BLUE REVOLUTION HAWAII

THE BLUE REVOLUTION: 

ENVISIONING OUR OCEAN FUTURE

                     Leighton K. Chong, Honolulu, HI

 

The surface of planet Earth is 29% land and 71% oceans, and by volume oceans account for 99% of its living space. Only about 30% of the total land area is used for human habitation, and of this about half is for agriculture. The production of animal protein for food accounts for 70% of agricultural land use. Taking up far less land space, seafood production, wild-caught and farmed, now supplies 30% of total protein consumption, more than from animal protein. Yet the world population is expected to grow from 7 billion to over 10 billion persons by 2050. With most fisheries already near depletion, and any increase in animal protein production limited, global food security in the future may be in jeopardy.

 

Aquaculture production of seafood in the U.S. accounts for less than 2% of the world’s farmed seafood total, as the U.S. has lagged as a major importer. Under the UN Law of the Sea (UNCLOS), ocean-bordering nations have territorial jurisdiction of coastal waters extending to 12 miles offshore, and economic jurisdiction over their exclusive economic zones (EEZ) extending to 200 miles out in ocean waters. If ocean farming is expanded to just 20% of the temperate EEZ zones of ocean-bordering nations, it could supply all of the increased world food needs by 2050 with farmed seafood. 

 

The oceans also have wind, ocean thermal, and tidal energy resources that can provide renewable electrical power to commercial-scale ocean farms in EEZ-permitted ocean farming zones. Ocean thermal energy conversion (OTEC), first demonstrated by researchers in Hawaii in 1993, can use the temperature differential of cold deep water pumped to the surface to provide electricity to ocean farms renewably and sustainably, and carbon-free. OTEC power can also be made transportable by conversion of hydrogen fuels, and also produce desalinated water as by-product. Its enriched (decompressed) cold water discharge can be used in ocean farming for growing plankton, seagrass and feeder fish to feed higher-order farmed fish and other seafood products. 

 

Having available carbon-free, renewable ocean energy and commercial-scale farmed seafood production supported on large ocean platforms could lead to the eventual building of ocean cities. As sea levels could rise 8 feet globally by 2100 as polar icecaps melt, some coastal cities and island nations are already preparing for relocation to ocean cities.

 

A first-of-its-kind Pacific International Ocean Station (PIOS) is proposed for deployment in a far offshore zone of the Southwest Hawaiian EEZ off NELHA on Hawaii Isle. PIOS is envisioned as a pilot station for testing best practices and technologies for OTEC and ocean farm systems as a model for ocean resources development in the U.S. and worldwide. In the vastness of the oceans’ resources lies our future. A “Blue Revolution” of sharing the natural bounty of the oceans renewably and sustainably has promising potential to provide for human needs worldwide in the future.

 

          Ocean farming to solve world food needs & global warming

    

        OTEC power generation to support large-scale ocean farming

    

    

    Ocean cities as answer to growing populations food needs and 

    to Climate Change with rising sea levels (ref: Shimizu Corp.) 

Blue Revolution Hawaii, Inc., based in Honolulu, HI, is a non-profit advocacy group for renewable, sustainable, eco-friendly, and carbon-free ocean resources development.  Leighton Chong retired from intellectual property law practice after 2016, and has been COO & Counsel for the organization and its independently organized TEDx Countdown events produced under license.

A LIFE IN PATENTS

            I started my career right out of law school in 1974 with an offer of employment at one of the leading patent law firms in New York City.  In those days, that made it one of the leading patent law firms in the United States and, by extension, the world.  I recall my excitement walking to work at 30 Rockefeller Center (then named the RCA Building) where the firm had its offices below the famed Rainbow Room on the top floor.  How wonderful it was to be at the center of the Universe working to protect the technological innovations of some of the world’s greatest companies!  Later I co-founded the law firm of Ostrager Chong Flaherty and Broitman, PC, continuing in patenting and intellectual property (IP) law practice.  In my mid-life, after 22 years in New York City, I finally decided to return to Hawaii’s beautiful and easy-going living environment, where I continued my IP law practice with individual inventors and startup technology companies.

            Now over 40 years have gone by and I have decided that the time has come to retire from my lifelong profession.  By my estimate, I have worked on over four thousand patent applications, over half of which statistically issued as U.S. patents.  My work spanned successive waves of technological innovations in my field of electronics, from mainframe computers, to personal computers, to Internet commerce, to mobile devices and, more recently, to smartphones.  In retrospect, my work in patenting was but one link in the ongoing evolution of human tool-making.  Upcoming patent attorneys will continue the work with new waves of innovations in robotics, bionics and biologics, and much more to come. 

            The immediate legal effect of patenting is an official grant by the U.S. Government to an inventor of the exclusive right to make, use and sell the patented invention in the U.S.  This is a grant of rights enshrined in the U.S. Constitution, Article I, Section 8.  And it starts with the happy occasion of the inventor’s receipt of a gold-sealed, red-ribboned patent certificate from the U.S. Patent Office.  What happens after that can go in a wide range of directions. 

