Intellectual Property and Biofuels: The Energy Crisis, Food Security, and Climate Change

• Published date: 01 November 2015
• DOI: http://doi.org/10.1111/jwip.12043
• Author: Doris Spielthenner,George Mokdsi,Mike Lloyd,Matthew Rimmer,Ewan Driver
• Date: 01 November 2015

Intellectual Property and Biofuels: The Energy

Crisis, Food Security, and Climate Change

Matthew Rimmer

Queensland University of Technology (QUT)

Mike Lloyd

Griff‌ith Hack Group

George Mokdsi

Griff‌ith Hack Group

Doris Spielthenner

Ambercite

Ewan Driver

Griff‌ith Hack Group

In light of larger public policy debates over intellectual property and climate change, this article considers patent

practice, law, and policy in respect of biofuels. This debate has signif‌icant implications for public policy discussions in

respect of energy independence, food security, and climate change. The f‌irst section of the paper provides a network

analysis of patents in respect of biofuels across the three generations. It provides empirical research in respect of patent

subject matter, ownership, and strategy in respect of biofuels. The second section provides a case study of signif‌icant

patent litigation over biofuels. There is an examination of the biofuels patent litigation between the Danish company

Novozymes, and Danisco and DuPont. The third section examines f‌lexibilities in respect of patent law and clean

technologies in the context of the case study of biofuels. In particular, it explores the debate over substantive doctrinal

matters in respect of biofuels –such as patentable subject matter, technology transfer, patent pools, compulsory

licensing, and disclosure requirements. The conclusion explores the relevance of the debate over patent law and

biofuels to the larger public policy discussions over energy independence, food security, and climate change.

Keywords patent law; biofuels; energy; food security; clean technologies; climate change

Biofuels have a long and rich pre-history. At the World’s Fair in 1900, Rudolf Diesel –the inventor and

patent holder - and the Otto car company exhibited a diesel engine, which ran on peanut oil (Tomes et al.,

2011, p. 5). Recognising the value of food crops for fuel, Diesel observed that “power can... be produced

from the heat of the sun, which is always available for agricultural purposes, even when all natural stores of

solid and liquid fuels are exhausted”(Goodall, 2009, p. 166). Similarly, the car manufacturer, Henry Ford,

observed in 1925: “The fuel of the future is going to come from fruit like that sumach [a type of tree] out by

the road, or from apples, weeds, sawdust –almost anything”(Goodall, 2009, p. 166). He rhapsodized:

“There is fuel in every bit of vegetable matter that can be fermented.”(Goodall, 2009, p. 166).

In his leading work, Biofuels and the Globalization of Risk, James Smith provides a def‌inition and

classif‌ication of modern “biofuels”:

Biofuel refers to energy derived from biomass through processes such as combustion,

gasif‌ication or fermentation. These processes yield energy in the form of liquid or gas fuels. A

range of biological sources can act as feedstock for these processes, including dedicated

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The Journal of World Intellectual Property (2015) Vol. 18, no. 6, pp. 271–297

doi: 10.1111/jwip.12043

energy crops (such as grasses and trees), traditional crops (sugar cane and oilseed) as well as

crop residues and degradable waste (for example, wheat straw, rice hulls, and organic waste).

The resulting fuel can be used in cooking, heating, electricity generation and transport (Smith,

2010, p. 15).

Biofuels are def‌ined in terms of various generations. Smith thus observed that f‌irst-generation biofuels

“rely on food crops that boast readily accessible sugars, starches and oils as their feedstock”(Smith, 2010,

p. 15). He noted: “The most common feedstocks are sugar cane... sugar beet, maize, wheat and other

starchy cereals, such as barley, sorghum and rye”(Smith, 2010, p. 19). Smith def‌ined second-generation

biofuels as those which “rely on bio-chemical and thermochemical conversion”(Smith, 2010, p. 19).

Second-generation biofuels rely on feedstocks –such as “perennial grasses such as switchgrass, trees such

as poplar or willow and residues and wastes derived from agricultural production”(Smith, 2010, p. 20).

Moreover, Smith noted that “third-generation biofuels focus on improving the feedstock”(Smith, 2010,

p. 21). The third generation of biofuels has used algae, microalgae, and seaweed. There has been a

discussion of whether there exists a fourth generation of biofuels focused upon biotechnology. James

Smith observed: “Even more theoretically, fourth-generation technologies hypothetically offer entirely

custom-made feedstocks and microbes to process fuel”(Smith, 2010, p. 21).

There has been much public and private investment in the various generations of biofuels. James

Smith observed: “Over the last decade, increasing awareness of the impacts of climate change and

dwindling supplies of fossil fuels can be seen to have generated investment in f‌ields such as biofuels,

climate-ready crops and storage of agricultural genetic resources”. In the United States, President Barack

Obama has emphasized that biofuels are part of his energy independence policy: “Biofuels are an

important part of reducing America’s dependence on foreign oil and creating jobs here at home”(The

White House, 2011). There has also been much interest in the use of biofuels in Canada (de Beer, 2011),

and South American countries, such as Brazil (La Rovere et al., 2011). In the Garnaut Review 2011, Ross

Garnaut argued that “Australia has an important role to play in research and development on biofuels”

(Garnaut, 2011, p. 125). In 2011, the Gillard Government established the $20 million Australian Biofuels

Research Institute (Ferguson, 2011). The Institute’s work is designed to provide “support for the potential

of next-generation biofuels to increase Australia’s energy security and diversify sources of liquid fuel

supply”(Ferguson, 2011). In the European Union, the European Commission has established a directive to

promote the use of biofuels and other renewable fuels for transportation (European Commission, 2013).

There has also been interest in biofuels in Africa (Juma, 2011; Matondi et al., 2011). The Roundtable on

Sustainable Biomaterials has sought to develop a global standard and certif‌ication scheme for the

sustainable production of biomass and biofuels.

Achim Steiner, Executive Dir ector of the United Nations Envi ronment Programme, observ ed in

2009: “Biofuels are neither a panacea nor a pariah but lik e all technologies they rep resent both

opportunities and challenge s”(United Nations Environ ment Programme, 2009). The Nu ff‌ield Council

on Bioethics ref‌lected that biof uels have become part of a large r policy debate over the energy cr isis,

food security, biodiversit y, and climate change. The Counc il observed that the hope was that bi ofuels

would provide “a new source o f income for farmers and rev enue from ‘clean’technolo gy, as well as

renewable –and therefore endless –sources of fuel, leading to far les s greenhouse gas (GHG) emissions

than fossil fuels”(Nuff‌ield Council on B ioethics, 2011, xvii). The C ouncil noted that investment in

biofuels had been encourage d by “increasing worries over en ergy security in the face of grow ing

demand, dwindling supplie s of oil, and international con f‌licts and wars”(Nuff‌ield Council on

Bioethics, 2011, xvii). Mor eover, “the growing awareness of th e dangers of global climate change

reinforced the challenge to f‌ind alt ernatives to fossil fuels as th e dominant form of energy”(Nuff‌ield

Council on Bioethics, 2011, xv ii).

Matthew Rimmer et al. Intellectual Property and Biofuels

©2015 John Wiley & Sons Ltd

272 The Journal of World Intellectual Property (2015) Vol. 18, no. 6