Has China Established a Green Patent System? Implementation of Green Principles in Patent Law

Abstract

The goal of high-quality economic development proposed by China has defined the sustainable development concepts of innovation, coordination, green, openness and sharing. Changes in economic development strategies affect corresponding changes in the legal system. The green patent system has an important impact on sustainable development. This paper looks for evidence at the system level from the three aspects of patent application protection, patent licensing and patent infringement relief, and proves the penetration of the green principle in the patent system, which is mainly reflected in the following points: (1) in terms of patent application, concrete public interest clauses, exclusion of non-green technologies from patentable objects, and open green channels for green technology patent applications to speed up examination; (2) in terms of patent licensing, exploration of the application of compulsory patent licensing to green patents for environmental protection, and improvement of patent open licensing to encourage the open sharing of green patents; (3) in terms of patent infringement remedies, the introduction of the green principle at an appropriate time to limit the right to stop infringement claims, and the application of punitive damages for intentional infringement and serious damage to the ecological environment. The conclusion is that China is currently working to establish a green patent framework, but the specific details have yet to be perfected, and the impact of legislative changes on green technology development remains to be seen. The above steps have gradually established the preliminary structure of green patents.

1. Introduction

The green patent system is a series of systems designed to provide patent application, licensing and protection for environmentally friendly or environmentally sustainable technologies, the core of which is to integrate green principles into the patent legal system. Green development is a mode of economic growth and social development aiming at efficiency, harmony and sustainability. As early as 2017, the Chinese government proposed a new development concept of innovation, coordination, greenness, openness and sharing. The 19th National Congress of the Communist Party of China put forward the expression “high-quality development” [1] for the first time, indicating that the Chinese economy has shifted from the high-speed growth stage to the high-quality development stage. “Establishing and improving an economic system for green, low-carbon and circular development” proposed in the report of the 19th National Congress of the Communist Party of China. The patent system developed in industrial civilization can encourage invention and creation, and promote social development. To provide exclusive patent rights for green technology, it helps to protect green technology and bring research and development returns to rights holders. A fast and convenient review channel is conducive to promoting the speed of research and development of green technologies, and providing patent licenses for green technologies is conducive to the transformation and utilization of green technologies. In addition, the incorporation of the green principle in the legal responsibility for patent infringement represents the penetration of the concept of sustainable development in the legal field. There is no doubt that the green patent system is a response to China’s green development goals and is of great significance to the realization of China’s high-quality development. The discussion of building a green patent system has not stopped in recent years, and the high-profile policy calls have also triggered corresponding fluctuations in the patent legal system. However, the data related to green patents have not changed significantly in recent years [2]. GDP accounts for 16% of the global total, and the consumption of various resources ranks first in the world. The consumption of energy, iron ore and bauxite accounts for 49%, 53% and 56% of the world, respectively [3]. So, has China established a green patent system? At what stage is China’s current green patent system construction? Based on these questions, this research mainly focuses on three main aspects.

• To examine the tendency to protect green technology from the aspect of patent application;
• To examine the impact on the promotion of green technology from the perspective of patent licensing;
• To examine the implementation of the green principle in the patent infringement liability.

The past literature provides the theoretical and practical basis for this research. However, the literature still has the following shortcomings: (1) the construction of the green patent system is too abstract, and many remain in the appeal stage; (2) the specific content of the green patent is relatively singular, and most scholars only discuss the patent accelerated examination system; they seldom touch on the content of licensing and infringement liability. The paper makes several contributions to the existing literature: (1) This is the first systematic demonstration of the green patent system, whether in terms of research breadth or depth. (2) The research conclusions are clearer and more scientific, which, in the conclusion of the study, provides more objectivity in confirming the current development status of green patents in China.

The results of this paper may be helpful in order to provide suggestions for the Chinese government and policy makers to build a sound green patent system, help other countries to fully understand China’s efforts to build a green patent system and the status quo, and may guide the behavior of enterprises and guide them to actively apply for green technology, actively seek green technology licensing and, at the same time, regulate their own behavior, and not violate the green principle of environmental protection.

The paper is structured as follows—Section 2 contains the literature review, and Section 3 describes the materials and methods used for the study. Section 4 analyze and verify the hypothesis of this paper from the system level, followed by the discussion and conclusions in Section 5 of the study.

2. Literature Review and Hypothesis Development

Past research helps to identify the research questions and goals of this paper. The literature provides a discussion on whether a green patent system should be established, a review of an accelerated patent examination system, and an assumption about the application of compulsory patent licensing in the promotion of green technologies.

2.1. Imagination of the Green Patent System

Green development requires the innovative development of green technologies. Some scholars have proposed that a special patent system to deal with climate change is needed in the face of climate change [4]. At the same time, many scholars have recognized the difficulties faced by building a green patent system [5,6]; most of them just put forward the imagination and design of the construction of the green patent system [7,8], and suggestions on the content of the green patent system [9,10].

Based on the above literature, we can hypothesize that:

Hypothesis 1.

It is necessary to establish a green patent system.

2.2. Research on Accelerated Examination of Green Patents

The demand for green technology is increasingly urgent, and the examination of green patents and the rapid examination system are topics that scholars are keen to study. Some scholars believe that the accelerated examination of green patents is justified [11]. Appropriate examination standards should be established for green patents [12]. Scholars generally believe that speeding up the review system is conducive to faster and better promotion and application of “green technology” [13,14], and the focus is on a comparative study of foreign accelerated examination systems [15,16], and then to give advice to China’s accelerated examination system of green patent [17].

Based on the above literature, we can hypothesize that:

Hypothesis 2.

Accelerated examination of green technology can promote green technology patent application.

2.3. Promotion of Green Patent Technology

After obtaining a patent, green technology needs to be promoted and applied as soon as possible. Many scholars have put their eyes on the compulsory patent licensing system and proposed to use compulsory patent licensing to promote the application of green patents [18,19]. In addition, some scholars focus on the sharing mechanism for green patents [20,21], discussing the feasibility of an open licensing system [22,23].

