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


Queensland University of Technology

From the SelectedWorks of Matthew Rimmer

May 27, 2015

Intellectual Property and Biofuels: The Energy
Crisis, Food Security, and Climate Change
Matthew Rimmer, Australian National University College of Law
Griffith Hack

Available at: https://works.bepress.com/matthew_rimmer/236/

http://www.qut.edu.au/
https://works.bepress.com/matthew_rimmer/
https://works.bepress.com/matthew_rimmer/236/


1 
 

Intellectual Property and Biofuels: 

The Energy Crisis, Food Security, and Climate Change 

Matthew Rimmer, Mike Lloyd, George Mokdsi, Doris Spielthenner, and Ewan Driver* 

 

Abstract 

 

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

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

discussions in respect of energy independence, food security, and climate change. The first section of the paper 

provides a network analysis of patents in respect of biofuels across the three generations. It provides empirical 

research in respect of patent subject matter, ownership, and strategy in respect of biofuels. The second section 

provides a case study of significant patent litigation over biofuels. There is an examination of the biofuels patent 

litigation between the Danish company Novozymes, and Danisco and DuPont. The third section examines 

flexibilities in respect of patent law and clean technologies in the context of the case study of biofuels. In 

particular, it explores the debate over substantive doctrinal matters in respect of biofuels – such as patentable 

subject matter, technology transfer, patent pools, compulsory licensing, and disclosure requirements. The 

conclusion explores the relevance of the debate over patent law and biofuels to the larger public policy discussions 

over energy independence, food security, and climate change. 

 

Keywords: 

Patent Law, Biofuels, Energy, Food Security, Water Security, Biodiversity, Agriculture, Biotechnology, Clean 

Technologies, Renewable Energy, Climate Change. 

                                                           
* Dr Matthew Rimmer (BA/LLB ANU, Phd UNSW) is a Professor of Intellectual Property and Innovation 

Law at the Queensland University of Technology (QUT), Brisbane, Australia. This research was supported an 

Australian Research Council Future Fellowship on intellectual property and climate change.  

 Mike Lloyd, George Mokdsi, and Ewan Driver are all members of the Griffith Hack Group, and Doris 

Spielthenner is from Ambercite. This group conducted the network patent analysis in the first section of the paper. 

 The authors acknowledge Alison McLennan for her conversations on synthetic biology and biofuels. 



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Introduction 

 

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

inventor and patent holder - and the Otto car company exhibited a diesel engine, which ran on 

peanut oil (Tomes, Lakshmanan, and Songstad 2011, 5). Recognising the value of food crops 

for fuel, Diesel observed that “power can... be produced from the heat of the sun, which is 

always available for agricultural purposes, even when all natural stores of solid and liquid fuels 

are exhausted” (Goodall 2009, 166). Similarly, the car manufacturer,  Henry Ford, observed in 

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

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

rhapsodized: “There is fuel in every bit of vegetable matter that can be fermented.” (Goodall 

2009, 166). 

 

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

and classification of modern “biofuels”:  

 

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

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

sources can act as feedstock for these processes, including dedicated energy crops (such as grasses and 

trees), traditional crops (sugar cane and oilseed) as well as crop residues and degradable waste (for 

example, wheat straw, rice hulls, and organic waste). The resulting fuel can be used in cooking, heating, 

electricity generation and transport (Smith 2010, 15). 

 

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

biofuels “rely on food crops that boast readily accessible sugars, starches and oils as their 



3 
 

feedstock” (Smith 2010, 15). He noted: “The most common feedstocks are sugar cane… sugar 

beet, maize, wheat and other starchy cereals, such as barley, sorghum and rye” (Smith 2010, 

19). Smith defined second-generation biofuels as those which “rely on bio-chemical and 

thermochemical conversion” (Smith 2010, 19). Second-generation biofuels rely on feedstocks 

– such as “perennial grasses such as switchgrass, trees such as poplar or willow and residues 

and wastes derived from agricultural production” (Smith 2010, 20). Moreover, Smith noted 

that “third-generation biofuels focus on improving the feedstock” (Smith 2010, 21).  The third 

generation of biofuels has used algae, microalgae, and seaweed. There has been a discussion 

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

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

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

 

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

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

change and dwindling supplies of fossil fuels can be seen to have generated investment in fields 

such as biofuels, climate-ready crops and storage of agricultural genetic resources”.   In the 

United States, President Barack Obama has emphasized that biofuels are part of his energy 

independence policy: “Biofuels are an important part of reducing America’s dependence on 

foreign oil and creating jobs here at home” (The White House 2011). There has also been much 

interest in the use of biofuels in Canada (de Beer 2011), and South American countries, such 

as Brazil (La Rovere, Pereira, and Simões 2011).  In the Garnaut Review 2011, Ross Garnaut 

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

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

Biofuels Research Institute (Ferguson 2011). The Institute's work is designed to provide 

“support for the potential of next-generation biofuels to increase Australia's energy security 



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and diversify sources of liquid fuel supply” (Ferguson 2011). In the European Union, the 

European Commission has established a directive to promote the use of biofuels and other 

renewable fuels for transportation (European Commission 2013).  There has also been interest 

in biofuels in Africa (Matondi, Havnevik, and Beyene 2011; Juma 2011).  The Roundtable on 

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

the sustainable production of biomass and biofuels. 

 

Achim Steiner, Executive Director of the United Nations Environment Programme, observed 

in 2009: “Biofuels are neither a panacea nor a pariah but like all technologies they represent 

both opportunities and challenges” (United Nations Environment Programme 2009). The 

Nuffield Council on Bioethics reflected that biofuels have become part of a larger policy debate 

over the energy crisis, food security, biodiversity, and climate change. The Council observed 

that the hope was that biofuels would provide “a new source of income for farmers and revenue 

from ‘clean’ technology, as well as renewable – and therefore endless – sources of fuel, leading 

to far less greenhouse gas (GHG) emissions than fossil fuels” (Nuffield Council on Bioethics 

2011, xvii). The Council noted that investment in biofuels had been encouraged by “increasing 

worries over energy security in the face of growing demand, dwindling supplies of oil, and 

international conflicts and wars” (Nuffield Council on Bioethics 2011, xvii). Moreover, “the 

growing awareness of the dangers of global climate change reinforced the challenge to find 

alternatives to fossil fuels as the dominant form of energy” (Nuffield Council on Bioethics 

2011, xvii). 

 

Critics, though, have questioned whether biofuels should be classified as ‘renewable energy’ 

or ‘sustainable’. Tony Seba (2014) from Stanford University contends that biofuels are obsolete 

and uncompetitive in comparison to solar energy and wind power. He also argues that biofuels 

are water intensive and damaging to food security. Seba is also critical of government subsidies 

http://www.amazon.com/s/ref=ntt_athr_dp_sr_2?_encoding=UTF8&field-author=Kjell%20Havnevik&search-alias=books&sort=relevancerank
http://www.amazon.com/s/ref=ntt_athr_dp_sr_3?_encoding=UTF8&field-author=Atakilte%20Beyene&search-alias=books&sort=relevancerank


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of biofuels: “The only thing that’s renewable about the agricultural biofuels industry is the 

special-interest lobby groups that represents it in places like Washington, Brazilia, and 

Brussels” (Seba, 2014: 210). 

 

This article considers the various legal and political debates over patent law and biofuels, and 

the concomitant implications for energy independence, food security, and climate change. 

Smith has observed that biofuels are the subject of much debate: ‘Biofuels fire the imagination 

of policy-makers, entrepreneurs, researchers and governments because of the possibility of 

being all things to all people’ (Smith 2010, 6). He warns that biofuels also risk becoming 

‘objects of contestation, or ideas around which ideologies and politics are fought, much as 

agricultural biotechnologies were before them’ (Smith 2010, 6). The first section provides a 

network analysis of patents in respect of biofuels across the three generations. In particular, it 

highlights fundamental subject matter, clusters of biofuels, and influential patents. It also 

focuses upon the fragmented and diverse ownership in the field of patent law and biofuels. The 

second section looks at patent litigation over biofuels. As a case study, it considers the ongoing 

conflict between the Danish company Novozymes, and Danisco and DuPont in respect of 

biofuel patents. The third section examines patent law, policy, and practice in respect of clean 

technologies – focusing upon biofuels. In particular, it explores the debate over substantive 

doctrinal matters in respect of biofuels – such as patentable subject matter, technology transfer, 

patent pools, compulsory licensing, and disclosure requirements. The conclusion explores the 

relevance of the debate over intellectual property and biofuels to the larger public policy 

discussions over energy independence, food security, biodiversity, and climate change.  

