Climate Technology Patents and Compulsory Licensing in India

The relationship between intellectual property protection and the global response to the climate crisis has emerged as one of the most consequential and contested debates in contemporary international law. At its centre lies a fundamental tension: the patent system, which incentivises innovation by granting inventors temporary exclusivity over their inventions, simultaneously creates barriers to the rapid, equitable diffusion of the very technologies that the world needs most urgently to decarbonise. Solar panels, wind turbines, energy storage systems, carbon capture technologies, green hydrogen production processes and electric vehicle battery chemistries the building blocks of the global energy transition are increasingly the subject of dense patent thickets owned predominantly by corporations and research institutions in the global North. For developing and emerging economies, including India, which bear disproportionate climate burdens while contributing relatively little to historical emissions, the question of how to access these patented technologies at affordable prices has become a matter of national urgency and international advocacy.

Compulsory licensing the mechanism by which a government authorises the use of a patented invention without the patent holder’s consent, in exchange for adequate remuneration has long been the principal legal instrument through which access-to-technology concerns are addressed within the intellectual property framework. Its most prominent application has been in the pharmaceutical sector, where the Doha Declaration of 2001 and India’s landmark compulsory licence in Bayer Corporation v. Natco Pharma Ltd. established that public interest can override patent exclusivity in defined circumstances. The emerging debate is whether the same logic should now be extended, with equal force, to climate technologies and what legal, institutional and political challenges such an extension would entail.

The Scale of the Problem – Patents, Concentration and the Technology Access Gap

Understanding the debate requires first understanding the degree to which climate technologies are concentrated in the hands of a small number of actors in a small number of countries. The vast majority of patents in renewable energy, energy efficiency and low-carbon technologies are held by companies and research institutions resident in North America, Western Europe, Japan, South Korea and increasingly China. The International Energy Agency has observed that approximately forty percent of the emissions reductions needed to meet the goals of the Paris Agreement depend on technologies that have not yet been deployed commercially at scale technologies that, when they do reach commercialisation, will typically be protected by patents whose terms and licensing conditions are set unilaterally by the holders.

India’s own position within this landscape is revealing. Between 2016-17 and 2021-22, the Indian Patent Office granted over 91,500 patents in total, of which a substantial share estimated at over 61,000 related to green technologies. Yet a significant proportion of those patents are held by foreign entities, meaning that the licensing terms, royalty rates and technology access conditions are largely beyond Indian domestic control. For Indian manufacturers seeking to produce renewable energy equipment, Indian utilities seeking to deploy the most efficient solar or battery technologies and Indian researchers seeking to build on the global state of the art, patent restrictions can impose both direct cost barriers and indirect knowledge barriers that impede technological self-sufficiency.

The problem is structural. Climate-related technologies are research-intensive and capital-heavy, making patent protection commercially rational from the innovator’s perspective. But the logic that justifies patent protection in the domestic market of the innovating country reward for R&D investment, incentive for future innovation translates poorly to the context of a developing country that has neither the capacity nor the obligation to replicate that R&D spending and whose climate adaptation needs are urgent, non-deferrable and directly related to emissions produced by others.

The International Legal Framework – TRIPS, UNFCCC and the Paris Agreement

Any analysis of compulsory licensing for climate technologies must engage with the layered international legal framework within which both patents and climate action operate. The Agreement on Trade-Related Aspects of Intellectual Property Rights TRIPS sets the minimum global standards for patent protection and defines the conditions under which compulsory licences may be granted. Article 31 of TRIPS permits compulsory licensing on grounds determined by national law, subject to conditions including prior efforts to obtain a voluntary licence on reasonable commercial terms (which may be waived in cases of national emergency or extreme urgency), payment of adequate remuneration to the patent holder and restriction of use predominantly for the domestic market.

The Doha Declaration on TRIPS and Public Health, adopted by WTO Members in 2001, clarified that TRIPS flexibilities including compulsory licensing are available to protect public health and that Members have the right to determine what constitutes a national emergency or other circumstance of extreme urgency. Critically, the Doha Declaration did not confine its reasoning to the pharmaceutical context it affirmed the principle that TRIPS should be read and implemented in a manner supportive of WTO Members’ rights to protect public health and promote access to medicines for all. The question of whether equivalent flexibility applies to climate technologies turns on whether climate change with its severe consequences for human welfare, health, food security and the habitability of nations qualifies as a circumstance of extreme urgency comparable to a public health emergency.

