consumer products industry, including packaging, recycling, adhesives, “green leather,” and manufacturing efficiency (Ghafele and O’Brien 2012, 8). The most focused effort, though it has largely remained a single-company program, has been Tesla’s pledge of patents in the electric vehicle industry.

8.3.4 Usage Tracking

The key measure of a commons’ success is whether its assets are put to productive use by the target user base. Thus, whether it is a technical standard, an open source software program or a green technology, the contribution of rights covering such a technology is pointless if others do not utilize the invention. Yet because most commons do not, and cannot, track usage of their included assets, it is nearly impossible for them to assess their impact on the industry.

Contreras, Hall, and Helmers, in studying the EcoPatent Commons, found few citations of contributed patents in later patents (Contreras et al. Reference Contreras, Hall and Helmers2019). And while counting patent citations is only a crude and indirect means for measuring the adoption and use of a technology, no other obvious indicia of usage present themselves in most of the green commons to date. Even WIPO Green, which allows users to indicate their usage of a technology licensed through the platform, offers little evidence of such usage.

The lack of usage tracking presents a critical problem for firms that wish to justify their participation in a commons program by pointing to some positive result of the program. Without this evidence of impact, commons efforts can be criticized as mere public relations stunts or “greenwashing.”

8.3.5 Technology Transfer

In some technology sectors, obtaining patent “freedom to operate” is important to technology dissemination and a commons offering such freedom to market participants can provide significant value (e.g., in the computing sector, the royalty-free USB standard can be implemented by all manufacturers with relative ease, and the lack of patent coverage eliminates barriers toward its adoption). Yet in other areas, such as vaccine and pharmaceutical production, it has become increasingly clear that the grant of patent rights alone is insufficient to promote the dissemination and use of a technology (Price et al. Reference Price II, Rai and Minssen2020). Complex technologies often cannot be understood and implemented, especially by nonexperts working in the developing world, merely through patent disclosures. Instead, some form of technology assistance or transfer is necessary to enable local users to take advantage of patented technologies, or even to realize that such technologies are available and applicable to local problems. This is especially the case with complex engineering and infrastructural technologies, many of which are not patented in low-income countries, but which are still difficult to implement without significant technical expertise. Yet few of the patent commons discussed earlier made allowance of the transfer of nonpatent know-how or encouraged their participants to offer hands-on training or technical assistance to potential users.

8.3.6 Localization

As Xiang has pointed out, “cleantech needs to be adapted to local circumstances” (Xiang Reference Xiang2019, 9). It often cannot simply be ported in the form conceived in a wealthy industrialized country to a country that lacks the same infrastructure and resources. As such, contributions of patent rights to a commons may have little direct relevance to users in much of the world absent specific and careful attention to local implementation needs and capabilities.

8.5.1 Narrow Technical Focus

As noted, the field of green technology is dauntingly broad. As a result, green patent commons that have been open to participation by a broad range of patent holders have attracted diverse and unrelated patent assets (Contreras et al. Reference Contreras, Hall and Helmers2019). This lack of focus has limited the value of such efforts (Mattioli Reference Mattioli2012, 155). As a result, a new green patent commons should have a narrow technical focus limited to no more than a single, well-defined product category (e.g., electric vehicles, sustainable concrete, low-power computing centers). While a narrow focus may limit the number of participants that eventually contribute assets to the commons, it is more likely that contributed assets will represent a meaningful portion of the patents covering the technology in question, thus making the commons a valuable resource for potential users.

The initial promoters of a new green patent commons must select its technical focus. If the promoters are from a single industry (e.g., the automotive industry), then it is likely that they will gravitate toward a focus that overlays on their own patent holdings. If, however, the initial promoters are not industrial participants (e.g., academic or governmental players), then they may wish to target the technical focus based on areas of perceived need or demand. For example, if their concern is with water supply, they may wish to focus the commons on water desalination and purification technology, or perhaps low-flow plumbing fixtures or efficient irrigation technologies. In all cases, commons planners should consider the factors raised in the following section prior to finalizing their choice of the commons technology focus.