Based on the above literature, we can hypothesize that:

Hypothesis 3(a).

A compulsory licensing system is conducive to the promotion of green patent technology.

Hypothesis 3(b).

The open licensing system is conducive to the promotion of green patent technology.

3. Method Used and Materials

Section 3.1 explains the methodology adopted to achieve the study’s objectives. Section 3.2 explains the main documentation used in the study.

3.1. Research Methodology

This paper mainly conducts speculative research or theoretical research. It mainly involves discussion in a legal and theoretical sense, and the research method is mainly qualitative, and uses literature research methods, historical research methods and comparative research methods to specifically analyze the proposed research questions. The research methodology of this paper is shown in Figure 1.

Firstly, this paper mainly adopts the literature research method by collecting, identifying, and organizing documents, to form a scientific understanding of the facts through the study of documents. The range of literature includes papers, reports, legal norms, policy documents and judicial precedents related to the implementation of the green principles. Through analysis of the literature, we can fully understand the current status of the green patent system in China.

Secondly, this paper adopts the method of historical research to understand the historical development of green principles through historical data. From the analysis of historical changes in legal texts, we can espy China’s efforts to build a green patent system. The purpose of historical research is to understand the current state of institutions and their evolutionary trends, and not to analyze the current status of the green patent system out of context, but to systematically study its development and changes, so as to speculate on the future changes of the system.

Thirdly, this paper adopts the comparative research method in some parts, and finds the advantages and disadvantages of China’s green patent system by comparing the differences in the system of green patent application examination in some other countries and China.

3.2. Materials

The literature collected in this paper is mainly divided into three categories.

Table 1. Referenced document types.

Materials Type	Documents	Source
Policy documents	2021 Statistical Bulletin of National Economic and Social Development; National Economic and Technological Development Zone Green Development Report 2021;	China Government Network
Legal norms	Civil law Patent law Judicial interpretation Departmental rules	China Government Network
Judicial case	Cases of searching with “green principles” as a keyword	China Judgment Document Network

shows the three types of materials in this article: policy documents, legal norms and judicial cases.

4. Analysis and Discussion

This section elaborates on the findings as stated in the research methodology adopted for the study (Section 3.1): firstly, to verify the need for green development in the field of patents (Section 4.1); secondly, to verify that in the field of patent applications, the green principle can be embodied through the patent object exception system and the patent application accelerated examination system (Section 4.2); thirdly, to verify the current licensing system’s impact on the promotion of green technologies (Section 4.3); and finally, to verify that it is feasible to introduce green principles in the assumption of patent infringement liability (Section 4.4). The above three main aspects (Section 4.2, Section 4.3 and Section 4.4) of the patent system are to examine the implementation of the green principle in the patent system, that is, whether a green patent system has been established.

4.1. Necessary to Establish a Green Patent System

Firstly, high-quality economic development calls for green principle in the legal area. Guided by the goal of high-quality development, China’s ecological and environmental protection has achieved new results. According to the “2021 Statistical Bulletin of National Economic and Social Development” released by the National Bureau of Statistics of China on 28 February 2022, China’s domestic GDP growth rate in 2021 was 8.1%, and energy consumption per unit of GDP decreased by 2.7% year-on-year, but there is still a gap with the 3% target proposed in the 2021 government work report [24]. In the past two years, various ministries and commissions have issued a number of policy documents on how to achieve green development. According to statistics from the National Economic and Technological Development Zone Green Development Report 2021, there are a total of 56 policies issued by different ministries in 2020 and 2021. Among them, the legal policy documents are mainly reflected in the following two (see

Table 2. Legal policy documents on green development.

Documents	Contents	Issued	Time
Opinions on Accelerating the Establishment of a Green Production and Consumption Regulation and Policy System	Requiring the establishment of regulation and policy system on a green production and consumption,	National Development and Reform Commission and the Ministry of Justice.	March 2020
Notice on Organizing the Recommendation of Green Technology	Requiring accelerated promotion and application of advanced green technology, and requiring all units to recommend green technology.	National Development and Reform Commission and other three departments.	June 2020

). The green development goal calls for the support of the legal system.

Secondly, the application of green principles in the field of civil law is gradually maturing. The green principle, also known as the ecological principle, refers to the basic principle that civil law requires civil subjects to save resources, protect the ecological environment, achieve a balance between people and resources and promote harmonious coexistence between people and the environment when engaging in civil activities [25]. On May 28, 2020, China promulgated the Civil Code of the People’s Republic of China, which came into force on 1 January 2021. The Civil Code has introduced the green principle, which is embodied in both legal norms and judicial trials. By sorting out the legal provisions of the Civil Code, it can be found that the following provisions of the Civil Code represent the implementation of the green principle (see

Table 3. Legal provisions of green principles in the Civil Code.

Article 9	Civil subjects engaged in civil activities shall be conducive to saving resources and protecting the ecological environment.
Article 286 (1)	The owner shall abide by the laws, regulations and management regulations, and the relevant behavior shall meet the requirements of saving resources and protecting the ecological environment.
Article 326	Usufruct holders, exercising their rights, shall abide by the provisions of the law on the protection and rational development and utilization of resources and the protection of the ecological environment.
Article 346	The establishment of construction land use rights shall meet the requirements of saving resources and protecting the ecological environment, abide by the provisions of laws and administrative regulations on land use, and shall not damage the usufruct rights that have been established.
Article 509 (3)	In the process of performing the contract, the parties shall avoid wasting resources, polluting the environment and destroying the ecology.
Article 558	After the creditor’s rights and debts are terminated, the parties shall follow the principles of good faith, and perform obligations such as notification, assistance, confidentiality, and recycling of old items according to their trading habits.
Chapter 7	(Articles 1229–1235) of Title VII (Tort Liability) Lability for environmental pollution and ecological damage.