Following a period of anti-trust enforcement in the 1960s and 1970s against large corporations monopolizing markets in the U.S. economy by accumulating large thickets of patents, Government policies in the past four decades have shifted to incentivizing individual, university, non-profit, and small company inventors (“small entities”) to develop innovations with greater speed and creativity than large companies can.  This started with the Bayh-Dole Act in 1980 enabling small businesses to retain title to inventions developed in Federally-funded research programs.  With corporate R and D budgets subject to tightening for better bottom lines to appease stock market investors, patenting has shifted away from primarily corporate inventions to small entity inventors receiving over one-half of all U.S. patents granted annually. 

In a conventional business model, small entity inventors will try to start up or partner with new businesses to commercialize their inventions.  Most do not succeed, primarily due to difficult business circumstances, but also because early attempts to design, produce and sell a new product or service require some vetting in competitive markets before it becomes attractive enough to purchasers to command a significant market share.  Faced with making a huge investment of time and effort, and a high business risk of failure, small entity inventors may instead seek to license or sell their inventions, and the patents that legally define their exclusive rights to those inventions, to large companies with already-established positions in the relevant markets.  Large companies, with innovation constrained by tightened R and D budgets, also have become more open to “licensing-in” outside innovations, as long as the cost is less than expensing their own efforts.  These trends were accelerated with the Internet becoming publicly accessible as a global network in 1993 to anyone anywhere, which started the “dot.com” revolution in new e-commerce applications and mobile device technologies.

Licensing-in outside innovations is a marriage of convenience that can work well initially, but inevitably can lead to demands for higher licensing fees or sale prices, and to large companies choosing to develop their own versions on innovation ideas if the patent owners’ demands seem too high.  A seminal event that captured headlines worldwide in 2006 was when the Canadian company Research In Motion (RIM) that popularized the Blackberry mobile device was sued by and settled the claims of the patent owners for $612 million in order to continue to operate its Blackberry network.  A flood of so-called “patent troll” lawsuits followed, routinely seeking billions in patent infringement damages, with the threat of a court injunction against further usage as leverage.  Over time, with plaintiffs’ lawyers being ever creative, large numbers of lawsuits were being prosecuted on sometimes dubious patents, and vigorous litigation tactics tended to devolve into artful gamesmanship.

Although abusive patent litigation tactics occurred in only a minority of cases, negative news reportage on “patent troll” litigation made it seem like this was another example of opportunistic “sharks” using the legal system for payoffs of huge undeserved gains, much like how the packaging of collateralized debt obligations was abused to rig the financial system.  Patent reform bills were lobbied for and eventually the America Invents Act (AIA) was enacted in 2013, which, along with changing the U.S. to a first-to-file invention priority system, had the effect in litigation of opening patents to repeated re-examination challenges upon any qualified requests to the U.S. Patent and Trademark Office (USPTO) over the patent term.  At the same time, U.S. courts have been issuing decisions that toughened the requirements for upholding the validity of patents, diminished the scope of infringement damages recoverable, and made injunctions against infringement difficult to obtain for non-operating patent owners.  The net effect of this backlash against the assertion of patents has been to make patents too costly and too difficult for small entities to defend, and turn their value for large companies into litigation assets to be amassed for defense against infringement suits by competitors or for billion-dollar sale in corporate divestment.

Patent policies have thus reversed course over the four decades of my law practice, from sanctioning large companies for using them as tools to create industrial monopolies, to preventing small entities from using them as tools for extracting payoffs from large companies.  As a result, the value of patenting has been diminished as conventional methods of extracting value from them have been upended.  The one exception is in the pharmaceutical and medical industries where patents are still used to preserve market exclusivity to enable companies to recoup the large investments needed to develop FDA-approved drugs, medical therapies and devices.  In the long view, perhaps this market-exclusivity model for use of patents is the correct (or more correct) outcome, that is, policies that effectively discourage use of patents to extract opportunistic “rent-seeking” gains, and instead enable patent owners to recoup investments in bringing new products to market.

So my advice for the upcoming generation of patent attorneys is to be prepared for the current trend of diminishing value in patenting to continue, with consequent decreasing of law firm job opportunities and salaries, except for those companies that are making the investments necessary to bring their innovation products to market.  Patent validity will also continue to be stringently scrutinized in the USPTO and in litigation, which means that patent drafters will need to be increasingly more technical in scientific competency as well as up-to-date on developments in patent law.

            For individual and small company inventors, my advice is to expect that it will increasingly prove too long, costly and uncertain to try to enforce patents in order to recover licensing fees from well-defended large companies under current policies.  Again, the better business model for patenting in at least the near-term is to defend market-exclusivity for new products that are introduced in relevant markets.  As for further patent reform, don’t expect a Trump Administration committed to preserving jobs at companies kept in the U.S., and a fiscally conservative Republican-controlled Congress opposed by a fractious Democratic minority, to pass a patent reform bill that shifts patent policies away from favoring large companies to bolstering the enforcement rights of small entities.

