Supporting Canada’s green transition: the untapped potential of CIPO’s Green Technologies Program

Since at least 2009, Canada has consistently ranked among the top ten countries for patent filings related to climate change mitigation and adaptation technologies.¹ This is no surprise given Canada’s patent friendly courts and the multiple government incentives supporting the transition to greener technologies. In view of Canada’s current commitment to significantly reduce emissions in the coming years, this trend is likely to continue as the rate of innovation in this field is increasing at an unprecedented rate.

This article explores the Canadian Intellectual Property Office’s (CIPO) Green Technologies Program, a simple and cost-effective mechanism for fast tracking patent applications related to green technologies. It highlights the benefits of applying for this program, emphasizing how it can accelerate the patent grant process and the potential advantages for innovators in the green technology sector.

What is CIPO’s Green Technologies Program?

CIPO’s Green Technologies Program allows patent applications that relate to “green technology” to be fast-tracked at no additional cost (standard government fees for requesting advanced examination are waived - currently around $700 CAD²) so that innovators can obtain patents on these technologies much faster and without the usual delays.

Once the Patent Office processes a request for advanced examination of an application related to green technology, a first communication can be expected within three months³, in contrast with typical delays that tend to range between fourteen and twenty-four months⁴ from the time examination is initiated. In practice, it means that a patent can be granted in as little as twelve months from the time examination starts, potentially presenting a significant advantage depending on how the granted patent is eventually used.

How to use the program

Using the program is straightforward. Once an eligible application is identified, to benefit from the program, a letter must be submitted to the Patent Office that includes a request for advanced examination and a statement indicating that the patent application relates to technology that, if commercialized, would help to resolve or mitigate environmental impacts or to conserve the natural environment or natural resources. If the application is not yet published, a request for the application to be “laid-open” to public inspection will also need to be submitted.

Once the request is made and the statement is submitted, the Patent Office will grant accelerated examination without substantively reviewing the application to ensure that the statement is warranted.  For that reason, it is important for the applicant to ensure that the statement can legitimately be made, and thus that the application is eligible.

What applications are eligible?

Eligibility for consideration under this program is quite broad. As noted above, the requirements merely state that “the patent application relates to green technology that either helps resolve or mitigate environmental impacts or conserves the natural environment and resources”.⁵ Thus, as long as it can be reasonably established that the technology of a patent application, if commercialized, would achieve these goals in some manner, the request for advanced examination can legitimately be submitted.

While patent applications directed to solar panels, wind turbines and new processes for improving the efficiency of carbon capture would likely qualify under the program, many other innovations that are not traditionally considered green technologies could also qualify for the program due to their contribution to the environmental cause in various ways.

Some examples of technologies that may qualify for the program given their ability to mitigate environmental impacts and/or conserve natural resources include:

• an AI-based software control system for optimizing the operation of an HVAC system;
• more efficient food production methods through precision agriculture;
• industrial waste heat recovery technologies;
• alternatives to hazardous chemicals in industrial processes;
• AI-based software to optimize supply chain logistics to minimize transportation emissions;
• computer-vision methods to identify and quickly contain leaks in pipelines;
• packaging that extends food shelf life; and
• methods to reduce raw materials use in manufacturing, including in the packaging and textile industries.

The types of innovations that align with the program's broader goals of mitigating environmental impacts and resource conservation come from a wide range of industries, and these innovations may not always fit the traditional definition of “green technologies”.

Other mechanisms for accelerating examination in Canada

Other mechanisms for accelerating examination are available in Canada including the Patent Prosecution Highway (PPH) or the submission of a standard request for special order.

For example, examination of a Canadian patent application can be accelerated under the PPH provided substantive examination has not started in Canada and provided the claims in Canada correspond (or are amended to correspond) to claims allowed or granted in a corresponding patent application in a country with which the CIPO has a PPH partnership.

Alternatively, examination of an application can be accelerated by submitting a request for special order under paragraph 84(1)(a) of the Patent Rules even if examination has started provided a statement indicating that the failure to advance the application from its routine order will prejudice applicant’s rights and provided the required government fee is paid (currently around $700 CAD⁶).

Each mechanism for accelerating examination in Canada has its own eligibility requirements and advantages. Choosing the appropriate mechanism for your application will depend on the objectives sought and on your specific circumstances. 

Why should innovators consider CIPO’s Green Technologies Program?

Obtaining patents faster presents several advantages. Being granted a patent faster enables businesses, especially start-ups and scale-ups, to attract investments, as a granted patent may enhance the perceived value of the technology and reassure investors as to the level of exclusivity the new technology may be able to dictate in the market. Additionally, an expedited patent approval offers legal protections sooner, allowing the patent holder to address any infringing competitors more swiftly and potentially secure a stronger market position.

In addition, while patent applications need to comply with legal requirements for patentability, there seems to be a favorable bias for applications that qualify under this program. For example, in 2021, patent applications examined under this program had a 95% grant rate,⁷ compared to the 69% grant rate for standard patent applications,⁸ 85% for special order applications⁹ and 90% for PPH applications.¹⁰

Underutilization of CIPO’s Green Technologies Program

CIPO’s Green Technologies Program has been in place since 2011, yet its use by patent applicants has been surprisingly limited. Between 2011 and 2022, only 545 patents benefited from advanced examination under the program.¹¹ In contrast, in 2021 alone, 416 patent applications were accelerated by filing a request for special order, and 3000 applications were accelerated using PPH. Tens of thousands of patent applications are filed in Canada every year.¹² Given the broad scope of the program, many applications may legitimately qualify under the program.

Given the requirements to benefit from CIPO’s Green Technologies Program and the variety of patent applications accepted into the program, failing to consider this program could be a missed opportunity for some innovative companies.

Concluding remarks

The environment is likely to remain one of the top priorities of the world’s major economies for decades to come. The Paris Agreement, adopted in 2015 by 196 Parties at the UN Climate Change Conference (COP21) in Paris, established ambitious targets for emissions reductions. In this context, Canada committed to significantly reducing emissions, aiming for a 40-45% reduction below 2005 levels by 2030 and net-zero emissions by 2050.¹³

Achieving these targets will not happen on its own and will be highly dependent on innovation and economic growth. In addition to financial incentives, providing a favorable environment for innovators to secure and enforce strong Intellectual Property (IP) rights for the innovations resulting from R&D efforts will be key to continued success.

For patent applications that qualify under CIPO’s Green Technologies Program, the ease and simplicity of obtaining accelerated examination makes this program attractive for innovators seeking expedited patent protection in Canada to support their business goals. By offering accelerated patent approvals at no extra cost, the CIPO’s Green Technologies Program provides a clear advantage for innovators in green technology.

The preceding is intended as a thought leadership article on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

References