 

A Network Analysis of Biofuels 

 



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In September 2010, the United Nations Environment Programme, the European Patent Office, 

and the International Centre for Trade and Sustainable Development published a landmark 

report on Patents and Clean Energy (Karachalios et al. 2010). The study emphasized: “Despite 

the importance attached to the role of intellectual property rights in the transfer of climate 

change technologies to developing countries, it is only recently that empirical research has 

begun to appear on the issue” (Karachalios et al. 2010, 14). The study stressed that “the absence 

of an evidence-based approach has fed into the rhetoric and stalemate in the climate change 

negotiations” (Karachalios et al. 2010, 14).  The report noted: “In order to move away from the 

abstract to an evidence-based approach, there is an urgent need for greater empirical analysis” 

(Karachalios et al. 2010, 14).  The study concluded: “In terms of building on the empirical data 

gathered thus far and to move the debate forward, there is a need for additional research” 

(Karachalios et al. 2010, 67). In this context, this chapter seeks to make an original contribution 

to the literature on patent law and clean technologies by providing a network analysis of biofuel 

patents – across three generations. 

 

A Literature Review of Patent Landscapes 

 

There have been a number of previous studies – often sector-specific and country-specific – 

which have sought to provide patent landscapes in respect of clean technologies.  

 

In a sophisticated discussion of methodological strengths and weaknesses, E. Richard Gold and 

Andrew Baker from McGill University review the use of patent landscaping as a means of 

understanding and analysing technology development, innovation policy and business strategy 

(Gold and Baker 2012). The pair commented that “patent landscaping is a method of 

understanding the interrelationship of data extracted from patent documents across a certain 



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dimension, be that technological, geographical, or company” (Gold and Baker 2012, 77). Gold 

and Baker observed: “While a potentially powerful tool, patent landscaping has, to date, been 

conducted largely on an ad hoc basis” (Gold and Baker 2012, 77). The Canadian researchers 

comment that two common problems in patent landscaping are the failure to disclose 

justifications for methodological choices, and drawing conclusions from analytical methods 

that do not meet the norms for evidence-based policy making. Gold and Baker comment that 

“patent landscaping has come of age with the availability of large patent databases and the 

increasing sophistication of search and analytical tools” (Gold and Baker, 2012, 97). The 

scholars made a number of suggestions as to how to harmonise and standardise the use of patent 

landscaping methodologies in the future. 

 

In 2007, Professor John Barton offered an analysis of patent law and biofuel technologies 

(Barton 2007). He commented: “Patent issues are likely to arise primarily with the newer 

technologies, because the older ones are long off-patent, and there is enormous patenting 

activity in the new areas” (Barton 2007, 13–14). Barton observed: “There also appears to be a 

technology race in the use of algae as a source for fuel” (Barton 2007, 13–14). He also 

commented that “patents are likely to apply to the technologies developed under government 

support, as will the licensing restrictions associated with US government-sponsored 

technology” (Barton 2007, 13–14). 

 

John Lazarus, patent expert for Foley Lardner, has conducted annual surveys of patents in 

respect of clean technologies (Lazarus 2009; Lazarus 2010; Lazarus 2011). One of his sub-

categories of clean technologies is for the collective group of biomass, biogas and biofuel. In 

2010, John Lazarus observed of biofuels: “The biomass/biogas/biofuel energy field in 2009 

accounted for approximately six percent of patents in the cleantech landscape, which is a slight 

decrease from 2008” (Lazarus 2010). He suggested: “The biomass/biogas/biofuel technology 



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area having the greatest potential white space under this indicator is ‘system/process for making 

a biofuel’” (Lazarus 2010). Lazarus commented: “The biomass/biogas/biofuel technology area 

for which patent protection was most actively obtained in both 2009 (based upon number of 

claims granted) is ‘ethanol production from biomaterial,’ which was closely followed by 

‘system/process for making a biofuel’” (Lazarus 2010). He observed: “Individual inventors 

accounted for approximately 25 percent of the biomass/biogas/biofuel patents, indicating a 

fairly significant scope of new biomass/biogas/biofuel developments that may be available for 

access by licensing or acquisition” (Lazarus 2010). He also commented: “U.S. entities obtained 

approximately 77 percent of the biomass/biogas/biofuel patents, with a majority of those 

patents going to entities in the Midwest” (Lazarus 2010).  

 

Lazarus commented that, given the statistics on examination of biofuel patents, “it may be 

advantageous to seek accelerated examination of particularly promising new 

biomass/biogas/biofuel technology developments” (Lazarus 2010). A number of jurisdictions 

around the world have introduced fast-track mechanisms in respect of the examination of clean 

technologies. San Diego patent attorney, Eric Lane, has argued that there should be an 

international system established to facilitate fast-track examination of patent applications for 

clean technologies (Lane 2012a). He envisages that the establishment of a “Global Green 

Patent Highway would be a powerful mechanism for fostering green innovation and should be 

employed as a tool in the battle to combat climate change” (Lane 2012a, 1170). 

 

In 2008, Michael Ward, and Timothy Hall, lawyers at Morrison and Foerster, observed that 

“the biofuel patent landscape is increasingly crowded and fragmented” (Ward and Hall 2008). 

The pair noted: “A recent patent study found that there are at least 850 biofuel patents and 

pending applications in the United States, Europe, and Japan, divided among 285 companies, 



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with only 35 companies owning more than five patents” (Ward and Hall 2008). Ward and Hall 

concluded that the patent thickets for biofuels raised issues in respect of the freedom to operate: 

“In such a congested intellectual property environment, freedom-to-operate issues become 

crucial to any entity in the space” (Ward and Hall 2008). 

 

The trilateral study by the United Nations Environment Programme, the European Patent 

Office, and the International Centre for Trade and Sustainable Development provides a broad 

overview of patent law and clean technologies (Karachalios et al. 2010). The study provides 

some useful information about patents in respect of biofuels. 

 

In a summary of its larger study of intellectual property and climate change, the Third World 

Network charted the patent field in respect of biofuels (Shashikant and Khor 2010, 26): 

 

Over the last six years, a total of 2,796 biofuel-related patents were published in the US, with the number 

increasing by over 150% in each of the past two years. Analysis of biofuel-related patents published in 

2006 to 2007 revealed the following breakdown of patents: biodiesel (299), agricultural biotechnology 

(110), ethanol and other alcohols (42), enzymes (35) and biomass (41). Further broken down by 

ownership entity, the patents published in the selected technologies in 2006 to 2007 were 57% owned by 

corporate entities, 11% owned by universities or other academic institutions and 32% undesignated (i.e., 

the patent applications do not list the patent owner). Worldwide, the highest number of biofuel patents 

in 2006 to 2007 originated from the US (184), Germany (34), Japan (14), Italy (10), and France (10). 

 

The study suggested that “as venture funding and government funding increase, the number of 

biofuel patents will continue to grow steadily” (Shashikant and Khor 2010, 26). The report 

maintained: “Future legislation directed towards climate change is also expected to strongly 

influence biofuel patents” (Shashikant and Khor 2010, 26). 

 



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Sandra Thompson has also undertaken a number of patent studies of biofuels for Industrial 

Biotechnology (Thompson 2010a; Thompson 2010b; Thompson 2010c). 

 

Network Patent Analysis 

 

A network patent analysis is a patent analysis process, which uses citation connections between 

patents to both group and rank patents. A network patent analysis can be deployed to analyse 

citation connections in order to determine the most important patent groupings and patents. 

Ambercite and Griffith Hack comment that a “network patent analysis” consists of “a set of 

analytical and visualisation tools that use citation links to both group patents of similar 

technologies and rank patents” (Lloyd, Spielthenner, and Mokdsi 2011).  They maintain that 

“[l]arge numbers of patents can be analysed to ensure statistical reliability, with up to 250,000 

patents and one million citation linkages being analysed in some studies” (Lloyd, Spielthenner, 

and Mokdsi 2011).   

 

The technique of network patent analysis has been previously deployed in a number of 

contexts. The tool has been applied to the contested field of the smartphone patent wars (Lloyd, 

Spielthenner, and Mokdsi 2011), and has been used in the medical field to provide an overview 

of the leading patents, research and applicants in respect of patenting trends for the treatment 

of Alzheimer’s disease (Lloyd, Mokdsi, and Spielthenner 2012). In the field of patent law and 

clean technologies, network patent analysis has been a powerful tool to understand the conflicts 

over hybrid car technologies (Lloyd and Blows 2009) – in particular, the dispute between Paice 

and Toyota (Lloyd and Spielthenner 2011). 