            I feel fortunate to have been in law practice during an exciting period of dynamic changes in technological innovation.  Going forward, I will continue to write on developments in patenting and IP law that may be of interest to technology communities in Hawaii, and will remain available for consulting on IP-based business strategies.  And to those that continue in patenting, I confer the Spockian valediction, “Live long and prosper”.

Why It May Still Be Worthwhile to Try to Patent Your Business Method Invention

Since the 1980s, the U.S. Patent Office has been the leading pioneer in the world in enabling the patenting of business method inventions.  For over four decades, we have seen the many surprising twists and turns of U.S.-style business method patenting, from Merrill Lynch’s enforcement of its Cash Management Account patent against Paine-Webber in the early 1980s, to the wild-and-woolly patenting of ecommerce usages when the Internet went public in the 1990s, to the billion-dollar infringement lawsuits brought by investor-backed patent trolls in the 2000s, and to the public, political and judicial backlash against patenting of tax avoidance schemes, method for making enclosed peanut-butter-and-jelly sandwiches, and other fringe “inventions” in recent years.

All the while the U.S. Patent Office and the courts have struggled to keep up with the infinite creativity of patent applicants seeking to patent their new business ideas.  They have sought to define a bright line separating unpatentable “abstract ideas” from patentable uses of such ideas for “manipulation of a tangible machine or process” to enable “significant post-solution activity”.  Meanwhile both startups and giant technology companies alike have been whipsawed by the ever-more spurious semantic attempts of the Patent Office and the courts to define what are unpatentable "abstract ideas", resulting in ever-increasing challenges to patents that were otherwise obtainable under previous court interpretations.

Meanwhile, the patent offices and high courts in other countries have long clamped down on the patenting of business methods.  The European Patent Office and the Japanese Patent Office examiners stringently require that grantable patent claims define specific new “technical effects” for computer implementation of business methods.  The high courts in Canada and recently in Australia have invalidated business method patents which were interpreted as covering primarily abstract ideas.

However, it may still be worthwhile for an aspiring startup company to file a U.S. patent application on its business method invention.  First of all, an applicant is entitled under U.S. Patent Laws to give public notice that it has a “U.S. patent pending” upon filing a patent application, even a provisional application.  This can provide significant marketing advantage, as well as serve as a warning to competitors that copying your product or system may risk legal consequences if a patent is eventually granted.

Secondly, if a business method patent application is drafted with attention to the Patent Office and court pronouncements on how a patent application must disclose a specific, new technical implementation of a business method function, there is still a good chance of a patent being granted by the Patent Office and later being found valid by the courts.  Anecdotal surveys indicate that up to about 20% of business method patent applications are being granted, and statistics on patent litigation in the courts indicate a similar percentage being upheld as valid.  The percentages would be expected to be higher for patent applications that have been drafted to meet technical disclosure requirements more stringently.

Thirdly, a U.S. patent application (non-provisional) is required to be published by the U.S. Patent Office 18 months from its filing date, unless non-publication is specifically requested at the time of filing and all parallel foreign patent filing rights are waived.  Publication of your patent application at 18 months from filing, even if not later granted as a patent, serves as an official record of your invention claim, and becomes a prior art reference that can be cited to prevent any later-filed patent applications by others on the same or similar business method invention from being patented (anywhere in the world).

Lastly, as long as your patent application remains pending under examination at the U.S. Patent Office, it is a business asset that may be valued by a potential acquiring company or exclusive licensee.  While you may not have the budget to pursue patenting after initial rejections in examination, the acquiring company or licensee may have the budget to do so.  The filing date of your patent application is officially recognized by the U.S. Patent Office as your recorded date of invention, and as long as your patent application remains pending, any divisional, continuation, and/or improvement (continuation-in-part) patent applications related to your original invention that are filed by the patent owner are entitled to claim the invention priority date of your original filing date.  Under the U.S. patent system, the right to file divisional, continuation, or improvement applications is unlimited, and can be done up to a hypothetical patent term of 20 years from the original filing date.

In summary, there are significant business and tactical advantages that may make it worthwhile for a startup company to file for a U.S. patent application on its business method invention, despite the current chaos in the U.S. Patent Office and the courts on defining the legal parameters for patenting business method inventions.

PROTECTING PATENT RIGHTS IN COLLABORATIVE INVENTING

            The tidal wave of online usage of social networks has spilled over into collaborative business networks.  Social networks such as Facebook are being used to create and market new ideas and innovations using social networking webpages.  Collaborative innovation networks have sprung up as online communities of like-minded people who choose to work together on innovation projects.  The speedup in investor expectation for startups to get to market using online development and product marketing tools has also given rise to online startup funding networks known as crowdsourcing.  For example, Kickstarter allows users to post project funding proposals on its website to vie for online (crowd) funding.  But what happens to patent (i.e., invention) rights in collaborative online inventing?  A brief outline of some of the perils and pitfalls of this phenomenon and recommendations for protecting patent rights follows.