). This is the first time that China’s civil law has stipulated the green principle and made it one of the basic principles of civil law.

By sorting out judicial cases, it can be found that many cases take green environmental protection factors into consideration in judgments. From the existing judgment documents, it can be seen that the court’s application of the green principle mainly involves the following areas: (1) Contract field, which takes the green principle as the grounds for judging that the contract is invalid or to prevent the contract from continuing to perform in accordance with the green principle. For example, in the case of Songyuan Shengshi Automobile Sales and Service Co., Ltd. (Songyuan, China) v. Suizhou Xinwei Automobile Trading Co., Ltd. (Suizhou, China), the plaintiff company requested the defendant to return the double deposit on the grounds that the defendant company had breached the contract. The court ruled that the diesel vehicle involved did not meet the emission standards, and the vehicle sales contract signed by the plaintiff and the defendant did not comply with the provisions of Article 52 of the Contract Law, and at the same time violated the green principle in the Air Pollution Prevention and Control Law and the Civil Law, and the contract was finally determined to be invalid [26]. In another case, involving a dispute over a power supply contract, the defendant stopped the power supply to the plaintiff’s pig farm in response to the government’s notice on pollution control, and the plaintiff asked to continue the power supply. On the basis of the green principle, the court held that the plaintiff’s pig farm had caused a certain degree of environmental pollution, and the defendant’s power outage according to the government’s notice was justified, and thus rejected the plaintiff’s request to restore the power supply [27]. (2) Real right field, which defines the right to use. For example, in the case of Liu Li v. Shanghai Jing’an District Yijingyuan owners’ meeting, the plaintiff installed clean energy vehicle charging piles in the underground garage of the community, and the defendant believed that the plaintiff’s behavior would bring inconvenience to management and potential safety hazards. On the focal issue of whether community owners have the right to install car charging piles in private parking spaces without permission, the court’s conclusion is that providing convenience for new energy vehicles can promote resource conservation and promote ecological protection [28]. (3) Tort liability field, which applies the green principle to mitigate the tort liability. For example, in a case of disputes over compensation for young crops, the court held that although the fact that the plaintiff planted trees on the forest land involved without the permission of the defendant constituted infringement, the plaintiff’s planting behavior objectively complied with the green principle. In the end, it was ruled that the compensation for young crops should be distributed according to the ratio of 40% and 60%, respectively, for the plaintiff and the defendant [29].

When any civil subject engages in civil activities and exercises civil rights, they must take the basic spirit of protecting the ecological environment and saving resources as the basic principles that run through the legal system of property rights, creditor’s rights, intellectual property rights, marriage and family, inheritance and tort liability. Civil subjects should give full play to the effectiveness of things when exercising property rights such as intellectual property rights, prevent and avoid the abuse of resources and make limited resources more fully utilized within a certain range to maximize benefits.

Finally, the Patent Law should implement the green principle. On the one hand, the Patent Law, as a part of civil law, should abide by the civil code and implement the green principle; on the other hand, it is the call of reality. On 26 April 2009, Director General Francis Gurry of the World Intellectual Property Organization (WIPO) pointed out in his speech on World Intellectual Property Day, “WIPO will focus on promoting the establishment of a balanced intellectual property system, helps create, disseminate and utilize clean technologies; helps promote green design, which aims to ensure that the products created are ecologically sound throughout their life cycle. Human creative genius is our greatest hope for restoring the fragile balance between humanity and the environment in which we live, and our greatest asset in our quest to find a solution to this global challenge. It can move us from the carbon-based grey technologies of the past to the carbon-neutral green innovation of the future” [30]. The theme for World IP Day 2020 is “Innovate for a Green Future”. WIPO points out that “to explore how a balanced and robust IP system can support the emergence of a green economy that works with and not against the earth’s life-support system, to explore how the patent system fosters innovation and the development and diffusion of eco-friendly technologies that enable us tackle the climate crisis and build a green future” [31]. Intellectual property rights provide an important guarantee for green innovation and sustainable development. The main manifestations of green principles in the patent system are the patent application protection of green technology, the patent licensing and promotion and utilization of green technology and the green principle in patent infringement remedy.

4.2. Green Principles in Patent Rights Acquisition

The acquisition of patent rights mainly refers to applying for a patent for a green technology and passing the patent examination. Firstly, non-green patent applications can be restricted through the patent object exception system (Section 4.2.1); secondly, accelerating the examination of green technology patent applications has little effect on promote the development of green patents (Section 4.2.2).

4.2.1. Theoretically Object Exception System Can Restrict Non-Green Technologies

Firstly, to define the green technology, this study mainly refers to two documents for reference to determine non-green technology.

Table 4. Definitions of green technologies.

Document	Content
Chapter 34 of Agenda 21 [32]	Environmentally sound technologies protect the environment, are less polluting, use all resources in a more sustainable manner, recycle more of their wastes and products and handle residual wastes in a more acceptable manner than the technologies for which they were substitutes. Green technology can be called environmentally friendly technology, clean technology, environmental technology or environmentally sustainable technology. The purpose of green technology is to protect the natural environment and resources, relieve the adverse effects of human beings on the environment, in order to “escort” the sustainable development of the environment.
Guiding Opinions on Building a Market-Oriented Green Technology Innovation System [33]	Green technology refers to reducing consumption, reducing pollution, improving ecology, promoting the construction of ecological civilization and realizing a harmonious symbiosis of emerging technologies, mainly including resource-saving technologies and environmental protection technologies.

shows the contents of the two documents.