 



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In this study, the team sought to apply the methodologies and analytical tools of network patent 

analysis to the topic of biofuels. First, the research team conducted an initial traditional patent 

search, such as a keyword of International Patent Classification code search. This produced a 

set of 11,129 starting patents. Second, the research team added to the dataset all patents which 

were connected by citation to the starting patents, and were not already within the list of starting 

patents. There were 12,888 additional patents found through this method. This led to a total of 

24,017 patents in the combined dataset. Third, the researchers applied Network Patent Analysis 

to this dataset and obtained 2,457 central highly connected patents.  Fourth, the researchers 

prepared network diagrams based on these central patents. Fifth, the researchers categorised 

the patent records according to the generation of biofuels using keyword and International 

Patent Classification criteria.i The research team also cleaned up the assignee names using 

manual and automated techniques. 

 

There are a number of methodological limitations to the patent landscape and the network 

analysis. First, the search of the collections took place on June 5th, 2012. The results of the 

search are dependent upon the records available at the time the search was conducted. Second, 

the applications are generally only published 18 months after they are first filed and it may take 

some additional time for applications to be reviewed and indexed for availability via the various 

collections. Third, there may be errors or omissions in the databases which prevent the location 

of potentially relevant records.  Finally, the searches could only identify records indexed to an 

International Patent Classification mark, or related to other search criteria. 

 

Network Patent Analysis: Generations 

 



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There has been much debate about the incidence of patent applications in technological fields. 

There has been much discussion about the issue of “patent thickets”.  Carl Shapiro famously 

described a “patent thicket” as a “dense web of overlapping intellectual property rights that a 

company must hack its way through in order to commercialise new technology” (Shapiro 2001, 

119). Patent offices have been grappling with the phenomenon (European Patent Office 2012). 

The Nuffield Council on Bioethics commented: “Given the range of technologies likely to be 

involved in the production of new biofuels, the area seems particularly prone to patent-stacking 

and patent-thickets” (Nuffield Council on Bioethics 2011, 153). Michael Heller has used the 

term “the tragedy of the anticommons” to discuss the situation where multiple, overlapping 

patent rights block access to patented inventions (Heller and Eisenberg 1998; Heller 2008; 

Heller 2009). David Lametti has questioned whether the language about the “tragedy of the 

anticommons” is helpful or useful in describing patent landscapes or networks (Lametti 2013). 

Some commentators have also sought to develop language to describe situations where is an 

absence of patents. John Lazarus refers to “white spaces” where there are fields of technology 

with little or no patent applications (Lazarus 2009; Lazarus 2010; Lazarus 2011). 

 

The patent landscape and the network patent analysis conducted in this study highlights that 

the field of biofuels is crowded with patents. The initial patent landscape review identified 

11,129 patents in this area. The majority of the patents were filed after the year 2000, with an 

acceleration in patent filings after 2005, building up to a peak in 2007. However this growth 

was not evenly split between the three generations of biofuels. Keywords were used to try to 

assign the different patents to the three Generations, and this was used to classify almost 8,000 

of the 11,129 patents by generation.  This can be seen in Table 1. 

 



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Table 1 – Outcomes of classification of biofuels into different generations 

Row Labels Count of Patent Number 

1st Generation 4,710 

2nd Generation 2,907 

3rd Generation 350 

Other 3,162 

Total 11,129 

 

Clearly, when separated into generations, the first generation of biofuels is the most well 

represented in terms of patent filings. The patent register is crowded and cluttered in this sector. 

The second generation of biofuels is also represented by a significant number of patent filings. 

Patent filings relating to the third generation of biofuels are still only lightly represented. It is 

worth noting that there were a number of biofuels patents (3,162) which did not fit into the 

generation-based classifications. Biotechnology-based biofuels would also appear to be under-

represented thus far in patent filings and could be an area of significant future patenting activity. 

 

In his book, A Blueprint for a Safer Planet, Lord Nicholas Stern from the United Kingdom has 

argued that research and development should be focused upon later generations of biofuels, 

given the impact of the first-generation of biofuels upon food security and greenhouse 

emissions (Stern 2009, 166–7). The environmental leader and former United States Vice 

President, Al Gore, has observed: “The second generation for producing ethanol - when it 

becomes commercially available - has a significant advantage over the first generation 

technology: instead of using food crops, it will make liquid fuels from perennial grasses, fast-

growing trees, and waste streams with a high cellulose content” (Gore 2009, 123; see also Gore 

2013). Moreover, there is a third-generation of biofuels being developed by enterprising 

biotechnology companies. Gore reflected that “the main focus of the third generation is end 

products that are superior to ethanol, including new molecules (like biobutanol) that can be 



14 
 

mixed directly with gasoline and diesel, eliminating blending problems” as well as “the 

production of transportation fuel from algae” (Gore 2009, 129).   

 

Network Patent Analysis: Clusters 

 

The patents connected by citation to the original data set, but not in the original data set, led to 

a total of just over 24,000 patents. The patents were clustered using the Network Patent 

Analysis process (represented in Figure 1). The Network Patent Analysis identified the most 

highly connected 2,457 patents, the vast majority which fell into 21 clusters, along with 568 

broker patents (where there was no strong allegiance to any of the clusters).  

 

Table/ Figure 1. Biofuels Network Patent Analysis 

 



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The biofuels patents can be further broken into sub-categories. As can be seen in Figure 1, the 

clusters can be grouped into three main areas: biodiesel (Table 2); biogas (Table 3); and 

cellulosic biofuels and by-products (Table 4). 

Table 2 – Clusters found in the Biodiesel Grouping of clusters 

 

Row Labels 

(number of 

patents in 

cluster) 

Cluster name 
Leading 

patent 
Title and owner of leading patent 

Owner of Strongest 

patent portfolio within 

cluster (% of cluster 

value) 

A 

(489) 

Esterification 

(1999) 

US5525126 

(1994) 

 

Process for production of esters for use 

as a diesel fuel substitute using a non-

alkaline catalyst, Agricultural 

Utilization Research Institute, US 

UOP, owned Honeywell, 

US, 

(20%) 

D 

(155) 

Biofuels from 

Algae (2004) 

US8137555 

(2011) 

Methods of and systems for producing 

biofuels, Haliae, US 

Haliae, US, 

(31%) 

F 

(89) 

Biodiesel 

Purification 

(1991) 

US7998225 

(2007) 

Methods of purifying biodiesel fuels, 

Scott Powell, US, 
Scott Powell, US, (45%) 

G 

(80) 

Chlorohydrin 

Production  

(1994) 

US8106246 

(2011) 

Process for the manufacture of 

dichloropropanol by chlorination of 

glycerol, Solvay, Belgium 

Solvay, Belgium, (62%) 

L 

(45) 

Hydrodynamic 

cavitation of 

biodiesel (1996) 

US7754905 

(2008) 

Apparatus and method for producing 

biodiesel from fatty acid feedstock, 

Arisdyne Systems Inc, US 

Five Star Technologies, 

US, (29%) 

O 

(31) 

Production of 

algae (1993) 

US5534417 

(1994) 

Microorganism growth apparatus, 

University of Ben Gurion, Israel 

Algae Systems, US, 

(18%) 

Q 

(24) 

Beta-carotene as 

a fuel additive 

(1992) 

US5160506 

(1990) 

Liquid fuel mixture, method for is 

production, and its use for two stoke 

engines, Schure and Werner, Germany 

Oryxe Energy 

International, Inc, US, 

(52%) 

S 

(18) 

Biodiesel as a 

fuel additives 

(1994) 

EP0608149 

(1994) 
Fuel additives, Exxon Mobil, US Exxon Mobil, US, (26%) 

T 

(17) 

Centrifugal 

separation of 

fluids (1996) 

US7775961 

(2006) 

Microwave assisted centrifuge and 

related methods, Battelle Energy 

Alliance, US 

Battelle Energy Alliance, 

US, (19%) 

 



17 
 

Table 3 – Clusters found in the Biogas Grouping of clusters 

Row Labels 

(number of 

patents in 

cluster) 

Cluster name 
Leading 

patent 

Title and owner of leading 

patent 

Owner of 

Strongest patent 

portfolio within 

cluster (% of 

cluster value) 

B 

(329) 

Bioenergy from 

liquid waste (1992) 

US8156662 

(2009) 

Systems for prevention of HAP 

emissions and for efficient 

drying/dehydration processes, 

EarthRenew, US 

EarthRenew, US, 

(27%) 

E 

 (93) 

Electrolytic 

treatment of effluent 

(2000) 

US8075750 

(2010) 

Electrolytic cell and method of use 

thereof, McAlister Technologies, 

US 

McAlister 

Technologies, US, 

(32%) 

I  

(63) 

Enzymes for biofuel 

cells (1996) 

US7638228 

(2003) 

Enzyme immobilization for use in 

biofuel cells and sensors, 

University of St Louis, US 

University of St 

Louis, US, (24%) 

J 

 (53) 
Gas treatment (1999) 

US5321946 

(1992) 