CONFLICTING CLAIMS OF OWNERSHIP

Where a collaboration group has involved diverse users who may later disagree how they will exploit the result and share profits flowing from it, conflicting claims of ownership can arise.  This can lead to full-blown disputes and/or litigation that can tie up the innovation creators in destructive legal wrangling for years. 

In crowdsourcing, the typical terms of use, such as Kickstarter‘s for example, provide no guidance how to contract for “rewards” or “promised benefits” with online funders.  An inartfully drafted promise of benefits for crowdsourced funds can lead to funders later claiming a share of ownership or ongoing benefits (royalties) from invention rights.

As is already well-known to established companies undertaking joint research projects, it is important to define in writing in advance a collaboration group’s mission, membership and at least a general framework for ownership and apportionment of rights and benefits.  This can avoid or at least mitigate conflicting claims of ownership later.

LOSS OF INVENTION RIGHTS

Erroneous myths and misconceptions persist when it comes to invention rights, and specifically patenting, in collaborative inventing.  Many of those not familiar with the patent process still believe that they can mail a stamped and sealed invention disclosure to themselves to establish proof of their date of invention.  However, the U.S. Patent Laws were reformed by the America Invents Act (AIA) of September 2011, with full effect from March 2013, from the former “first-to-invent” system to a “first-to-file” system like the rest of world.  Under the “first-to-file” system now in effect in the U.S., patent rights belong to the inventor(s) who first files a patent application containing a complete enabling disclosure how to put the invention into practice.  It does not matter that an inventor has been working on their invention idea for years, or even for one day, before someone else files their patent application.  The first party to file will win!  It is important that a patent application be prepared and filed as soon as the invention has been completed with details of its best implementation.

Another common misconception is that a quick provisional application can be filed to establish an official invention date and buy one year of time for a formal patent application to be filed.  But this is true only if the provisional application contains an enabling disclosure of what will later be claimed as the invention sought to be patented.  All too often an amateur inventor will self-file a provisional application with marketing verbiage stating their “idea” or “wish list” for their invention but leave out crucial details of proposed implementation.  Later on during Patent Office examination, they may be dismayed to have the patent examiner cite disclosures of the same or similar idea by others earlier, and learn that their provisional filing date cannot be relied on as a date of invention because enabling details of implementation that might be patented were not disclosed in the provisional.

Collaboration networks often hold live events that connect online where an invention idea may be worked on publicly by a collaboration group.  Such public events published online may constitute a publication of what the group has worked on, which would cause an immediate loss of patent rights due to publication by others occurring before a patent application has been filed.  The U.S. Patent Office imposes a requirement for disclosure of all material prior art known to an applicant for patent, including their own prior publication, otherwise any issuing patent may be attacked later for invalidity.  The collaborative group members must disclose their prior publication to the Patent Office, which will have the effect of restricting them to patenting only a significant technical improvement over what the group publicly disclosed.

PRIOR ART AGAINST PATENTING

People not familiar with the reformed U.S. patent system may also believe in error that their own prior public activities (public disclosure, use, sale, or publication) cannot be cited as prior art against their own patenting if they are within the one-year U.S. “grace period” for inventor publications prior to filing.  But the “grace period” only applies to prior publication by the inventor(s) themselves.  It does not apply to prior public disclosures by other parties who may participate in development of the invention, such as marketing consultants, manufacturers and component suppliers, startup agencies that publish invention pitch descriptions, grant funding agencies that publicly post RFP descriptions and project submissions, etc.  Even a crowdsourcing project proposal by a related business entity can be deemed a prior public disclosure by another party.  Such prior public disclosures by other parties have immediate effect as prior art against patenting. 

Patent-killing prior art can also include prior public use or sale of the invention in foreign countries, or prior filing of a foreign patent application anywhere in the world.  Foreign filing dates are typically 18 months earlier than their date of publication, which makes it even more imperative that a U.S. patent application be filed as soon as an invention is completed.  In one recent U.S. patent court decision, a foreign publication by an off-shore manufacturer of an invention product for its U.S. owner was held to be qualifying prior art against the owner's patenting in the U.S.

            

POINTERS FOR PROTECTING PATENT RIGHTS IN COLLABORATIVE INVENTING

(1)  Define in advance the collaboration group’s mission, membership, and rights and benefits in any invention(s) developed. 

(2)  File a U.S. patent application as soon an invention has been completed, taking care to explain full enabling details of its best implementation at that time.  Take care to name as inventors all those making a substantial contribution to the conception and implementation of what is claimed as the new or improved subject matter (each named inventor must review and sign the application).