Developing countries have argued for years that it does. In the context of UNFCCC negotiations, Article 4.5 of the Framework Convention requires developed countries to take all practicable steps to promote, facilitate and finance the transfer of or access to, environmentally sound technologies and know-how to developing country parties. The Paris Agreement’s Article 10, on technology development and transfer, reaffirms this commitment and establishes a Technology Framework to support the implementation of collective long-term goals on technology development and transfer. Yet these provisions remain aspirational and have not produced enforceable technology transfer obligations on patent holders in developed countries leaving the question of how to operationalise the commitment to technology access effectively unanswered.

The gap between the UNFCCC’s technology transfer aspirations and the TRIPS system’s IP protections is where the compulsory licensing debate for climate technologies is located. In March 2013, Ecuador became the first country to formally raise the intersection of IP and climate technology access in the WTO’s TRIPS Council, submitting a document entitled “Contribution of Intellectual Property to Facilitating the Transfer of Environmentally Rational Technology.” This submission opened a formal multilateral dialogue still unresolved on whether and how TRIPS flexibilities should be applied to accelerate the diffusion of climate technologies to developing countries.

India’s Position – Between Climate Justice and IP Reform

India has been among the most vocal developing countries arguing for the integration of compulsory licensing into the global climate technology transfer framework. Together with China, India has consistently pushed in UNFCCC negotiations for special licensing provisions to be agreed upon for patented climate-change-mitigating technologies, arguing that the access-to-medicines precedent established by the Doha Declaration should be replicated for clean energy and climate adaptation technologies. India’s position is grounded in its twin commitments to development and climate action a country that announced at COP26 a net zero target of 2070 and a goal of achieving fifty percent non-fossil fuel energy capacity by 2030, which it successfully met in June 2025, five years ahead of schedule, while insisting that the path to those targets must be financed and technologically enabled by those who bear the greater historical responsibility for the climate crisis.

At COP29 in Baku in 2024, India joined other developing countries in a strong push to prioritise Article 9.1 of the Paris Agreement the provision placing an obligation on developed countries to provide finance on the formal agenda, reflecting the persistent frustration of the global South with the gap between technology transfer commitments and their delivery. In the WTO context, India has also been critical of the European Union’s Carbon Border Adjustment Mechanism, which came into force in January 2026, as a form of unilateral trade protectionism dressed in the language of environmental protection a position that reflects India’s broader concern that the architecture of climate governance is being shaped in ways that compound rather than correct the North-South technology access divide.

India’s negotiating posture also reflects its domestic experience with compulsory licensing. The Bayer v. Natco decision, which established the first-ever Indian compulsory licence for a pharmaceutical product in 2012 on the grounds that the drug was unaffordable and not adequately worked in India, demonstrated that the existing framework under Section 84 of the Patents Act, 1970 is capable of addressing access crises in technology-intensive sectors. That experience has informed India’s international advocacy the argument being that the domestic legal architecture to support compulsory licensing for climate technologies is already substantially in place and what is needed is the international political clarity to confirm that its use for climate purposes is consistent with TRIPS obligations, just as the Doha Declaration confirmed its use for public health purposes.

The Domestic Legal Framework – Section 84 and Climate Technologies

India’s existing compulsory licensing provisions under Sections 84 and 92 of the Patents Act, 1970 are the legal instruments through which compulsory licences for climate technologies would, in the current state of the law, be pursued domestically. Section 84 allows any person to apply to the Controller of Patents for a compulsory licence three years after patent grant, on the grounds that the reasonable requirements of the public have not been satisfied, that the patented invention is not available at a reasonably affordable price or that the invention is not being worked in India.