Method and system for a 

condensing boiler and flue gas 

cleaning by cooling and 

liquefaction, Fawzy Abdelmalek, 

US 

SustainC, US, 

(39%) 

K (47) 
Fuel injectors for 

biofuels (1995) 

US8074625 

(2010) 

Fuel injector actuator assemblies 

and associated methods of use and 

manufacture, McAlister 

Technologies, US 

McAlister 

Technologies, US, 

(73%) 

M  

(36) 

Sequestration of CO2 

(2006) 

US8006446 

(2010) 

CO2-sequestering formed building 

materials, Calera Corp, US 

Calera Corp, US, 

(55%) 

N  

(34) 

Hydrogen 

purification (2001) 

US6221117 

(1999) 

Hydrogen producing fuel 

processing system, IdaTech LLC, 

US 

IdaTech LLC, US, 

(73%) 

R  

(21) 

Production of syngas 

from biomass (1996) 

US4822935 

(1987) 

Hydrogasification of biomass to 

produce high yields of methane, 

Donald Scott, Canada 

University of 

California, US, 

(56%) 

 

Table 4 – Clusters found in the Biogas Grouping of clusters 

 

Row Labels 

(number of 

patents in 

cluster) 

Cluster name 
Leading 

patent 
Title and owner of leading patent 

Owner of Strongest 

patent portfolio 

within cluster (% of 

cluster value) 

C 

(161) 

Bio-ethanol from 

fibrous waste 

(1997) 

US7708214 

(2006) 

Fibrous materials and composites, 

Xyleco, US 
Xyleco, US, (58%) 

H 

(77) 

Making 

precipitated 

cellulose (1994) 

US4145532 

(1997) 

Process for making precipitated 

cellulose, Akzona, US 

Weyerhaeuser, US, 

(41%) 

P 

(27) 

Solid fuel from 

biomass (1986) 

US4532873 

(1984) 

Suspension firing of hog fuel, other 

biomass or peat, Weyerhaeuser, US 

Weyerhaeuser, US, 

(27%) 

 



18 
 

There were also 568 broker patents, which are patents not exclusively associated with any 

single cluster (see Table 5). 

Table 5 – Broker Patents 

Z 

(568) 

Broker 

patents 

(1997) 

US8022257 

(2009) 

Methods for producing polyols using crude 

glycerin, University of Ohio, US 

ConcocoPhillips, 

US (18%) 

 

Network Patent Analysis: Ownership 

 

The patent landscape and network patent analysis highlights a diversity of ownership in respect 

of patents and biofuels (Table 6). There is no single dominant company, or even leading group 

of companies. The leading owner, Roy McAlister and McAlister Technologies of the United 

States, held 119 patents. The Belgian company Solvay held 70 patents, and the University of 

California held 64 patents.  

 

Table 6 – Leading owners of biofuels 

Owner 

Number of patents in 11,129 

biofuel patent search 

McAlister Technologies/Roy McAlister (US) 119 

Solvay (Belgium) 70 

University of California (US) 64 

University of Tsinghua (China) 58 

Bekon Energy Technologies (Germany) 57 

Sunho Biodiesel (Taiwan) 55 

UTS Umwelt (Germany) 55 

Chevron (US) 44 

UBE Industries (Japan) 42 

UPM Kymmene (Finland) 42 

 



19 
 

There is a mixture of private and public ownership. In terms of private companies, there is a 

mixture of energy companies, agricultural companies and biotechnology companies making 

filings in respect of biofuels patents. There is also evidence that fossil fuel companies such as 

Chevron have been moving into the field of alternative fuels, such as biofuels. The United 

States Government and United States universities are well-represented in the patent filings. 

This is to be expected given the investment by United States governments in respect of biofuels. 

 

Network Patent Analysis: Priority Countries and Filing Countries 

 

In terms of the patent landscape, the national affiliations of the patent applications are striking. 

There is still a great diversity in terms of priority countries and filing countries for biofuels 

patents (see Tables 7 and 8). The United States, China, members of the European Union, Japan 

and South Korea figure prominently in the statistics. 

 

Table 7. Biofuel Patents: Priority Country 

Age band 2003-2012 

Row Labels Count Position 

United States 4179 1 

China 2209 2 

Germany 1693 3 

Japan 1021 4 

World Intellectual Property Office 828 5 

Korea (South) 523 6 

European Patent Office 476 7 

France 398 8 

Great Britain 254 9 



20 
 

Brazil 218 10 

 

Table 8. Biofuel Patents: Filing country 

  

Age band 2003-2012 

Row Labels Count Position 

United States 3038 1 

China 2337 2 

World Intellectual Property Office 2191 3 

Germany 966 4 

European Patent Office 927 5 

Japan 878 6 

Korea 528 7 

Canada 283 8 

India 244 9 

Brazil 225 10 

 

There has been much competition and rivalry between the United States and China in respect 

of clean technologies. In his State of the Union address in 2013, President Barack Obama 

commented: “As long as countries like China keep going all in on clean energy, so must we” 

(Obama 2013b). The field of biofuels is worth considering in this respect. The study undertaken 

identifies the leading priority countries for identified biofuel patents from 2003 to 2011. The 

United States leads until 2009 – when it is overtaken by China, and relegated to second position. 

China has consistently risen in terms of its patent filings – from third in 2006 to second in 2007 

and first in 2009. Germany slips in its position from second in 2006 to third place for the 

following years. 

 



21 
 

This trend is perhaps reflective of larger developments in respect of patent filings. In 2012, the 

World Intellectual Property Organization reported that China led the way generally in patent 

applications in 2011 (World Intellectual Property Organization 2012; Saez 2012). The World 

Intellectual Property Organization found that China had 526,412 patent applications, followed 

by the United States with 503,582 applications, and 342,610 for Japan. 

 

Litigation Over Patent Law and Biofuels 

 

While there may be a diversity of patent ownership in respect of biofuels, the field has not 

necessarily been a harmonious and peaceful area. There has been significant patent litigation 

in respect of biofuels, despite some predictions to the contrary by commentators such as John 

Barton (Barton 2007).  Eric Lane has commented: “Though we are seeing new innovations 

nearly every day in second-and third-generation biofuels such as cellulosic ethanol and algae-

based biodiesel, it is the first-generation biofuel technology that is scalable and widely 

commercialized” (Lane 2011, 112). He commented: “Accordingly, companies that have 

developed and implemented technology for processing first-generation biofuels are starting to 

enforce their patents” (Lane 2011, 112). There have been a number of prominent disputes in 

respect of patent law and biofuels. Such disputes have raised questions of validity, patent 

infringement and patent remedies. 

 

Litigation Between Novozymes and Danisco 

 

The Danish company, Novozymes, is the holder of a large patent portfolio – including in the 

area of biofuels: “Biofuels are currently the only realistic option proven to successfully 

accomplish large-scale CO2 emission reductions while creating jobs, boosting economic 



22 
 

growth, and improving energy security” (Novozymes 2013).  Novozymes is the patent holder 

of United States Patent No. 7,713,723, which is entitled Alpha amylase mutants with altered 

properties (Thisted et al. 2009). The patent application reads: “The variants of the invention 

are suitable for starch conversion, ethanol production, laundry wash, dish wash, hard surface 

cleaning, textile desizing, and/or sweetener production.” 

 

In 2010, the company sued Danisco, along with Genencor International Wisconsin, for patent 

infringement of United States Patent No. 7,713,723 (Novozymes A/S v Danisco A/S 2010a). 

Formed in 1989 from an industrial merger, Danisco is a Danish company which focuses upon 

food production, industrial enzymes, and other bioproducts. Danisco was acquired by E.I. 

DuPont de Nemours & Co (“Danisco”) in 2011. In response to Novozymes’ infringement 

complaint, Danisco questioned the validity of the patent – particularly in terms of whether it 

provided sufficient written description of the claims (Novozymes A/S v Danisco A/S 2010b). 

Danisco also denied that there had been any patent infringement. The company also raised 

equitable defences under the doctrines of prosecution laches and prosecution history estoppel. 

 

Novozymes v Danisco: The 2011 Ruling on Patent Infringement 

 

In 2011, District court judge Barbara Crabb noted that the parties were competitors in the 

production and sale of enzymes called alpha-amylases used in making ethanol and other 

products (Novozymes A/S v Danisco A/S 2011a). Focusing upon the question of written 

description, Crabb J. was unconvinced by Danisco's attack on the validity of the patent: 

“Although I still have doubts that the specification in the '723 patent provides an adequate 

written description for the claims, I conclude that defendants have not met their burden to prove 

by clear and convincing evidence that the '723 patent is invalid as a matter of law” (Id. at p. 2). 

http://www.danisco.com/wps/wcm/connect/www/corporate


23 
 

The judge came to the reluctant conclusion: “It is not without hesitation that I am denying 

defendants' motion” (Id. at p. 11). She worried: “Plaintiffs do not contradict defendants' 

observation that, if plaintiffs' position is accepted, it means that plaintiffs disclosed 8.589 x 

1042 possible inventions in their specifications” (Id.). She concluded nonetheless that “a 

reasonable jury could conclude that the written description is adequate under facts in similar 

cases” (Id. at p. 13). The judge wondered whether the problem was really a question of 

enablement, rather than one of written description. 