(3)  If the collaboration group intentionally or inadvertently made the invention subject matter public more than one year before filing its patent application, it must disclose that information to the U.S. Patent Office, and take care to claim only significant technical improvements over what was publicly disclosed.

(4)  Be aware of what your competitors or even your own business partners or suppliers may publish in the U.S. and/or globally.  There is no grace period for third party publications, so you must file your U.S. patent application as soon as possible before any such public disclosures are made.

(5)  Be aware of the risk that collaboration networks are public forums whose online publications can kill later-filed patent rights, so manage your participation and online disclosures accordingly.

Leighton K. Chong

IP & Patent Attorney

December 2014

IPR BENEFIT SHARING IN OCEAN RESOURCE TECHNOLOGIES

The world's burgeoning population and continual pressure for better standards of living will require ever greater resources for living needs at the same time that conventional energy sources are becoming depleted or unusable, food sources depleted and insufficient, and clean water supplies polluted and scarce. To where will humans turn as the available resources on Earth run out and human needs continue to grow?

71 % of our Earth's surface is covered by ocean, and 80% of the heat of the Sun shining daily on Earth is stored as thermal energy in the ocean. By pumping or upwelling just a small fraction of this cold deep ocean water for heat exchange with warm surface waters, the stored energy if converted by ocean thermal energy conversion (OTEC) into electricity has a capacity of 10,000 times the energy used by mankind daily. The OTEC heat exchange cycle can also be used to generate potable water by flash evaporation, and OTEC electricity can be used to generate clean fuels such as hydrogen and ammonia by electrolysis.  Each megawatt of OTEC production could supply energy, fuel and water sufficient for about 50,000 persons (world usage averages).

Deep ocean waters store high concentrations of dissolved minerals such as nitrates, phosphates, and other nutrients that if brought to the surface could act as natural fertilizer for growing marine biomass on submerged ocean racks.  Marine biomass can be processed into clean biofuels such as butanol, and the biomass residue can be further processed into organic fertilizers, protein-rich animal and fish feeds, bioactive pharmaceuticals and other high-value marine bioproducts.  Fishfeed from marine biomass and OTEC electricity can be supplied to tethered ocean cages for growing pelagic species of fish.  The discharge of nutrient-rich cold water into the euphotic zone of surface waters could stimulate marine life growth and thereby enhance marine food chains to revitalize wild fish stocks.

Pumping cold deep ocean water to the surface in large volumes for utility-scale OTEC energy production could have beneficial impacts on the marine environment and atmosphere.  Each megawatt of OTEC energy would bring about 50 million gallons of cold ocean water to the surface per day.  The large-scale cooling of surface waters could reduce or mitigate the formation of tropical storms and hurricanes.  Other environmental benefits could include absorption of carbon dioxide from the atmosphere to reduce greenhouse gases that contribute to global warming and ocean acidification.

Realization of this vast potential for producing food, water and energy from the ocean represents a new frontier for humanity that has been called the "Blue Revolution".  Like the “Green Revolution” of the past generation that brought about an order of magnitude or greater of productivity in agricultural and other land-based food production, the Blue Revolution has the potential to provide food, water, and energy sufficient for mankind’s needs.  However, rather than being land-based, the Blue Revolution is to be carried out in the oceans.  This is a planetary resource that under the United Nations Convention on the Law of the Sea has been declared to be “the common heritage of humanity”.

Research efforts over the past 40 years have shown that OTEC power generation can support integrated production of energy, food, water and a variety of marine bioproducts on ocean platforms or "plantships" deployed in ocean waters.  OTEC­ powered plantships can be deployed in ocean spaces far removed from coastal areas occupied for human recreation, fisheries, marine sanctuaries, ports, and navigation lanes. Under the United Nations Convention on the Law of the Sea[1] (UNCLOS), countries bordering the oceans are deemed to have territorial waters extending to 12 nautical miles (20 km), contiguous zones of enforcement extending to 24 nautical miles (40 km), and administrative jurisdiction over exclusive economic zones (EEZ) extending 200 nautical miles (340 km) from shore. 

UNCLOS provides that ocean-bordering nations have exclusive rights to exploit their EEZs economically, including through fishing rights, mineral extraction from the seabed, and permitting the deployment of ocean structures, artificial islands, and/or seabed structures.  Other nations have a right of transit for vessels through the EEZ and may share in access to fishing and other resource gathering to the extent not utilized or otherwise permitted by the ocean-bordering nation.  Ocean waters beyond the EEZ are defined as the "high seas" or "international waters", which are reserved as "the common heritage of humanity" from exclusive appropriation or exploitation by any country.