Each of these grounds has potential application to climate technology patents. A renewable energy technology that is patented but priced prohibitively for Indian manufacturers or that is licensed on terms that effectively exclude Indian companies from the market, may satisfy the “not available at reasonably affordable price” ground. A climate technology that the patent holder is not manufacturing or deploying within India may satisfy the “not worked in India” ground. The public interest dimension of clean energy technologies which serve air quality, energy security and climate adaptation goals that directly affect the wellbeing of hundreds of millions of people provides a compelling factual backdrop for arguing that the reasonable requirements of the public are not being satisfied.

Section 92 of the Patents Act provides a parallel and potentially more accessible route for compulsory licensing in circumstances of national emergency or extreme urgency or for public non-commercial use, by allowing the Central Government to issue compulsory licences directly by notification, without the requirement of prior negotiations with the patent holder. A declaration that climate change and specifically the urgency of deploying particular renewable energy or energy efficiency technologies, constitutes a circumstance of extreme urgency or national emergency under Section 92 would be a legally significant and politically consequential step one that has been discussed in academic and policy circles but not yet taken by the Indian Government.

The challenge of applying the Section 84 framework to climate technologies is partly procedural and partly substantive. Procedurally, the Bayer v. Natco precedent established that the grounds for compulsory licensing must be individually and carefully established Lee Pharma’s failed application for a compulsory licence over AstraZeneca’s Saxagliptin patent demonstrated that the mechanism is not available to applicants who have not made genuine prior efforts to obtain a voluntary licence or who cannot demonstrate the capacity to work the patent at scale. Applicants seeking compulsory licences for climate technology patents would face equivalent rigour. Substantively, the question of whether the “not worked in India” ground applies to technologies that the patent holder is licensing to third-party manufacturers in India as distinct from manufacturing themselves remains a live interpretive issue, as the Bayer v. Natco decision turned in part on the distinction between manufacturing and importation in establishing non-working.

The Green Patent Fast-Track – India’s Current Positive Response

While the compulsory licensing debate addresses the access side of the equation, India has also implemented measures on the incentive side designed to encourage the development and registration of climate technologies through the patent system rather than to override that system. The Patents (Amendment) Rules, 2020 introduced an expedited examination pathway for patent applications relating to green technologies under Rule 24C of the Patents Rules, 2003. Under this scheme, applications relating to renewable energy, alternative-fuel vehicles, pollution control and other environmentally beneficial technologies are eligible for examination to be completed within twelve to eighteen months, compared to the three to five years typical of standard examination. India’s approach tracks similar green patent fast-track programmes introduced by the United Kingdom (Green Channel, 2009), Australia, Japan, South Korea, China and the United States, though India’s scheme arrived later than most.

Data from the Indian Patent Office in 2024 shows an increase in expedited examination requests for green technologies under Rule 24C, reflecting growing awareness among Indian innovators and international applicants of the pathway’s availability. The example of Matter Motors, an Indian electric vehicle startup that received patents within seven months of filing through the expedited route, illustrates the practical acceleration the scheme can deliver. India has also aligned its patent classification practice for green technologies with the WIPO Green Inventory the International Patent Classification system developed by the World Intellectual Property Organisation to facilitate the searching and identification of environmentally sound technologies in global patent databases.

However, as analysts at SpicyIP observed in 2026, speed alone does not ensure climate impact. Unlike China, which ties green patent grants to deployment incentives and local manufacturing objectives, India’s current system is largely confined to the grant stage once a patent is obtained, the system provides no structural mechanisms to ensure that the patented technology is actually deployed at scale, made available for licensing on accessible terms or transferred to domestic manufacturers in a form that builds enduring local capability. The fast-track examination is a useful but insufficient response to a problem that extends well beyond the speed of patent prosecution.

The Core Tension – Innovation Incentives and the Urgency of Access

At the heart of the compulsory licensing debate for climate technologies is a genuine tension between two legitimate interests, rather than a simple conflict between the public good and private greed. The case for robust patent protection in climate technologies rests on the observation that the clean energy transition requires enormous private investment in research and development investment that is only commercially rational if investors can expect to recapture their costs through market exclusivity or licensing revenues. Solar panel efficiency, battery energy density, carbon capture efficiency and green hydrogen production costs have all improved substantially over the past two decades and a significant part of that improvement has been driven by R&D investment that was predicated, at least in part, on IP protection. Undermining patent protection in climate technologies risks reducing the incentive for the very innovation that the transition demands.