Secondly, the patent object exception system is used to exclude the non-green technologies. The patent system is a choice of national legislative policies. When considering which matters can be granted patent protection and which are not granted patent protection, the state will determine according to its own development needs. With the evolution of technology and society, the ecological crisis has emerged, and the global climate problem has become increasingly intensified. The patent system, which aimed to stimulate technological innovation, should also be updated and adjusted. Those non-sustainable and environmentally unfriendly technologies are not allowed to apply for patents. The legal basis for excluding non-green technologies from patent applications comes from the TRIPS Agreement and Article 5 of the Chinese Patent Law (see

Table 5. The legal basis of the patent object exclusion system.

Document	Content
Article 27 (2) of the TRIPs Agreement	Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
Article 5 of China’s Patent Law	No patent right shall be granted for inventions—creations that violate laws, social morals or impair public interests. Non-green technologies are not conducive to environmental protection, and are not conducive to public interests.

).

According to the above literature analysis, the non-green technology should be excluded from the scope of patent objects because of being detrimental to public interests. In addition to preventing non-green technology from applying for patents, the object exception system also plays a role in the patent invalidation system. That is, when a non-green technology is granted a patent right and announced, the patent administrative authority or judicial authority can re-examine the validity of the patent through the patent invalidation procedure according to the patent right exception system. Invalid systems can make up for flaws in the authorization process. However, some scholars worry that this makes the Patent Law assume too many social or regulatory functions. They think that the exclusion of patent objects must be based on the specific basis in the Patent Law. The public interest clause is a bottom-line basis, and the patent administrative authority should avoid abuse of the general clause [34]. Object exclusion does require more specific reasons. China’s patent examination guidelines specify situations that are not conducive to public interests. There is currently no data on which patent non-green technology applications have been rejected for being against the public interest, but theoretically the object exception system can be used to exclude non-green technologies by optimizing the provisions of the patent examination guidelines.

4.2.2. Accelerated Examination Has Little Effect on Promoting Green Patent Applications

What method should the Patent Law take to promote and protect green innovation? Is it a negative way, that is, that any invention that pollutes the environment shall not be granted a patent; or an affirmative way, that is, that inventions that can highlight the environment friendly features compared with similar related inventions should be granted priority for patents? In fact, both aspects should be paid attention to. Since the green principle cannot be abused as a content of public interest, it is more important to encourage more environmentally friendly inventions to be patented.

From

Table 6. Green channel for green patent technology in different countries.

UK [35]	A “green channel” (introduced in 2009) allows applicants to request accelerated processing if the invention has environmental benefits. The application must demonstrate how the invention is environmentally friendly and which actions the applicant wishes to expedite (search, examination and/or publication),	To 2020, more than 2200 published patents have used the “green channel”, and the time from filing to grant of rights is approximately 11 months.
US	Green Technology Pilot Program” [36] in 2009. Patent applicants can take advantage of the Priority Examination Program or the Accelerated Examination Program	It sets a goal of completing final processing within 12 months of initiating the advancement process, and it ended after received 3500 eligible applications.
Japan [37]	Guidelines for Green Patent Issues. As long as it falls within the requirements of climate-friendly technology after review by a special examiner, it can enter the fast-track review channel. If it is not a climate-friendly technology after review, the chief reviewer will notify the applicant, reject the application for the fast-track review procedure, explain the reasons, and recommend entering the ordinary review channel	Once in the fast-track review, review report can be published within three months from the date of application
China	(1) Administrative Measures for Priority Examination of Patents 2017 (SIPO) Article 3 stipulates that a patent application or a patent reexamination case under any of the following circumstances may request a priority examination: it involves energy conservation and environmental protection, a new generation of information technology, biology, high-end equipment manufacturing, new energy, new materials, new energy vehicles, intelligent manufacturing and other key national development industries	Get an examination opinion on whether to agree to carry out priority examination in 3 to 5 working days from the date of receiving the request for priority examination. For applications or cases that the SIPO agrees to carry out priority examination, from the date of agreeing, the first notice of examination opinion for invention patent applications shall be issued within 45 days and the case shall be closed within one year; utility model and design patent applications should be closed within 1 month; patent reexamination cases should be closed within 7 months; invention and utility model patent invalidation cases should be closed within 5 months; and design patent invalidation cases should be closed within 4 months [38].
	(2) A rapid pre-examination system, Local intellectual property service centers provide rapid pre-examination services. Locally registered enterprises can apply for patent rapid pre-examination services in technical fields that are conducive to the development of local industries (generally new technology areas, including green technologies), The SIPO will speed up the examination of patent applications that have passed the pre-examination of the protection center. Inventors can obtain patents faster.

, it can be found that different countries have different regulations on the priority examination of green patents.

The establishment of the rapid examination procedure for green invention patents has greatly shortened the examination cycle of green patent applications (see

Table 7. Comparison of patent grant examination time.

Patent Type	General Application Channel	Priority Application Channel	Fast Pre-Qualification Service
Invention	22–36 months	7–12 months	3–6 months
Utility model	7–8 months	2 months	1–2 months
Design	3–6 months	1 month	5–6 working day

), promoted the development of the green industry, and clarified the patentability and scope of protection of such inventions. Green inventors or patent applicants, as well as their competitors and the general public benefit from this [39].

According to the “United Nations Framework Convention on Climate Change” (UNFCCC), WIPO released the IPC green inventory in 2010, which established seven sub-categories of green patents: alternative energy production, transportation, energy conservation, waste management, agriculture and forestry, administrative regulatory and design, and nuclear energy. Figure 2 [40] shows the number of green patent applications in China from 2010 to 2021. It can be seen that the number of green patent applications is increasing every year, but in terms of the growth rate, it is impossible to see a positive influence in the number of green patents after the accelerated examination rule issued in 2017. This data result is not as optimistic as the scholars imagined in the previous research, because theoretically, accelerating the examination will promote green patent applications, but if there is no breakthrough in the level of green technology innovation, the speed of patent application will not change greatly. Patent applications are closely related to the level of green technology innovation.