The U.S. is a signatory to the UNCLOS but has not yet ratified the treaty to be binding as U.S. law (first blocked by President Reagan in a dispute over the definition of boundaries of the continental shelf).  However, the U.S. observes its ocean space definitions and framework of rights and duties.  U.S. administrative regulation of activities in the EEZ continues to be in a transitional state moving toward codification.  Environmental and resource use regulations and other laws have effect within U.S. territorial jurisdiction of territorial waters extending to 12 nautical miles, and may be enforced within agency discretion to contiguous zones extending to 24 nautical miles. 

For realization of the potential of the Blue Revolution, much research on testing and development of best practices and technologies for ocean resource production needs to be done.  Intellectual property rights (IPRs) in technology innovations are typically claimed by developers and inventors and secured in their home countries as well as other countries of the world.  Technology developments are often generated by multi-lateral or international research collaborations, as global companies and foreign governments seek to exploit opportunities in other countries.  The global system of intellectual property (IP) rights has been developed to protect innovation and invention rights within and among the nations of the world.  Important questions of benefit sharing in IPRs would be raised for Blue Revolution technologies developed through multi-lateral or international research conducted in ocean zones, and used in later deployment of ocean resource production technologies in the ocean zones of other countries.

Historically, knowledge of best practices and development of economical and efficient technologies have been led by the more advanced nations that have the technological and economic wherewithal to explore and innovate new technologies.  But the more advanced nations have tended to use strong IPR regimes for market dominance and profit­making in globalized world trade.  This has resulted in ongoing trade conflicts and economic inequities.

The "Green Revolution" of the 1960s and 1970s greatly improved agricultural productivity but was dominated by industrial corporations of the more advanced countries controlling high-yield seeds, fertilizers, & pesticides for sale in lesser developed countries at high cost.  Advanced medical and drug technologies are another area where advanced countries have controlled access to needed drugs and therapies, such as AIDS drugs, to the detriment of lesser developed countries in Africa and Asia.

Developing countries have long sought to promote developmental policies toward access to life-sustaining technologies through benefit sharing in IPR rights, and this position has been supported in many UN studies such as by UNESCO and UNCTAD.  Most recently, developing countries have sought to negotiate IPR access to climate change technologies as a condition to signing on to world protocols to reduce greenhouse gas emissions.  However, multi-national companies and the IPR agencies of the more advanced countries have resisted attempts for IPR access, recommending instead that developing countries should strengthen their own creative economies to build up their IPR assets.[2]

Because the oceans are a shared, open, and accessible planetary resource available to mankind worldwide, it has been asserted that the benefits of ocean resources production should be shared with all humanity.  In particular, it has been suggested that IPR benefits in ocean resource technologies should be shared by allowing ocean resource technology access to all countries of the world. 

The case for IPR benefit sharing in ocean resource technologies is particularly compelling where multi-lateral or international cooperation is necessary for global companies and foreign governments to conduct research within or in proximity to ocean zones of developing countries.  Those countries should be allowed to share in the benefits of such research in exchange or as equitable consideration for permitting the research to be conducted within or in proximity to their ocean zones.  As effluents and other effects of production technologies practiced in one ocean zone can easily flow and create impacts in adjacent ocean zones, IPR benefit sharing should also be considered when developed ocean resource technologies are later deployed within or in proximity to the ocean zones of bordering countries. 

Much ocean research will necessarily entail cooperative or joint research efforts.  In joint research, it is common to jointly manage or pool together IPR rights in order to remove ownership and enforcement issues as obstacles to sharing research work among participants.  Also, in circumstances where multiple parties collaborate to develop and optimize different parts of a complex system, such as occurred in the development of digital television and microprocessors, allowing component developers to be licensed under collective IPRs for the whole system can remove the legal friction that might otherwise occur from the assertion of IPR rights between contributing parties.

It is also important to remember that IPR rights are territorially based.  That is, the legal monopoly granted by a patent obtained in a given country under its patent laws only apply within the territorial jurisdiction of that country.  Practice of an IPR-protected technology in the ocean EEZ of a country would technically occur outside of the country’s jurisdiction, and therefore IPR rights obtained in that country could not be enforced to prevent deployment and use of the IPR-protected technology in the ocean EEZ outside of that country’s jurisdiction.

Another consideration weighing in favor of IPR benefit sharing in ocean resource technologies is that the patent systems of almost all countries of the world are “first-to-file” systems in which a patent can only be obtained if a patent application is filed before a first publication of the invention from or through another source.  Under the “America Invents Act” enacted in September 2011, the U.S. also reformed its patent system to become a “first-to-file” system like the rest of the world.  In multi-lateral or international research efforts, it has become common for joint research parties to publish research data for access by participating parties and/or by sponsoring research institutes, companies, and government agencies.  Such publication of research information before a party has filed for patent on any invention(s) contained therein could preclude a valid patent from being obtained under “first-to-file” patent systems.  Therefore, ocean resource technologies developed through multi-lateral or international research might inherently preclude patenting anywhere unless total secrecy from prior publication can be enforced.