The case for compulsory licensing in climate technologies rests, conversely, on the observation that the market mechanism for incentivising innovation is calibrated to the purchasing power and willingness to pay of wealthy consumers in wealthy countries not to the urgent needs of populations in developing countries who face the most severe climate impacts despite bearing the least historical responsibility for them. The pharmaceutical analogy is instructive but imperfect. Pharmaceutical patents create access barriers to products that are manufactured at relatively low marginal cost the difference between the generic price and the patent-protected price is primarily a function of R&D cost recovery rather than manufacturing complexity. Climate technologies are often capital-intensive and require sophisticated manufacturing capacity that compulsory licensing alone cannot transfer. Granting a compulsory licence to produce a patented solar cell technology does not automatically confer on the licensee the manufacturing know-how, the capital equipment or the supply chain necessary to produce that technology competitively. This distinction between the right to use a patent and the practical ability to do so is a central challenge that the climate compulsory licensing debate has not yet fully addressed.

The Pharmaceutical Analogy – Lessons and Limitations

The Doha Declaration and the subsequent TRIPS Article 31bis amendment which established a mechanism for developing countries without manufacturing capacity to import generic versions of patented medicines compulsorily licensed in third countries are frequently cited as the model that climate technology access should seek to replicate. The analogy has genuine traction. Both pharmaceutical patents and climate technology patents are held predominantly in developed countries. Both create access barriers for developing country populations whose need is urgent and whose capacity to pay patent-protected prices is limited. Both implicate life, health and wellbeing at a scale that arguably triggers the most forceful public interest override available under international IP law.

However, the analogy has its limits. The Doha Declaration was negotiated in a specific political context the HIV/AIDS pandemic, which had produced extraordinary public pressure on the pharmaceutical industry and clear moral consensus around the priority of human life over commercial exclusivity. Climate technology lacks a single, acute, visible crisis event of comparable mobilising force, even though the cumulative harm of climate change is vastly greater. The international climate negotiations have also been characterised by a North-South impasse on burden-sharing that has made it difficult to secure the political agreement necessary to translate the access-to-climate-technology principle into enforceable multilateral obligations. And developed countries particularly the United States and the European Union have strongly resisted the extension of Doha-style flexibility to climate technologies, arguing that weakening patent protection in this sector would reduce investment precisely when innovation is most needed.

Brazil’s Foreign Minister Celso Amorim, as far back as the Bali Climate Conference in December 2007, called for a TRIPS Ministerial Declaration on climate-friendly technologies modelled on the 2001 Declaration on TRIPS and Public Health. That call has not been answered in the nearly two decades since. Whether the political conditions are ripening for such a declaration as climate impacts intensify, as the technology access gap widens and as developing countries grow more assertive in multilateral forums is an open question that will shape the international IP and climate law agenda for the coming decade.

Reform Pathways – What India and the International Community Could Do

Several reform directions have been proposed and deserve serious legal and policy consideration. At the international level, a WTO Ministerial Declaration on TRIPS and Climate Technologies modelled on the Doha Declaration would provide the political clarity that many developing countries argue they need to invoke compulsory licensing for climate purposes without the risk of trade retaliation or diplomatic pressure from patent-holding countries. Such a declaration would not require amendments to the TRIPS Agreement it would simply clarify, as Doha did for pharmaceuticals, that the existing TRIPS flexibilities are fully available for climate technology access. Advocates argue that the legal basis for such a declaration already exists; what is lacking is the political will to adopt it.

At the domestic level, India could clarify its own legal framework by issuing guidance or, more durably, by legislative amendment confirming that climate change and the urgency of deploying clean energy technologies qualify as circumstances of national emergency or extreme urgency for the purposes of Section 92 of the Patents Act, enabling compulsory licences to be issued without the six-month prior negotiation requirement applicable under Section 84. India could also expand the green patent fast-track scheme to incorporate downstream licensing obligations requiring applicants who benefit from expedited examination to commit to licensing their patents on FRAND-like terms to Indian manufacturers for a defined period following grant, as a condition of the expedited processing benefit.