 

At the next stage of the proceedings, the judge considered questions of patent infringement, 

and allegations of inequitable conduct relating to inventorship and prosecution laches. The 

judge held that “[t]here is no dispute that the accused products meet the remaining limitations 

of the asserted claims” (Novozymes A/S v Danisco A/S 2011b at p. 30). The judge ruled: 

“Accordingly, I conclude that plaintiffs are entitled to summary judgment on the issue of 

infringement with respect to all of the accused products with the exception of the "whole broth" 

products, which do not meet the ‘isolated variant’ limitation” (Id.). 

 

Novozymes v Danisco: Patent Remedies 

 

On 26 October 2011, the jury in the United States District Court for the Western District of 

Wisconsin awarded damages to Novozymes for patent infringement (Novozymes A/S v Danisco 

A/S 2011c). The jury held that Novozymes had lost $8,151,000 USD on its sales of Liquozyme 

products as a result of Danisco’s infringement of the patent.  Furthermore, the jury ruled that 

Novozymes lost $8,508,500 USD on its sales of glucoamylase as a result of Danisco’s 

infringement of the patent. Moreover, the jury held that $1,560,000 USD would constitute a 

reasonable royalty to Novozymes for other lost sales resulting from Danisco’s infringement of 



24 
 

United States Patent No. 7,713,723. The jury also found that Novozymes had proven by clear 

and convincing evidence that Danisco’s infringement of the patent was willful. However, the 

jury did not find that Novozymes had proven infringement of Danisco’s whole broth products. 

So, in total, the jury awarded Novozymes $18.3 million USD in the Danisco trial over enzymes 

(Chopping, 2011; and Decker and Sulugiuc, 2011). The decision highlighted a longstanding 

debate of whether it is appropriate for juries to play such a significant role in patent disputes in 

the United States (Rimmer 2002; Miller 2004; Duffy and Lemley 2012) and raised questions 

about the appropriateness and proportionality of remedies in patent matters. 

 

Novozymes v Danisco: 2012 Ruling on Patent Validity 

 

On 4 May 2012, Barbara Crabb of the United States District Court for the Western District of 

Wisconsin ruled against Novozymes in respect of the validity of the patent (Novozymes A/S v 

Danisco A/S 2012). She commented that “the parties in this case have debated tenaciously 

many issues of infringement, invalidity and damages, but the focal point has always been the 

adequacy of the written description for the ‘723 patent” (Id. at p. 2). Crabb J. reflected: “Since 

the beginning of the case, I have questioned the validity of the patent in this respect . . . Having 

reviewed the evidence at trial, the developing case law on this issue and the parties’ arguments 

in their post-verdict motions, I am persuaded that defendants have proven by clear and 

convincing evidence that the claims of the ‘723 patent are invalid as a matter of law” (Id. at pp. 

2–3). Accordingly, Crabb J. vacated the judgment and instructed the clerk of court to enter 

judgment in the favour of the defendants, Danisco.  

 

Novozymes v Danisco: United States Court of Appeals for the Federal Circuit 

 



25 
 

Novozymes appealed against the decision to the United States Court of Appeals for the Federal 

Circuit (Novozymes 2012). Novozymes’ general counsel Mikkel Viltoft observed: “We 

disagree with the decision and will file an appeal to the United States Court of Appeals for the 

Federal Circuit . . . Novozymes will continue to protect and defend its intellectual property 

rights” (Id.). Oral argument was heard in the dispute in Novozymes A/S. v DuPont Nutrition 

Biosciences on 5 February 2013 (Novozymes A/S. v DuPont Nutrition Biosciences 2013). The 

judges were the experienced combination of Rader CJ, Schall and Bryson JJ.  

 

For the majority, Schall J held that the patent claims were invalid because of the failure to meet 

the written description requirement. In its analysis, the judge held “that no reasonable jury 

could find that the claims of the '23 patent meet the written description requirement of § 112, 

¶ 1, and that the district court therefore correctly entered judgment as a matter of law 

invalidating those claims (Novozymes A/S. v DuPont Nutrition Biosciences 2013: 1346).” The 

judge held: “In our view, this case is very analogous to University of Rochester, where the 

patent specification failed to disclose any compounds that could be used in the claimed 

methods, which required administering a drug having a certain selective activity (inhibiting 

PGHS–2 activity in a human host).” (Novozymes A/S. v DuPont Nutrition Biosciences 2013: 

1350). The judge concluded: “In sum, we agree with the district court that no reasonable jury 

could conclude that the 2000 application provides adequate written description to support the 

later-filed claims of the '23 patent” (Novozymes A/S. v DuPont Nutrition Biosciences 2013: 

1351). 

 

Rader CJ dissented: ‘In conclusion, the jury received expert testimony, heard from skilled 

protein engineers, reviewed visual aids and publication excerpts, and examined the patent 

document as guided by those skilled in the art, over an eight day trial’ (Novozymes A/S. v 



26 
 

DuPont Nutrition Biosciences 2013: 1352). The judge argued: ‘The jury was given a special 

verdict form asking whether DuPont had proven by clear and convincing evidence that the 

claims at issue were invalid for lack of written description’ (Novozymes A/S. v DuPont 

Nutrition Biosciences 2013: 1352). His Honour maintained ‘The jury answered in favor of 

Novozymes, and substantial evidence supports this determination’. Rader CJ concluded: 

‘Therefore, I would reverse the grant of judgment as a matter of law and reinstate the jury's 

verdict’ (Novozymes A/S. v DuPont Nutrition Biosciences 2013: 1352). 

 

DuPont Biofuel Solutions (2013) was delighted by the victory over Novozymes. Soonhee Jang, 

vice president, IP Strategy and Chief IP Counsel, DuPont Industrial Biosciences, said that “the 

Court of Appeals recognized our rights in the marketplace as a true innovator providing 

customers with choices.”  

 

A rehearing en banc by the United States Court of Appeals for the Federal Circuit was denied 

in October 2013. 

 

Other Litigation 

 

There is other biofuels-related patent litigation involving Danisco and Novozymes across a 

number of jurisdictions. 

 

There have been other actions on foot in the United States. In August 2012, Danisco sought a 

declaration in the Northern District of Iowa and the Northern District of California that the 

company’s Rapid-Starch alpha-amalyse products did not infringe a Novozyme patent, and that 

the patent is invalid, in any case (Danisco US Inc. v Novozymes A/S). The court dismissed the 



27 
 

case in 2013, holding that there was no justiciable controversy between the parties because 

Novozymes had not engaged in any affirmative acts to enforce its patent rights against Danisco 

(Lane 2013). 

 

In the United States, Novozymes also sued Illinois enzyme distributor, CTE Global, for patent 

infringement. The parties settled the lawsuit in 2012, and the court entered a consent judgment 

and a permanent injunction ending the lawsuit (Lane 2012b). 

 

Such infringement proceedings are not limited to the United States.  In the European Union, 

there has been complex patent litigation between Novozymes and Danisco in relation to patents 

on animal feed (Bausch and Eitle 2012).  There has also been significant patent litigation 

between Novozymes A/S and Danisco A/S over inventions relating to foodstuffs in the Full 

Court of the Federal Court of Australia in 2013 (Novozymes A/S. v Danisco A/S. 2013). There 

has been conflict in the Australian Patent Office in 2013 between Novozymes A/S and 

Genencor (Novozymes A/S v Genencor International, Inc.). Novozymes A/S has also opposed 

patent applications by North Carolina State University and Bioresource International in the 

Australian Patent Office (Novozymes A/S v North Carolina State University and Bioresource 

International, Inc.). 

 

There have been other significant skirmishes in respect of patent law and biofuels. There has 

been a significant patent war between the advanced biofuels company Gevo and the BP-

DuPoint joint venture, Butamax Advanced Biofuels (Butamax Advanced Biofuels LLC and E.I. 

Dupont de Nemours and Co. v Gevo Inc. 2012; see also Lane 2012b). There have been at least 

17 patents at issue in this conflict. The biofuels patent war continued in 2013 (Lane, 2014). 