4.3. Theoretically Special Licensing Can Promote the Use of Green Patents

The special license here mainly refers to the compulsory license and the open license system. In theory, compulsory licensing and open licensing can promote the promotion of green technology, but China has never had a precedent for compulsory licensing. Whether green technology can be applied to compulsory licensing is still under theoretical discussion (Section 4.3.1). Open licensing is a viable suggestion, but the open licensing system is still in a pilot state in China (Section 4.3.2).

Firstly, let us analyze the theoretical basis for promoting the utilization of green patents. The UK Professor Garrett Hardin once put forward the famous “The tragedy of the commons” theory in Science magazine [41]. Its main meaning is that as a public resource or property, each of us can use it for free, but cannot prevent others from using it. However, everyone wants to profit or use more from this big cake to maximize their own interests, leading to the depletion of resources. Each of us understands that overuse of resources will lead to exhaustion, yet we are indifferent to preventing the state of exhaustion. What is more, some people have a mentality of “getting it in time”, which has accelerated the depletion of resources and the deterioration of the environment, so it becomes a tragedy. The fundamental reason is that the ownership of public goods cannot be determined, which leads to the excessive use or occupation of public goods. American professor Michael A. Heller put forward the theory of “tragedy of the anti-commons” on the basis of Professor Harding’s point of view. He believes that although the “tragedy of the commons” illustrates the consequences of overuse of public resources, Professor Harding ignores the fact that resources may be underused, and rights holders prevent others from using the resources, so that it may create a vicious circle in which no one can use it, resulting in idle and underutilized resources, resulting in waste [42]. According to Professor Heller’s “tragedy of the Anti-commons”, if the public commons that should be owned by the public cannot be fully utilized because they are privately owned, this will actually affect social interests and cause losses. If intellectual property rights limit green patent technology too much, it will cause some excellent green technology resources to be underutilized or to be idle and wasted, which may become an obstacle to the innovation and dissemination of climate change technology. Therefore, it is necessary to set up some systems to promote the application of green technologies, among which the patent compulsory license system and the patent open sharing system are the most discussed.

4.3.1. Theoretically Compulsory Patent Licensing Can Promote Green Patent Licensing

The patent system can promote the investment of developers in green technologies, grant the owners of green technologies exclusive patent rights, and bring them R&D returns. The principle of “exchanging disclosure for protection” in the patent system can help the public to know the existing green technologies, so as to further develop more advanced technologies. The truth is, however, that real-life demand for existing green technologies is very strong. The exclusivity of the patent system and the imperfect licensing mechanism will undoubtedly hinder the promotion and application of green technologies. In order to effectively improve the promotion and transfer of green technologies, certain voluntary compliance mechanisms and mandatory compliance mechanisms should be established. Under such a system, green patent holders can not only obtain R&D returns, but also effectively promote the application of green technologies. Matthew Rimmer described the historical background of intellectual property issues under climate change, and analyzed current patent policies and management methods in various regions, proposing that governments should consider reforms related to technology transfer, patent pools, exclusion of patent subject matter and compulsory licensing… [43]. Compulsory patent licensing is considered to be one of the ways to promote the green patent system. Compulsory patent license refers to the system in which the patent authority compels the patentee to license others to implement the patent according to the law.

Article 31 (2) of the TRIPS Agreement stipulates the relevant content of compulsory patent licensing, which states that “when the country is in a state of emergency or other extreme urgency, or for public non-commercial purposes, it may be used without the authorization of the right holder to license the use of its patents”. This article provides that in cases of emergency or in the public interest, the patents may be used without the authorization of the patent holder. However, as to whether green technologies can be compulsory licenses, no agreement has been reached internationally. In 2009, the United Nations Conference on Trade and Development (UNCTAD) released the Trade Development Report 2009, which mentioned that climate change mitigation will benefit all mankind, so the flexibilities in the TRIPS agreement can be used to relax patent protection, such as allowing implement compulsory licensing for the production of climate-friendly equipment and products and related processes [44], but in the international coordination of green patents, the issue of compulsory licensing is the most divergent. On the one hand, regarding the patent system and environmental protection system, there are differences not only between developed and developing countries, but also between developed countries such as the United States and Europe, and between developing countries such as China and India. Countries do not agree on the issue of green patents. On the patent issue, developed countries have strong innovation ability, large domestic market and large demand for new products, and tend to have stronger intellectual property protection; developing countries have weak innovation ability and limited market, and tend to weaker intellectual property protection and get global products at cheaper prices. On the issue of environmental protection, developing countries generally believe that most of the current greenhouse gas is the price of the economic development of developed countries in the past two hundred years. It is legitimate for developing countries to pursue economic development and poverty alleviation, and the reduction in emissions should not sacrifice their development. However, developed countries generally believe that the goal of transferring green technology to developing countries is to achieve rapid and extensive dissemination of their technologies and maintain their vested interests in technological competitive advantages, and they are relatively indifferent to the economic development demands of developing countries. On the other hand, with regard to the relevant system of green patents, in the United Nations Climate Change Conference, developing countries such as India and China advocated that the provisions on compulsory licensing in TRIPs should be applied to the field of green technology. The United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), the World Intellectual Property Organization (WIPO) and other international organizations also expressed their support. However, developed countries such as the United States and international organizations such as the International Chamber of Commerce (ICC) have strongly opposed this.

In The United Nations Framework Convention on Climate Change signed by the United Nations General Assembly in 1992, according to the principle of “common but differentiated responsibilities”, the obligations and procedures for fulfilling the obligations stipulated by the convention on developed countries and developing countries are different, and the developed country parties and other developed parties shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other parties, particularly developing country parties, to enable them to implement the provisions of the convention. In this process, the developed country parties shall support the development and enhancement of endogenous capacities and technologies of developing country parties. Other parties and organizations in a position to do so may also assist in facilitating the transfer of such technologies [45]. The convention establishes a mechanism to provide developing countries with funding and technology to enable them to meet their obligations under the convention. The technology transfer implementation mechanisms required here include mandatory compliance mechanisms and voluntary compliance mechanisms. The compulsory performance mechanism includes the patent compulsory licensing system.