WIPO GREEN the World Intellectual Property Organisation’s platform connecting clean technology solutions with potential users, buyers and licensees represents a voluntary, non-compulsory complement to the compulsory licensing debate. Its Green Inventory and technology matching function facilitate voluntary licensing transactions without engaging the adversarial dynamic of compulsory licensing. India’s participation in and promotion of WIPO GREEN among Indian innovators and technology seekers is a pragmatic parallel track to the more contested reform agenda.

Conclusion

The debate over climate technology patents and compulsory licensing is ultimately a debate about the architecture of global justice in the face of an existential challenge. The patent system, designed to incentivise innovation by granting temporary exclusivity, sits uneasily with the imperative of universal, rapid and equitable access to the technologies on which the habitability of the planet depends. India as the world’s most populous country, among its fastest-growing major economies and among the most climate-vulnerable nations has a direct and urgent stake in how this debate is resolved.

The existing legal framework, at both the domestic level under the Patents Act, 1970 and the international level under TRIPS and the UNFCCC, contains the doctrinal ingredients from which a coherent climate technology compulsory licensing regime could be constructed. Section 84 and Section 92 of the Patents Act provide the statutory authority. The Bayer v. Natco precedent establishes that compulsory licensing is judicially and politically sustainable when the public interest case is compelling. The TRIPS framework read through the Doha Declaration and informed by the Paris Agreement’s technology transfer obligations provides international legal cover for national action.

What has so far been lacking is the political consensus domestically and internationally to translate these legal possibilities into operational reality. As the climate emergency deepens and the technology access gap persists, the pressure to bridge that gap will only intensify. Whether the bridge is built through international declarations, domestic legal reform or the incremental development of voluntary licensing practice, the convergence of IP law and climate law that the debate demands is no longer a speculative future question. It is the defining IP law challenge of the present decade.

References

The Patents Act, 1970 – https://ipindia.gov.in
TRIPS Agreement, WTO – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
WTO – TRIPS and Climate Change – https://www.wto.org/english/tratop_e/trips_e/cchange_e.htm
Doha Declaration on TRIPS and Public Health, 2001 – https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm
Bayer Corporation v. Natco Pharma Ltd., Controller of Patents, 2012; IPAB, 2013 – https://ipindia.gov.in
Ecuador, WTO TRIPS Council Communication – Contribution of IP to Facilitating the Transfer of Environmentally Rational Technology, IP/C/W/585 (2013)
UNFCCC – Article 4.5, Technology Transfer Obligations – https://unfccc.int
The Paris Agreement, 2015, Article 10 – https://unfccc.int/sites/default/files/resource/parisagreement_publication.pdf
SpicyIP – Green Patents and Climate Governance: What India Can Learn from Global Leaders in Climate-Tech IP (2026) – https://spicyip.com/2026/03/green-patents-and-climate-governance-what-india-can-learn-from-global-leaders-in-climate-tech-ip.html
Khurana and Khurana IP Climate Check: The Rise of Green Patents in India – https://www.khuranaandkhurana.com/ip-climate-check-the-rise-of-green-patents-in-india
South Centre Climate Change, Technology and Intellectual Property Rights – https://www.southcentre.int/wp-content/uploads/2013/05/RP45_Climate-Change-Technology-and-IP_EN.pdf
WIPO Fast Tracking Green Patent Applications – https://www.wipo.int/web/wipo-magazine/articles/fast-tracking-green-patent-applications-38465
WIPO GREEN – https://www.wipo.int/green/en
Intepat Compulsory Licensing for Climate Technologies: A Path to Accessibility and Innovation – https://www.intepat.com/blog/compulsory-licensing-for-climate-technologies-a-path-to-accessibility-and-innovation/
Patents (Amendment) Rules, 2020 Rule 24 – https://ipindia.gov.in

Climate Technology Patents and Compulsory Licensing – The Emerging Debate

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Climate Technology Patents and Compulsory Licensing – The Emerging Debate

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