 



28 
 

In the 2012 case of Neste Oil, OYJ v Dynamic Fuel LLC., Neste Oil has complained in the 

United States District Court for the District of Delaware of direct and induced patent 

infringement of a United States patent relating to a “process for the manufacture of diesel range 

hydrocarbons” (Neste Oil, OYJ v Dynamic Fuel, LLC). In 2013, the court stayed the biodiesel 

lawsuits, pending the re-examination of the asserted patents (Lane, 2014). There have also been 

a number of disputes in respect of trade secrets.ii 

 

In 2013, Novozymes filed a lawsuit in the United States District Court for the Eastern District 

of Missouri, accusing Boli Bioproducts, a Missouri company, of infringing U.S. Patent No. 

6,255,084 (Novozymes A/S v Boli Bioproducts USA LLC; Lane, 2014). 

 

In the future, there may well be further conflict over patents in respect of first generation 

biofuels. Such litigation may lead to consolidation of market ownership and dominance in 

respect of biofuels. It can be anticipated that there will be litigation in respect of the second 

and third generations of biofuels, as technologies in those sectors mature and grow in influence.    

 

In addition to patent law, a number of other species of intellectual property can be deployed to 

address biofuels. Trade secrets, plant breeders’ rights (Rimmer 2012a), and trade-marks can 

also be invoked to provide intellectual property protection in relation to biofuels. The question 

of eco-labelling deserves further consideration. The Roundtable on Sustainable Biomaterials 

has been focused on the use of trade marks to certify the environmental impact of biofuels. 

Such labelling could help differentiate between sustainable biofuels, and those which have an 

adverse impact upon land and water, food security, biodiversity, or climate change. 

 

The Policy Debate Over Intellectual Property and Biofuels 

http://www.bolibio.com/


29 
 

 

In his book, A Practical Guide to Working with TRIPS, Antony Taubman identifies a number 

of positions to patent law reform in the field of clean technologies and climate change 

(Taubman 2011). 

 

Taubman observed that “amidst a dynamic debate over TRIPS and climate change, three 

general sets of proposals can be identified” (Taubman 2011, 191).  One position is to “keep the 

status quo, but implement it more effectively, such as through improved flow of information 

about patented technologies and licensing opportunities” (Taubman 2011, 191). A second 

position is to “adopt initiatives akin to the access to medicines process, establish specific 

measures to remove barriers to using TRIPS flexibilities, on the model of TRIPS 31bis” 

(Taubman 2011, 191). A third position is to “implement more fundamental changes to rules on 

patents, such as revocation or refusal of patents on technologies needed for climate change 

adaptation or mitigation, and specific carve-outs for least developed countries and other 

countries vulnerable to climate change impacts”  (Taubman 2011, 191).  

 

Taubman comments that “these proposals reflect divergent philosophies and working 

assumptions about the interplay between the IP system and efforts to promote innovation and 

diffusion of green technology that have emerged in contemporary debate and international 

negotiations” (Taubman 2011, 192). 

 

There has been much debate about policy settings in respect of intellectual property and clean 

technologies at the climate change summits — such as the Copenhagen Accord 2009, the 

Cancun Agreements 2010, the Durban Decisions 2011, the Doha Climate Gateway 2012, the 

Warsaw Climate Change Conference 2013 and the Lima Call for Climate Action 2014 — as 



30 
 

well as in international institutions, such as the World Intellectual Property Organization and 

the World Trade Organization (Rimmer 2011a; Rimmer 2011b; Rimmer 2012b). There has 

been prolonged discussion about what flexibilities are available under patent law to provide 

access to clean technologies. In particular, there has been a focus upon doctrinal options — 

such as patentable subject matter; patent criteria; technology transfer; patent pools; compulsory 

licensing; and requirements for disclosure, informed consent, and benefit-sharing. The issue 

has prominent in the lead-up to the Paris Climate Talks in 2015. Ahmed Abdul Latif (2015), 

Carlos Correa (2015) and Frederick Abbott (2015) have debated the possible law reform 

options in respect of intellectual property and clean technologies. In the context of the field of 

biofuels, there has been much policy debate about the appropriate settings for rights and 

exceptions in patent law, policy, and practice for clean technologies.  

 

Patentable Subject Matter 

 

It has been long established that micro-organisms (Diamond v Chakrabarty), plants (J.E.M. Ag 

Supply v Pioneer Hi Bred International), and even animals (Ex parte Allen) are patentable 

subject matter under United States patent law, and in many other jurisdictions. Nonetheless, 

there has been much uncertainty about the boundaries and the limits of patentable subject 

matter particularly when grappling with emerging technologies — especially in light of the 

litigation in the Supreme Court of the United States in Bilski v Kappos, Mayo Collaborative 

Services v Prometheus Laboratories, Association for Molecular Pathology v Myriad Genetics, 

and Alice Corp. v CLS Bank International. In his study of synthetic biology, Graham Dutfield 

observed that analogies are often drawn with existing technologies — such as mechanical 

inventions — when assessing the patentability of emerging technologies (Dutfield 2012). 

 



31 
 

A number of technology developers and national governments have promoted biofuels, arguing 

that they will be a boon to economic development, energy, the environment, and climate 

change. Some commentators have been enthusiastic about the use of patents in respect of 

biofuels. Adam Wolek, an intellectual property attorney, argues that patents can help address 

concerns about the market for biofuels: “Patents are particularly crucial for the biofuels 

industry because large-scale production facilities require standardized procedures and 

technologies to produce large amounts of uniform fuel” (Wolek 2011, 238). He elaborated that 

developers of new biofuels needed proper incentives: “The right to exclude competitors from 

using a patented technology for twenty years should draw substantial investment and 

ameliorate many investment concerns, as the potential gains of patenting a technology that 

becomes an industry standard may outweigh the risk” (Wolek 2011, 256). Wolek concluded 

that patents are critical for companies wanting to engage in “empire-building” in the area of 

biofuels (Wolek 2011, 256–57). 

 

In the United Kingdom, the Nuffield Council on Bioethics considered the question of the 

regulation of biofuels. The Council stressed that “moral values relevant to current and new 

biofuels include: human rights, solidarity, sustainability, stewardship and justice” (Nuffield 

Council on Bioethics 2011, 64). The council recommended that the future development of 

biofuels should take into account six principles for ethical policy-making – including (1) human 

rights, (2) environmental sustainability, (3) climate change, (4) fair trade, (5) equitable cost-

sharing and benefit-sharing, and (6) research development (Nuffield Council on Bioethics 

2011, xxv). The Council contended: “Policies for, and regulation of, biofuels have led to or 

exacerbated ethical problems in the past, so it is important to have a set of ethical principles 

against which the policies can be evaluated” (Nuffield Council on Bioethics 2011, Guide to the 



32 
 

Report, 5). Such an approach would emphasize the need to take into account considerations of 

ethics, justice, and public policy in determinations about patent criteria. 

 

There are a number of enterprising biotechnology companies applying a range of genetic and 

genomic techniques to harvest fuel from algae (Waltz 2009). There has been great interest in 

the implications of synthetic biology for intellectual property, energy, the protection of the 

environment and the climate change (Ahmann and Dorgan 2007).  

 

The ETC Group — based in Canada — has been negative about the adoption of new 

technologies, such as biofuels and synthetic biology (ETC Group 2010). They have argued that 

such technologies will have adverse impacts in areas such as energy independence, food 

security, biodiversity, and climate change.  The ETC Group alleged: “Under the pretext of 

addressing environmental degradation, climate change and the energy and food crises, industry 

is portending a ‘New Bioeconomy’ and the replacement of fossil carbon with living matter, 

now labeled ‘biomass’” (ETC Group 2010). The organization was concerned that biofuels 

threatened food security, particularly in developing countries: “The most productive and 

accessible biomass is in the global South — exactly where, by 2050, there may be another 2 

billion mouths to feed on lands that (thanks to climate chaos) may yield 20-50% less” (ETC 

Group 2010). The ETC Group has been particularly skeptical about the latest generation of 

biofuels based upon biotechnology: “Although this would seem to be the worst time possible 

to put new pressures on living systems, governments are being told that ‘Synthetic Biology’ — 

a technology just being invented — will make and transform all the biomass we will ever need 

to replace all the fossil fuels we currently use” (ETC Group 2010). The ETC Group has called 

for a moratorium in respect of such technologies and for the exclusion of such subject matter 

from the scope of patent protection. 



33 
 

 

There has been much vigorous debate over the patentability of synthetic biology – particularly 

in light of previous controversies over gene patents (Rai and Boyle 2007; Rai and Kumar 2007; 

Dutfield 2012). 