Articles 53 to 63 of the Chinese Patent Law provide for the compulsory licensing system. According to Article 53 and Article 54, if the patentee fails to implement or fully implement his patent without justifiable reasons for three years from the date of granting the patent right and four years from the date of filing the patent application, and or in the event of a state of emergency or extraordinary situation in the country, or for the purpose of public interests, the patent administration department under the State Council may grant a compulsory license to implement an invention patent or utility model patent based on the application of an entity or individual that has the conditions for implementation. Therefore, when the green technology owner does not implement the patent or does not fully implement the patent, or when a green patent must be used for the consideration of public interests, qualified units and individuals can apply for a compulsory license of the green patent. The Patent Law provides a legal basis for the compulsory license of green patents, but in practice, China has never issued a compulsory license for any patent, and there are always different opinions on the substantive or procedural conditions of the compulsory license.

In general, the ultimate purpose of incorporating green” technology into the compulsory licensing system is to improve the promotion of green technology. At the same time, compulsory licensing can prevent traditional enterprises from monopolizing the market through green patents. For example, some traditional high-carbon enterprises currently have low-carbon patented technology, and their main purpose of applying for environmental protection technology is as an alternative to the technical route, and even to inhibit the development of emerging low-carbon industries. Therefore, it is not enough for emerging low-carbon enterprises to rely solely on their own strength; they need to rely on relevant systems such as the compulsory patent licensing system and the anti-monopoly system to solve their problems.

4.3.2. Patent Open Licensing

Open license is conducive to the promotion of green patents. Sharing green patented technologies is a way to protect the environment and address various climate challenges and threats on our planet. Using patents for free or at a low price to promote the research and development of new green technologies is a beneficial attempt to promote the international transfer of green patented technologies [46]. Green patent sharing means that private enterprises as patent owners voluntarily put their green patents into shared carriers, and allow their patents to be used by others for free or at a low price through a license agreement. Within the sharing, the patent holder promises that under certain conditions, the green patent contributed by them will be disclosed to everyone and shared free or a low price, that is, allowing others to use it for free or a low price. As for the method of disclosure and what kind of patent to submit, this is determined by the patent owner, the only limitation is that the green technology must be a technology with certain direct or indirect “environmental benefits”.

• Patent Open License Incorporated into the Patent System

Developing countries’ attempts to compulsorily license patents through the TRIPS Agreement have been opposed by developed countries. Under such circumstances, the Japan Intellectual Property Association (JIPA) and WIPO proposed to launch a database for developing countries, the Green Technology Package Platform (GTPP). This GTPP is open to the world, not limited to Japan or developing countries. It allows members to set prices freely so that patents or other elements can be transferred effectively. Its essence is green technology patent sharing including technical information, patents, investment plans, human resource plans, production facilities, etc. Administered by the WIPO, with support from other UN agencies, the GTPP has good intentions to facilitate clean technology transfer, but whether and how the GTPP can attract so much protected information on a voluntary basis by patentees remains a challenge. On the one hand, the information in the database mainly comes from the active provision of the technology holder, rather than relying on other coercive forces to obtain it. However, the active provision of information by the holders requires certain motivational support, such as material or spiritual measures that can prompt holders to take the initiative to provide information. Once there is a lack of motivation, obtaining information becomes empty talk. On the other hand, the side of technical demand needs clarification according to its own situation. In other words, demand is based on the premise of having a clear understanding of the correct technical level, but it is precisely because developing countries lack the corresponding technical level that it is difficult to correctly recognize their own needs [47].

The newly revised Chinese Patent Law in 2020 has added a patent open license system, which first appeared in the British Patent and Design Law revised in 1919, also known as license of right (LOR). The patent laws of Germany, France, Russia, South Africa and other countries also stipulate the open license system, and the names are slightly different. For example, France calls it “license of office” and Germany calls it “lizenzbereitschaft”. Although the names vary, the core is that the patentee allows anyone to implement their patent if the conditions are met and do not prevent others from using it for other reasons. Patent open license means that, after the patentee applies for and obtains the patent right, they can apply to the patent authority for a form of licensing that allows, within the validity period of the patent right, for anyone to implement their patented technology without further negotiation, as long as a certain amount of royalties are paid. This is a special form under the ordinary patent licensing model, which makes up for various problems in ordinary licensing, such as the lack of wide licensing channels, low licensing efficiency, and unclear licensing fees. In the patent open licensing system, the patentee voluntarily submits a statement of open license to the patent administration department of the State Council, in which the payment method, payment standard and other conditions of the license fee are specified, and the patent can be openly licensed to the public. The patent can be used as long as a written notice is given to the patentee to agree to its open license conditions, and the license fee is paid as required. The license conditions and licensing procedures are formatted and unified, so previous license method, which required two parties to negotiate one-to-one is replaced by a more unified and convenient formatted transaction method, saving transaction costs [48].

The establishment of an open licensing system is to promote the implementation and application of patented technologies. There are three main functions of this system. First, it promotes the connection of patent licensing information. The license information announcement of the SIPO builds a bridge of information communication between the licensor and the licensee, which is conducive to the connection between supply and demand. Second, it improves the negotiation efficiency of patent licensing. Supply and demand sides can reach the license in a simple way, eliminating complicated negotiation and reducing the cost of the license. Third, it reduces the transaction risk of patent licensing. The open licensing system establishes a licensing information disclosure and dispute mediation mechanism, and the licensee can fully understand the licensing conditions and other related situations in advance. China’s open patent licensing system has received extensive attention. According to statistics, as of the end of 2021, the SIPO has received a total of 608 patent open license declarations, including 572 invention patents, involving 110 patent holders in 24 provinces (autonomous regions and municipalities) [49]. Different from the traditional “one-to-one” licensing method, the open license can realize a simple and quick “one-to-many” license that treats rights holders equally. Encouraging the open licensing of green technologies and providing policy support for the open licensing of green technologies will help promote the connection between the supply and demand of green technologies, improve negotiation efficiency, reduce institutional transaction costs, and finally improve the promotion and application of green technologies. But in general, the open license is still in the pilot stage in China. The “Notice of the pilot work plan for open patent licensing” [50] issued by SIPO in May 2022 proposes Beijing, Shanghai, Shandong, Jiangsu, Zhejiang, Guangdong, Hubei, Shaanxi and eight other provinces as the first batch of key support for the patent transformation special plan, and the newly identified key support provinces in 2022 are to carry out pilot projects for open licenses.