Finally, as a broad international protocol under UNCLOS, international waters beyond designated ocean EEZs up to 200 nautical miles from shore are deemed to be “the common heritage of humanity", which no nation or entity can appropriate for its exclusive use.  Effluents and other effects of ocean resource production technologies practiced in one country’s ocean zone can easily flow and create impacts in international waters.  Therefore, benefit sharing of IPRs in ocean resource technologies with all countries of the world might be considered equitable compensation for any entity’s use of IPR-protected ocean resource technologies that may affect international waters.

In summary, benefit sharing of IPR rights in ocean resource technologies for production of food, water and energy from the oceans for humanity’s needs may become an important new paradigm in the Blue Revolution.  Such IPR benefit sharing would be promoted by the shift from land-based use of technologies and territorial-based IPR systems to the use of ocean resource technologies in the oceans, as well as consistent with international protocols for use of the oceans as the common heritage of humanity.

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[1] United Nations Convention on the Law of the Sea, adopted December 1982, ratified by 166 countries, see UN Convention website: http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm

[2]  "Access to Climate Change Technology By Developing Countries", by Cynthia Cannady, IP*SEVA, ICTSD Global Platform on Climate Change, Trade Policies and Sustainable Energy, Issue Paper No. 25, Sept 2009.

Release of my book ‘Song of Planet Earth’

Dear Friends:


I am pleased to announce the release of my book ‘Song of Planet Earth’.

In May 2008 I took a trip around the world, seeing the continents unfold below on daytime flights flying west. It allowed me to experience the Earth as a whole planet for the first time. I kept a travel diary of my experiences in the cities and regions I visited, and this became the start of my idea for this book.

The story tells of Alvin, a writer on nuclear arms control, who takes an around-the-world tour.  While in Istanbul, he witnesses another tour guest turn over a folder for classified material to some shadowy looking men. He suspects a terrorist plot to steal nuclear weapons from a NATO airbase and tries to alert authorities to stop it. But he has no proof other than the photos he surreptitiously took of the transaction. What can he do? 

Written as a travel adventure, the book makes a scientifically-based inquiry whether humankind has the will and the wisdom to survive nuclear weapons proliferation and other grave threats to our world. OK, it's not easy reading, but I think you will find it eye-opening and entertaining!  If you like it, please let others know by writing a review online :>)


The book is now available for order on Amazon:
http://www.amazon.com/Song-Planet-Earth-Leighton-Chong/dp/1481758993/ref=sr_1_1?ie=UTF8&qid=1371671303&sr=8-1&keywords=Leighton+Chong
Hardcover 6 x 9 in
142 pages
ISBN 9781481759007

Softcover
6 x 9 in
142 pages
ISBN 9781481758994

It will also be available in one to two weeks on Barnes & Noble Books, and the major ebook sites for download.


E-Book
142 pages
ISBN 9781481759014

THE BLUE REVOLUTION: BENEFIT-FOR-HUMANITY POLICY OF IP SHARING

Realization of the vast potential for providing the basic necessities of energy, food and water for mankind’s needs from sustainable ocean resources production is a new frontier called the “Blue Revolution”. Because the oceans are a shared, open, and accessible planetary resource available to mankind worldwide, it is proposed that the benefits of sustainable ocean resources production be a shared benefit for humanity.


OTEC power generation in deep ocean waters can support integrated production of energy, food, water and marine bioproducts on ocean platforms or “plantships”. OTEC-powered plantships can be deployed in spacious ocean environments away from coastal recreational areas, fisheries, marine sanctuaries, ports, and navigation lanes. To lead the way to realization of the Blue Revolution, much research needs to be done, and the most important is to provide answers to questions of feasibility, best practices and technologies, and environmental impacts and benefits through research conducted under real conditions in the ocean.


Blue Revolution Hawaii (BRH) advocates the building of a Pacific International Ocean Station (PIOS) as the world’s first in-ocean platform to conduct feasibility research, technological testing and environmental assessments for ocean resources development in Hawaiian EEZ waters. The Hawaiian southwest EEZ has good deepwater thermal gradient conditions, ocean waters that support a wide range of fish and other marine life, and no conflicts with other international boundaries. Hawaii is home to pioneering work in OTEC, having the distinction of achieving the world’s first net-positive OTEC electricity generation in 1979. It is also home to NELHA, the world’s pre-eminent laboratory for deep ocean water processing of potable water and growing algae, fish, seafood, and other marine co-products.


PIOS is envisioned to be a large, semi-buoyant, artificial island platform engineered to be stable in harsh ocean conditions and weather. It is to have a “dryland” center platform surrounded by a retainer-wall lagoon irrigated by nutrient-rich deep ocean waters. The lagoon provides space for growing macroalgae, fish, and other seafood in nutrient-rich effluent waters. An OTEC plant would provide sufficient electrical capacity for a complete range of research activities, resource processing, and living/working quarters to accommodate international researchers, crew and visitors. PIOS in operation would host invited international research teams engaged in sponsored research projects. An international cooperative research management agency is to be formed or engaged to manage research activities on PIOS. PIOS success in R&D on OTEC-based production platforms could serve as a model for OTEC-based resources development in oceans worldwide.