 

Technology Transfer and Climate Change 

 

The debate over intellectual property and technology transfer is a long standing one, cutting 

across the fields of public health, biodiversity, energy, and climate health. Ahmed Abdul Latif 

and Pedro Roffe from the International Centre for Trade and Sustainable Development have 

provided an overview of the fifty years of international debate over the topic (Latif and Roffe 

2011). Latif and Roffe commented: “While multilateral processes cannot provide all the 

answers, meaningful international action for promoting technology transfer within a general 

technology acquisition framework is taking shape, as reflected in the recent establishment of a 

Technology Mechanism under the United Nations Framework Convention on Climate Change 

1992 (UNFCCC)” (Latif and Roffe 2011). 

 

Over several years, the international climate talks have established a new Technology 

Mechanism — known as the UNFCCC Climate Technology Centre and Network (Zahar, Peel, 

and Godden 2013, 278–282). The proposal was first mooted by the United Kingdom Carbon 

Trust and India during international climate discussions. The Copenhagen Accord 2009, the 

Cancun Agreements 2010, the Durban Decisions 2011 and the Doha Climate Gateway 2012 

established an international framework for the Technology Mechanism. The Warsaw Climate 

Change Conference 2013 established modalities and procedures for the Climate Technology 



34 
 

Centre and Network and its Advisory Board. By the time of the Lima Climate Talks 2014, the 

Climate Technology Centre and Network was operational. 

 

At the Doha Climate Summit in 2012, the United Nations Environment Programme was 

selected to administer the UNFCCC Climate Technology Centre and Network (United Nations 

Environment Programme 2012b). The bid involved a consortium of research centres from 

around the world. The other key participants in the bid include the United Nations Industrial 

Development Organisation (“UNIDO”) — co-manager of the Core Centre; the Asian Institute 

of Technology based in Thailand; the Bariloche Foundation from Argentina; the Council for 

Scientific and Industrial Research from South Africa; the Energy and Research Institute from 

India; the Environment and Development Action in the Third World from Senegal; the Tropical 

Agricultural Research and Higher Education Center from Costa Rica; the World Agroforestry 

Centre from Kenya; the Deutsche Gesellschaft für Internationale Zusammenarbeit from 

Germany; the Energy Research Centre of the Netherlands; the National Renewable Energy 

Laboratory from the United States; and the UNEP Risø Centre from Denmark (United Nations 

Environment Programme 2012a). This model will facilitate research, development, and 

diffusion in respect of biofuels.  

 

One of the participants in the network is the National Renewable Energy Laboratory 

(“NREL”). The NREL has an impressive record of research and development in respect of 

biofuels, emphasized as follows: “Through biomass research, NREL is developing 

technologies to convert biomass—plant matter such as trees, grasses, agricultural residue, 

algae, and other biological material—to fuels” (NREL 2013a). The NREL stressed: “These 

biofuels will reduce our nation's dependence on foreign oil, improve our air quality, and support 

rural economies” (NREL 2013a). The NREL has filed and registered a number of patents in 



35 
 

respect of biofuels. The NREL seeks to promote the dissemination of its technologies to the 

private sector: “Through technology partnerships, NREL seeks to reduce private sector risk 

and enable investment in the adoption of renewable energy and energy efficiency technologies” 

(NREL 2013b). The NREL commented: “The transfer of these technologies to the marketplace 

helps displace oil, reduce carbon emissions, and increase U.S. industry competitiveness” 

(NREL 2013b). 

 

Naomi Oreskes, the co-author of Merchants of Doubt (Oreskes and Conway 2010) has 

contended that Barack Obama should make use of the national laboratory system in the United 

States to address climate change (Oreskes 2013). She laments: “Curiosity-driven science has 

not yet provided the solutions to global warming, and universities are not well situated to 

address a single, overarching problem” (Oreskes 2013). While she notes that the United States 

President does not have authority over the nation’s universities, he does have authority over 

the national laboratory system. Oreskes insists that “President Obama can move independently 

of Congress to address this critical issue: He can mobilize scientists through the U.S. national 

laboratory system … The labs have been mobilized before; the time has come to mobilize them 

again” (Oreskes 2013). 

 

At his second inauguration speech in January 2013, President Barack Obama emphasized: “We 

will respond to the threat of climate change, knowing that the failure to do so would betray our 

children and future generations” (Obama 2013a). While acknowledging that “[t]he path 

towards sustainable energy sources will be long and sometimes difficult”, Obama insisted: 

“America cannot resist this transition, we must lead it” (Obama 2013a). He also stressed that 

the United States would defend its intellectual property rights in respect of clean 



36 
 

technologies: “We cannot cede to other nations the technology that will power new jobs and 

new industries, we must claim its promise” (Obama, 2013a). 

 

The World Intellectual Property Organization has also established WIPO GREEN to facilitate 

information-sharing and technology transfer in respect of clean technologies. This will provide 

a useful international platform for the diffusion of clean technologies. 

 

Patent Pools 

 

There has been much discussion about the use of patent pools, technology clearing houses, and 

open source strategies to facilitate access to clean technologies (Rimmer 2011a, 312–342 and 

396–7). 

 

Jeremy de Beer has observed: “So-called patent thickets—multiple upstream patents where 

overlapping rights may impede the development or commercialization of technology—are an 

issue of some concern for which cross-licensing and patent pooling have been suggested as a 

possible solution” (de Beer 2011, 11). 

 

Calestous Juma and Bob Bell, Jr. have explored the possibility of patent pools in respect of 

biofuels (Juma and Bell 2009, 77). The pair have been skeptical as to whether patent pools 

would fully resolve issues in respect of technology transfer: “If patent pools are a possibility in 

the area of biofuels, they are probably unlikely to change the underlying structural barriers to 

technology transfer” (Juma and Bell 2009, 77).  Juma and Bell commented that “depending on 

how a patent pool is organized and implemented, it either cuts through patent-thicket blockages 

to facilitate access to critical biofuel technologies or can lead to antitrust issues (e.g., where 



37 
 

horizontal competitors abuse the system to form an anti-competitive cartel)” (Juma and Bell 

2009, 77). The pair has been circumspect about the mechanism: “Though patent pools can be 

a useful intellectual property management tactic with positive implications for access to 

technologies, they may not be the best way to achieve the transfer of technology” (Juma and 

Bell 2009, 77). 

 

The Nuffield Council on Bioethics summarised its concerns about patent law and biofuels thus: 

“For biofuels in many cases, financial return will only be possible after the investment of very 

large sums of money, and intellectual property will play a key role in attempts to secure such 

a return” (Nuffield Council on Bioethics 2011, 62–63). Nonetheless, the Council commented: 

“Just reward also means finding a balance between rewarding parties for their innovation and 

investment while trying to encourage access to knowledge and materials” (Nuffield Council on 

Bioethics 2011, 62–63). The Group suggested: “Another approach is to influence the way in 

which intellectual property is exploited – which is done principally through the granting of 

licences” (Nuffield Council on Bioethics 2011, xxx). The Nuffield Council on Bioethics 

observed: “The widespread use of non-exclusive licences which utilise the principles and best 

practices outlined in a recent OECD report should be encouraged in the area of biofuels” 

(Nuffield Council on Bioethics 2011, xxx).  

 

Considering the patent clusters in respect of biofuels, there could be scope for patent pools and 

cross-licensing to facilitate access to key, influential patents. 

 

Compulsory Licensing 

 



38 
 

There has been much international debate about the use of compulsory licensing in respect of 

clean technologies – including biofuels (Rimmer 2011a; Rimmer 2011b; Rimmer 2012b). 

Developed nations, such as the United States, Canada, and members of the European Union 

have been hostile to the provision of compulsory licensing in respect of clean technologies. 

Members of the BASIC and BRICS group — including Brazil, China, India, and South Africa 

— have pushed for access to clean technologies, but at the same time have made significant 

patent applications in certain fields. Developing countries — members of the Group of 77 — 

have argued that there is a need for the use of flexibilities; in particular, compulsory licensing 

may provide increased access to clean technologies.  

 

Calestous Juma and Bob Bell, Jr. have evaluated the use of compulsory licensing in respect of 

biofuels (Juma and Bell 2009, 76). The pair commented: “When there are no close substitutes 

for a biofuels technological product or process, compulsory licensing may be an option” (Juma 

and Bell 2009, 76). Juma and Bell noted further that compulsory licensing can be deployed to 

deal with a number of public policy objectives — such as addressing anti-competitive conduct. 

However, the pair were doubtful about the utility of this mechanism, concluding that 

“compulsory licensing may be a blunt instrument that is unlikely to promote technological 

innovation” (Juma and Bell 2009, 77). 

 

On the subject of compulsory licensing, the Nuffield Council on Bioethics recognised: “Many 

consider compulsory licence provisions as a form of safety valve within intellectual property 

law, simply designed to moderate the excessive demands of licensors” (Nuffield Council on 

Bioethics 2011, 103). However, the Council was hostile to the mechanism: “The compulsory 

license system is too complex and confrontational to be used except in extreme circumstances 



39 
 

to gain access to technology” (Nuffield Council on Bioethics 2011, 103). In the Council’s view, 

voluntary forms of patent licensing would be less confrontational and threatening. 