• Promoting Ecological Patent Sharing through Private Initiatives

In 2008, IBM proposed the “Ecological Patent Sharing Program”, advocating enterprises to donate environmental protection patents. The initiative is currently being launched globally by the World Business Council for Sustainable Development (WBCSD) in partnership with IBM, Nokia, Pitney Bowes and Sony, and aims to call on individuals and companies with environmental protection patents to share their patented products or business processes solutions; those who need to use these patents can obtain the patents that these companies promise to open from the dedicated public website hosted by the WBCSD [51]. Founding companies such as IBM and the World Business Council for Sustainable Development will invite interested companies to join as members to participate in this initiative to promote innovation and collaboration to protect the planet’s resources. Eco-Patent Commons stipulates that “member should donate patents related to environmental protection to the ecological patent sharing platform. The donated patents can be freely used by any third party without signing a formal written license agreement in advance and without notifying the patent owner” [52]. The sharing platform of Eco-Patent Commons is similar to an agreement, rather than a license. Whether it constitutes patent infringement depends on whether the patent owner believes that the use of the patent is conducive to environmental protection. As long as the patent owner believes that the use of the patent is beneficial to the environment, it does not constitute patent infringement.

Eco-Patent Commons has made many contributions to the promotion of green patents. More than 100 invention patents are green patented technologies, involving energy saving, pollution prevention (reducing pollution sources and reducing waste), using environmentally friendly materials, reducing the use of materials and increasing recycling capabilities, all of which contain environmental benefits [53]. In addition, the implementation of Green Xchange, GTPP, WIPO Green project, Linux patent sharing project, BIOS project, Free Patents and other projects have provided a strong theoretical basis and shared experience for green patent sharing. Some new energy vehicle companies have also tried patent sharing, declaring that their patented technologies can be widely used for free. For example, on 12 June 2014, Tesla announced that all patents would be open; 28 May 2015, Ford announced that it will open its thousands of electric vehicle patents to competitors for a fee [54]. Alibaba announced to join the low-carbon patent sharing agency LCPP, which is the world’s most important organization for sharing low-carbon patents in open data centers, initiated by Microsoft, Meta and HP, LCPP [55]. At present, there is no similar private green patent sharing platform in China.

4.4. The Green Principle in Patent Right Remedies

4.4.1. Restriction on the Right to Stop Infringement Claims

Article 1167 of the Chinese Civil Code stipulates that “where a tortious act endangers the personal or property safety of another person, the party whose rights are infringed upon shall have the right to request that infringing party assume tort liability such as ceasing infringement, removing obstruction, eliminating danger, etc.” The Chinese Patent Law also stipulates that in patent infringement disputes, cessation of infringement is a very important way to bear legal responsibility. In order to protect their own rights and interests or out of business strategy, the right holder usually takes the request to order the infringer to stop the infringement as the first lawsuit request. Due to the absoluteness and exclusivity of patent rights, in judicial practice, the court usually supports the right holder’s request to stop the infringement lawsuit on the basis of identifying the facts of patent infringement.

However, the patent system not only pays attention to the interests of the patentee, but also balances the social and public interests, and pays attention to the progress of social science and technology and economic development. Therefore, when stopping the infringement would be contrary to the public interest, the right holder’s right to request to stop the infringement should be restricted. For example, in some cases where patent infringement is established, if the order to stop the infringement and destroy the infringing product will damage the environment or waste resources, the court usually holds that civil activities should be conducive to saving resources and protecting the environment, and then refuses to grant the right holder the remedy to cease infringement [56].

On 19 February 2008, the Vice President of the Supreme People’s Court of China mentioned for the first time the application and limitation of legal liability for infringement in intellectual property infringement cases in his speech at the Second National Court IP Trial Work Conference. It mentioned that, “If the cessation of infringement will cause a great imbalance of interests between the parties, or it is not in line with the public interest, or it is actually difficult to implement, the interests can be weighed according to the specific circumstances of the case, it is not necessary to judge to stop the infringement under the premise of paying economic compensation and other alternative measures” [57]. In addition, on 21 April 2009, the Supreme People’s Court issued the “Opinions on Several Issues Concerning Intellectual Property Judgment and Serving the Overall Situation under the Current Economic Situation”, Article 15 also clearly states the same opinion. Therefore, from the above-mentioned judicial meeting and documents, it is possible that the court will not support the right holder’s lawsuit request to stop the infringement in intellectual property infringement cases, if destruction of infringing products may cause significant imbalance of interests between the parties, contrary to the public interest. Protecting the ecological environment is a kind of public interest. Therefore, the limitation of the claim of stop the patent infringement should take into account the sustainable development of the ecological environment, and implement the green principle into the patent infringement remedy. The following typical cases are based on the green principle to restrict the right holder’s claim to stop the infringement. For example, in the patent infringement case between Jingyi Company and Guangzhou Baiyun Airport and Sanxin Company, the court held that the defendant, without the permission of the plaintiff, manufactured, sold, and used the patented products during the design and construction of New Baiyun Airport Terminal. The two defendants infringed the patent right. However, considering the special nature of the airport, it did not meet the public interest to order stopping the use of the infringing products. Therefore, Baiyun Airport will continue to use it, but the usage fee should be paid appropriately [58]. In the case between Jingyuan Company, Fuji Huashui and Huayang Company, the defendant was found to be infringing by manufacturing and using the patented device matched with the patented method involved. However, considering that the thermal power plants’ use of the patented device complies with the basic national policy of environmental protection, and the power supply situation directly affects the local economy and people’s livelihood, if the defendant is ordered to stop using the patented device, it will cause pollution to the environment. Balancing the interests of the rights holder and the public interest, the court did not support the plaintiff’s request to stop the infringement, but the defendant was ordered to pay the corresponding royalties [59]. In cases involving environmental factors, if the order to stop the infringement or destroy the infringing products will waste resources and damage the environment, and there are no specific intellectual property rules to follow, the court will apply the green principle. After the establishment of the green principles, the court, when hearing similar cases, should reject the plaintiff’s request of stopping the infringement, based on the green principle.