Historically, knowledge of best practices and development of economical and efficient technologies have been led by advanced nations that have the technological and economic wherewithal to explore and innovate. But advanced nations have acted in their own self-interest by using such technological advances for their own military and strategic interests, and in the current era of globalized world trade, for market dominance and profit-making by their own industrial corporations. This has resulted in political (trade) conflicts and global inequity caused by the past zero-sum approach of self versus others interests.


For example, the so-called “Green Revolution” of the 1960s and 1970s greatly improved agricultural productivity but was dominated by advanced countries and industrial corporations controlling high-yield seeds, fertilizers, & pesticides for sale to individual farmers in poorer countries at high cost. Advanced medical and drug technologies represented another arena where advanced countries have controlled access to needed drugs and therapies to the detriment of those in need of them, such as access to affordable AIDS drugs in lesser developed countries of Africa and Asia.


Control of new technologies is obtained primarily through securing intellectual property rights (IPRs), mainly patents applied for in principal markets, by industrial companies that research and perfect such technologies. In knowledge-based economies, securing IPR rights is indispensable to protecting the owner’s market position, competitiveness, and ability to enforce a profit premium for legally protected products. However, access to such essential-to-life technologies developed by advanced countries would present a momentous challenge for lesser developed countries.


The oceans of the world are “shared” in the sense that ocean waters flow in a contiguous fluid body. What happens in ocean waters in one territorial jurisdiction is likely to have impacts in adjacent or even regional waters.


The oceans of the world are also “open”. Under the United Nations Convention on Law of the Sea (‘UNCLOS’) adopted in 1994, and since signed by 160 nations, the territorial jurisdiction of ocean-bordering countries extends 12 nautical miles from shore. Beyond 12 miles and up to 200 miles from shore, individual nations are recognized as having an Exclusive Economic Zone which they can regulate for exploitation or marine, mineral, and ocean energy resources. However, other nations have a right of transit, and can fish or exploit resources to the extent not fully utilized by the bordering nation. Under UNCLOS, the “high seas” beyond 200 miles from shore are deemed to be the “common heritage of humanity”, which no nation or entity can appropriate for its exclusive use.


Resources in the oceans of the world are “unowned” in the sense that the legal jurisdiction and ownership rights of ocean-bordering countries extend only to territorial waters to 12 nautical miles. Beyond that, ocean waters are unregulated by the ocean-bordering countries, except for the purposes of security, economic exploitation, and environmental protection provided in UNCLOS.


Consideration of sharing access to ocean resources knowledge and technologies should also take into account that, due to high capital costs in advanced countries, the development of ocean plantships is likely to take place first in the ocean waters of lesser developed countries where capital costs may be a fraction of advanced countries, and therefore lesser developed countries are likely to provide the location, capital cost advantages, and the physical ocean environment for such research. Further, due to the advanced countries having comparatively greater wealth to secure access to energy, food and water at world commodity prices, lesser developed countries would have a greater need to ensure secure and reliable access to life-sustaining necessities of energy, food and water.  Moreover, patent and other private ownership rights would likely be unenforceable in EEZ ocean waters since they are beyond national territorial boundaries.


It is therefore proposed that a “benefit-for-humanity” policy of IP sharing could be instituted for international cooperative research conducted in the ocean such as on the PIOS host platform.  International research teams invited to conduct research on the host platform may be asked to sign an international cooperative research agreement providing for the following:


1. Research results, data, and analysis, when completed and documented in correct and accurate form, are to be made accessible by publication on the host network for access by all other research teams. Within a short time window, say one month, to allow time for correction or revision or inclusion of other necessary materials, access to published research on the host network is to be opened to the World Wide Web. Such access would share the fruits of ocean research with all countries of the world and preclude any research party from patenting.

2. Any improvements derived from the results of ocean research may be patented in the home country of the improvement-inventing research team. Patenting in the inventor’s home country is permitted in order to preserve the inventor’s competitive position in their home country.

3. The international cooperative research agreement may also provide that the patentee of any improvements derived from the ocean research shall grant an open license for all to use the improvement freely in all other countries.


The proposed "benefit-for-humanity" policy of IP sharing of Blue Revolution technologies and methods could enable research teams of lesser developed countries to start on a path to technological parity in ocean resources production with advanced countries. Private companies can maintain their competitive positions in home markets by the exception of allowing home-country patenting of improvements derived from shared ocean research. Improvements made by private entities that are not based on shared ocean research can be patented as is now done conventionally. The proposed policy instituted by international cooperative research agreement on ocean platforms could provide a model for revamping the world IP system to better share access to life-sustaining technologies derived from ocean research, while preserving the competitive position of inventors through home-country IP ownership rights.