 

By contrast, Professor Carlos Correa is somewhat more enthusiastic about the use of 

compulsory licensing in the area of agriculture — particularly for public policy purposes such 

as food security, climate change, and energy independence (Correa 2012). He commented that 

“[a]s an alternative to an uncompensated exception equivalent to the breeders’ exception, 

patent laws could provide for a remunerative exception based on a compulsory license: a 

breeder who might be prevented from legally commercializing a new plant variety because it 

contains one or more third parties’ patented components, may be entitled to obtain a 

compulsory license on the relevant patent/s” (Correa 2012, 15). Correa recommends that 

“national patent laws should provide for compulsory licenses in cases where the exploitation 

of a protected plant variety would infringe a patent” (Correa 2012, 15). 

 

In Australia, the Productivity Commission has considered substantive law reform in respect of 

patent law and compulsory licensing (Productivity Commission 2013), but has only been 

willing to contemplate limited reforms in respect of compulsory licensing — via a competition 

test, or a public interest test. The Productivity Commission has suggested that Crown Use could 

be used to address domestic national emergencies and circumstances of extreme urgency. The 

Productivity Commission has not addressed the need for compulsory licensing for 

humanitarian purposes to deal with issues such as food security. In that realm, the Productivity 

Commission asserted that compulsory licensing was unlikely to be an effective means to 

address concerns about global food security (Productivity Commission 2013). 

 



40 
 

Arguably, though, countries need to develop modern and flexible compulsory licensing 

regimes to deal with a range of public policy concerns under patent law — including matters 

such as energy security, food and agriculture, biodiversity, and climate change. The case of 

biofuels patents highlights the need for the patent regime to be able to address a wide range of 

public policy concerns. 

 

Access to Genetic Resources, Informed Consent, Benefit-Sharing, and Disclosure 

 

The principles of access to genetic resources, disclosure, informed consent, and benefit-sharing 

have been applied to a wide variety of contexts – including genetic resources, food and 

agriculture, traditional knowledge and medicine (Lawson 2012).   

 

There has been a push to apply the principles of disclosure, informed consent, and benefit-

sharing to the topic of patent law and biofuels. The Roundtable on Sustainable Biomaterials 

has emphasized that “Free, Prior and Informed Consent shall form the basis for the process to 

be followed during all stakeholder consultation, which shall be gender sensitive and result in 

consensus-driven negotiated agreements” (RSB Services Foundation 2011). 

 

On the topic of access to genetic resources, the Nuffield Council on Bioethics emphasized: 

“The intellectual property regime can play a role in ensuring that the costs and benefits 

associated with biofuels are distributed in an equitable way” (Nuffield Council on Bioethics 

2011, xxxi–xxxii). The Council suggests that such a goal could be achieved by “taking one of 

the key objectives of the Convention on Biological Diversity 1992 – i.e. the fair and equitable 

sharing of the benefits arising from the utilisation of genetic resources – and integrating it into 

the intellectual property regime” (Nuffield Council on Bioethics 2011, xxxii). The Nuffield 



41 
 

Council on Bioethics promoted the Nagoya Protocol 2010 for this purpose: “If successful, the 

Nagoya Protocol would allow developing countries, in particular, to exploit their genetic 

resources and reduce possible occurrences of misappropriation of those resources” (Nuffield 

Council on Bioethics 2011, xxxii). 

 

The Council had a number of substantive recommendations in respect of access to genetic 

resources (which is striking, given its limited recommendations on the topics of patent law and 

plant breeders’ rights). It recommended “that a ‘disclosure of origin’ requirement be introduced 

into UK patent law to improve transparency about genetic resource use in order to facilitate 

access and benefit sharing” and that “consideration be given to the introduction of a mandatory 

‘disclosure of origin of genetic resources’ requirement in intellectual property law with 

appropriate sanctions, either outside or within patent law, for non- or incorrect disclosure” 

(Nuffield Council on Bioethics 2011, 114). The Council emphasized that such a measure would 

“help facilitate countries providing genetic resources to monitor compliance with regulations 

and contracts regarding access to and sharing of benefits from genetic resources, and to bring 

national policy in line with the Bonn Guidelines” (Nuffield Council on Bioethics 2011, 114). 

 

Such a disclosure requirement would enable a better consideration of questions on bioethics in 

respect of biofuel patents. 

 

Conclusion 

 

The topic of intellectual property and biofuels highlights tensions in respect of the larger public 

policy debate about energy independence, food security, and climate change. 

 



42 
 

The patent landscape and network patent analysis reveal that the field of biofuels has a high 

concentration of patents. There are significant patent thickets in relation to biodiesel production 

and bioproducts, biogas, and cellulosic biofuels and by-products. The first generation of 

biofuels has the largest number of patents, and most influential biofuels networks. The second 

generation and the third generation of biofuels are still only emerging in terms of influential 

patent networks. It could be anticipated that there will be greater patent filings in these areas in 

the future — particularly given the limitations of the first-generation of biofuels.  

 

In terms of policy responses, there are a number of pressing issues in relation to patent law and 

biofuels. There has been much controversy over patent law and biotechnology in respect of 

limits of patentable subject matter (Saez 2013). In this context, there has been debate over the 

patentability of biofuels — particularly in respect of later generations of biofuels. There has 

also been a growing conflict over patents in respect of first-generation biofuels. It can 

furthermore be anticipated that there will be future conflict over patents relating to second- and 

third-generation biofuels. The topic of technology transfer remains a significant one in respect 

of clean technologies, such as biofuels. The UNFCCC Climate Technology Centre and 

Network will hopefully promote research, development, and diffusion in respect of biofuels. 

WIPO GREEN will also be an important marketplace to trade and share clean technologies. 

Given the crowded nature of the patent landscape, there could be scope for patent pools to 

facilitate access to key technologies in respect of biofuels. There is a need to modernise 

compulsory licensing regimes to provide access to clean technologies. Furthermore, the topic 

of biofuels raises important issues about access to genetic resources. There is a need to ensure 

that patent applications in respect of biofuels comply with requirements in respect of 

disclosure, informed consent, and benefit-sharing. This will be an important area of debate in 

the Paris climate talks in 2015. 



43 
 

 

There needs to be further international collaboration and co-ordination in respect of the topic 

of intellectual property law and biofuels — especially given the mutual responsibility for the 

area between United Nations Framework Convention on Climate Change 1992, the United 

Nations Environment Programme, the Convention on Biological Diversity 1992, the 

International Energy Agency, the World Intellectual Property Organization, and the World 

Trade Organization (Rhodes 2010).  

 

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62 
 

i The keywords for the first generation of biofuels included: ‘Starch’, ‘Sugar’, ‘animal fats’, ‘vegetable oil’, 
‘edible oil’, ‘soy’, ‘soybean’, ‘rapeseed’, ‘jatropha’, ‘mahua’, ‘mustard’, ‘flax’, ‘sunflower’, ‘palm oil’, ‘hemp’, 

‘pennycress’, ‘pongamia’, ‘pinnata’, ‘triglyceride’, ‘biodiesel’, ‘diesel’, ‘biogas’, ‘alcohol’, ‘bioalcohol’, 

‘ethanol’, ‘butanol’, ‘propanol’, ‘bioethanol’, ‘biobutanol’, ‘biopropanol’ and ‘syngas’. The keywords for the 

second generation of biofuels included ‘wood’, ‘agricultur’, ‘cellulos’, ‘fibr’, ‘Waste’, ‘Sewage’, and ‘sludge’. 

The keywords for the third generation of biofuels included ‘algae’, ‘microalgae’, ‘seaweed’, and ‘algal’.  
ii There has been significant trade secrets litigation in respect of biofuels: see the United States cases of 
BlueEarth Biofuels v Hawaiian Electric Company and SunOpta, Inc. v Abengoa Bioenergy New Technologies, 

Inc.; and the Canadian case of Abener Energia, S.A. v Sunopta Inc.. 

                                                           


	Queensland University of Technology
	From the SelectedWorks of Matthew Rimmer
	May 27, 2015

	Intellectual Property and Biofuels: The Energy Crisis, Food Security, and Climate Change
	Novozymes A/S v Danisco A/S, [2013] FCAFC 6 (4 February 2013). Australasian Legal Information Institute http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2013/6.html. [Novozymes A/S v Danisco A/S 2013]
	Novozymes A/S v Genencor International, Inc., [2013] APO 15 (30 January 2013). Australasian Legal Information Institute http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/APO/2013/15.html
	Oreskes, N., and Conway, E. (2010), Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, New York: Bloomsbury Press.