4.4.2. Punitive Damages for Violation of Green Principles

Green technology has the characteristics of dual externalities, that is, the dual externalities of technology and environment. From the perspective of patents, this means that the developer of the technology cannot exclusively enjoy the benefits of the technology, but it brings about the externality that others can “free ride”, that is, the imitator can obtain the new technology at a very low cost through plagiarism, which dampen the enthusiasm for innovation. From an environmental point of view, the cost of social governance caused by environmental pollution is higher than the negative externalities caused by the benefits of polluters [60]. Polluters can bring greater benefits to themselves without being punished, so they will not take the initiative to adopt “green” technologies. Without corresponding institutional incentives and constraints, the R&D and dissemination of green technologies will be uneconomical for rational economic entities, resulting in social entities lacking the motivation for R&D and instead tending to adopt outdated, non-green technologies. Therefore, on the one hand, patent system incentives should be provided to green technology developers, such as the green channel for green technology review mentioned above, to speed up the patent authorization of green technology, and to encourage further research and development of green technology. On the other hand, the infringer who infringes the patent should be severely punished. If the consequence of the infringer infringing the patent of others is to cause serious environmental pollution, then punitive damages should be made to them, the cost of compensation should be increased, and they should be motivated to seek normal patents license. Both the Civil Code promulgated by China in 2020 and the newly revised Patent Law in 2020 have added punitive damages system. Patent punitive damages are for intentional patent infringement and serious circumstances. The Supreme People’s Court’s interpretation on the application of punitive damages in the trial of civil cases of infringement of intellectual property rights states that “if the defendant has the following circumstances, the people’s court may determine that the circumstances are serious: the infringement may endanger national security, public interests or personal health”, The Shandong High Court’s adjudication guidelines on the application of punitive damages in the trial of civil cases of infringement of intellectual property rights also stipulates that “if the plaintiff provides evidence to prove that the defendant has one of the following circumstances, the people’s court may determine that the defendant’s infringement of intellectual property rights is serious: The defendant’s infringement may be endangering national security, public interests or personal health. Public interests refer to the common interests of the public, including public safety, ecological environment, public order, etc.”; Shenzhen Intermediate People’s Court Guiding Opinions on the Application of Punitive Damages in Intellectual Property Rights Civil Tort Disputes (Trial) also stipulates the factors for determining serious circumstances that “if the tort has one of the following circumstances, it can be determined as “serious circumstances”: The tortious act infringes on the personal safety of consumers, the ecological environment and other consumer interests or public interests”. Taking damage to the ecological environment into consideration of serious circumstances and applying punitive damages to patent infringers is the embodiment of the green principle in patent infringement relief. In addition, the amounts of punitive damages are calculated by multiplying the compensation base by the compensation multiple. The base of punitive damages is calculated based on the actual loss of the plaintiff, the illegal gains of the defendant or the benefits obtained from the infringement according to relevant laws. The multiple of punitive damages takes into account factors such as the degree of subjective fault of the defendant and the seriousness of the circumstances of the infringement. Violating the green principle and destroying the ecological environment is a serious circumstance, which can affect the determination of the multiple of punitive damages and affect the final amounts of punitive damages.

5. Conclusions

Green principles have been embedded in China’s economic development strategy and China’s civil legal system. The patent system closely related to green technology is also constantly improving the implementation of the green principle. The green patent system has an important impact on sustainable development. This paper looks for evidence at the system level from the three aspects of patent application protection, patent licensing and patent infringement relief, and proves the penetration of the green principle in the patent system. There were significant findings in the study.

From the perspective of system feasibility, in terms of patent application, it is feasible to restrict non-green technology patent application through the patent object exclusion system and promote green technology patent application through accelerated examination; in terms of patent license, compulsory license and open license are theoretically feasible. It can promote the application of green patents; from the aspect of patent infringement liability, the introduction of the green principle is the embodiment of sustainable development requirements in the law.

However, from a practical point of view, in terms of patent applications, the application of patent object exclusion needs to be more specifically reflected in legal norms, and the positive impact of accelerated examination on the number of green technology patent applications is not obvious. Accelerated examination will undoubtedly increase the number of patent applications for green technology, but more importantly, enterprises should improve their own green technology innovation capabilities; in terms of patent license, there has never been a single case of compulsory license in China since the compulsory license system was regulated in the Patent Law; what is more, the open license system is still in the pilot stage, and there is no private sharing platform in China; in terms of patent infringement liability, the green principle has guided judges to decide cases, and the patent punitive damages system has just been established, and it is currently impossible to predict its impact.

In general, China is currently working on building a framework for a green patent system and will improve the details of the system, which is also the direction of future efforts. The results can help companies to fully understand the content of the green patent system, help policymakers and implementers better understand and implement green principles in the field of patents, put theoretical discussions into practice and help other countries fully understand the current efforts of China in the construction of the green patent system, using legal weapons to provide a strong guarantee for green development and sustainable development, and further promoting the patent protection, promotion and application of green technologies.