8.5.2 Patent Landscaping

With a proposed technical focus in mind, commons planners would be well advised to determine the level of patent protection that exists for the chosen technology. A patent landscaping exercise, which can be accomplished via one of several different commercial service providers, identifies the patent coverage for a particular technology across a range of selected jurisdictions. A landscaping exercise can help to identify (a) the number of patents relevant to the technology, (b) the geographic scope of protection, and (c) the specific entities holding these patents. Each of these types of information can be valuable at the planning stages of a commons. For example, if a particular technology such as wireless communication capabilities for smart meters is covered by a large number of patents, while a different, yet similarly valuable technology, such as smart meter tamper-proofing, is covered by only a few patents, then it may be worthwhile to focus on the technology that has lesser (or greater) patent coverage, depending on the resources that will be at the commons’ disposal. Likewise, the geographic profile of patent coverage can shape commons strategy. For example, if a technology is protected largely in Western high-income countries, then an approach that seeks to disseminate that technology in the global south through knowledge transfer and technical assistance could be fruitful. Finally, knowing how many and which entities own the patents covering a technology can be extremely useful. For example, a technology covered by patents held by a small number of governmental agencies could be approached in a different manner than a technology covered by patents held by dozens of private firms. For example, in one recent study, researchers found that the vast majority of Indian patents covering smartphone technology were held by a handful of foreign firms well known for aggressively monetizing their patent portfolios (Contreras and Lakshané 2017). Pursuing a commons in this technology space and geography would likely have been fruitless.

8.5.3 Targeted Recruitment

As shown by the examples of the EcoPatent Commons and other green patent commons, a general solicitation for participation, unless backed by a significant and well-funded recruitment program, is not likely to result in significant growth of the commons. However, the patent landscaping exercise described in the preceding section can identify individual patent holders that can be approached regarding participation in a commons effort. Such an approach can emphasize the potential benefits that a firm can obtain from participation in the commons including, in addition to the “soft” factors discussed in “Contribution of Patents,” the potential to sell related products or services (a common motivation for royalty-free patent pledges in other industries (Contreras Reference Contreras2015).

8.5.4 Guaranteeing Freedom to Operate

Both GreenXchange and WIPO Green permitted patent holders to charge users to operate under contributed patents in certain cases, such as commercial use. The possibility of such charges is likely to reduce overall uptake of patented technology. As the designers of the Open Covid Pledge concluded in 2020, the greatest uptake of a pledged or contributed technology is likely to occur when the technology is made available without charge, as this guarantees that the user will have freedom to operate, at least with respect to the contributed patents (Contreras Reference Contreras2021, 861–862).Footnote ³ Thus, rather than leave open the possibility of direct monetization of contributed patents, patent holders should seek compensation, direct or indirect, via the means described in the preceding section.

8.5.5 Technology Transfer and Assistance

As noted earlier, one of the key drawbacks of prior green patent commons was their lack of know-how transfer and technical assistance, and it is likely that assistance from patent holders would increase dissemination and use of contributed technology. However, unlike the contribution of patent rights to a commons, which is a legal action that, once effected, requires little human intervention, technical assistance is a resource-intensive activity that imposes ongoing costs on the provider. As such, such assistance is unlikely to be provided unless (a) the patent holder is willing to commit significant financial and human resources to technical assistance, potentially detracting from its own research and development efforts, (b) the patent holder is compensated for the provision of technical assistance, either by the recipient (which is unlikely) or by a third party (e.g., a foundation interested in promoting green technology dissemination), or (c) such technical assistance is provided by a third party such as the foundation noted earlier. Planners of a commons should carefully consider and seek the support necessary to provide technical assistance under one of these models if the relevant technology requires such assistance in order to be most useful in the target market(s).

8.5.6 User Outreach

Just as targeting potential contributors to a green patent commons is important, so is the thoughtful targeting of potential users. Commons planners should identify potential users, or classes of users, when selecting the technical focus of the commons. One clear group of potential users is the holders of patents identified through the landscaping exercise suggested earlier. These are firms that have already invested in the development and protection of the technology in question and are likely to benefit from increased freedom to operate in the relevant technical field. Beyond patent holders are firms active in providing products or services in the technical field, but which rely on others to source the relevant technology. Beyond these (particularly in the developing world) are firms, governments, and nongovernmental organizations that have missions relevant to the technology field but may not yet be active in it. All of these prospective users should be identified and contacted, with an offer of technical assistance, by commons organizers or their designees.

8.5.7 User Tracing

As noted, a key deficiency of the EcoPatent Commons and other green patent commons has been their inability to trace the usage of contributed assets, or even to assess definitively whether such assets have been used at all. This lack of usage data has deterred firms from participating in patent commons, as they have little basis on which to assess the value of the activity. There are several ways that usage tracking can be improved. First, if know-how transfer and technical assistance are more closely linked to patent usage, then identifying potential technology users will be substantially easier, as the recipients of such assistance can be observed. But even without technical outreach, contributors can monitor the industry for evidence that patented technologies are being put to active use. Such monitoring will be made substantially easier if the technical focus of green patent commons is narrowed, per the suggestions made here, rather than broadly open-ended, as prior commons have been (i.e., it is easier to monitor developments and product introductions in a narrow field than a broad one). In all cases, commons organizers should either dedicate sufficient internal resources to user identification or contract with a reliable and dedicated third party, such as an academic or nonprofit research group, to undertake this activity over a sufficient number of years following the contribution of assets.