Written By Stephen Burns, Sebastien Gittens and Ahmed Elmallah

A recent report—jointly published by the International Energy Agency (IEA) and the European Patent Office (EPO)—earlier this year (Joint Report),¹ highlights the growing number of patent filings in the hydrogen sector. A key finding is that more than 80 percent of later-stage investment in hydrogen start-ups go to companies which have already filed a patent application, thereby indicating the importance of patenting for early-stage companies operating in this sector.

To that end, the Joint Report finds increasing relevance in view of the unprecedented progress hydrogen technology has shown in leading the global movement towards a clean energy future. In only the past few months, several Canadian provinces (including Alberta² and Ontario³), have committed millions of dollars to catalyzing innovation in the hydrogen space. The Federal Government of Canada previously launched its "Hydrogen Strategy for Canada" to position Canada as an international leader in the production and use of clean hydrogen.⁴

Below, we summarize key findings of the Joint Report. We also highlight how various patent offices around the world incentivize the filings of clean technology (cleantech) patent applications, which can include applications relating to hydrogen innovation. As explained below, Canadian companies operating in the hydrogen space should consider leveraging government incentives to develop and build a robust patent portfolio. In addition to protecting their intellectual property rights, doing so may also drive necessary investment.

Key Findings of Joint Report by IEA and EPO

The Joint Report of the IEA and EPO finds that patent protection offers a critical tool for innovators to transform hydrogen research into market-ready inventions.

The Joint Report analyzed patent trends in the hydrogen technology sector, including patenting of inventions relating to production, storage, distribution, transformation, and end-use of hydrogen.⁵ The study covered the period between 2011 and 2020.

Key findings of the Joint Report included the following:⁶

1. Patenting underpins fundraising by start-ups developing hydrogen businesses, with more than 80 percent of later-stage investment in hydrogen start-ups going to companies which had already filed a patent application, indicating the importance of patenting for early-stage companies in this sector.
2. About half of international patent families (IPFs) in hydrogen technologies, in the study period, related to hydrogen production. Other IPFs were split between end-use applications of hydrogen, and technologies for the storage, distribution and transformation of hydrogen.
3. New hydrogen patenting heavyweights are companies in the automotive and chemical sectors, which focused their innovations on electrolysis and fuel cell technologies.
4. While hydrogen production remains almost entirely fossil fuel-based, patenting has already seen a major shift towards alternative, low-emission methods. This shift anticipates a boom for electrolyser technologies.
5. Patenting activities, targeting improvements in existing technologies for the storage of hydrogen and the production of ammonia and methanol, grew steadily between 2001 to 2020.
6. Patenting activities for hydrogen use in the automotive sector continued to expand at much higher rates than for other end-use applications.

The Joint Report therefore underscores the rising importance of patents for hydrogen innovation, as well as the diversity of hydrogen innovations being patented.

Global Patent Offices Incentivizing Filing of Cleantech Patents

As noted above, Canadian companies should take note that patent offices around the globe offer incentives for filing of cleantech patent applications, including applications covering hydrogen-related innovations.

The following are a few example incentives offered by some patent offices:

• Canada: Canada provides an expedited examination process for patent applications relating to green technologies, at no additional cost. Under this program, a first correspondence from the patent office can be expected within three months of filing.⁷ This is compared to over 12 – 14 months in the usual course.
• United States (U.S.): The U.S. offers a similar program under its "Climate Change Mitigation Pilot Program", to allow for expedited examination of green technology patent applications. The program was expanded on June 6, 2023, to involve patent applications involving technologies that reduce, remove, prevent, and/or monitor greenhouse gas emissions.⁸
• Australia: Expedited examination is offered by Australia for green technologies, or otherwise, "environmentally-friendly innovations".⁹
• China: Expedited examination is also offered in China for patent applications that relate to energy conservation and environmental protection, as well as for new energy, new materials and new energy vehicles.¹⁰

Accordingly, Canadian companies operating in the hydrogen space should consider developing a robust patent portfolio for the purposes of fostering investments, among other things. To that end, various government incentives may be available for such purposes.

Our Intellectual Property group remains ready and available to assist Canadian companies considering seeking patent protection for their hydrogen-related innovations, and benefiting from the incentives offered by worldwide patent offices for this type of technology.

¹ https://www.epo.org/en/news-events/news/hydrogen-patents-shift-towards-clean-technologies-europe-and-japan-lead.

² https://www.eralberta.ca/funding-technology/accelerating-hydrogen-challenge/.

³ https://news.ontario.ca/en/release/1002689/ontario-launches-hydrogen-innovation-fund.

⁴ https://www.canada.ca/en/innovation-science-economic-development/news/2022/11/government-of-canada-makes-significant-investment-in-albertas-clean-hydrogen-sector-and-outlines-next-steps-to-help-canadian-industry-sectors-cut-p.html.

⁵ "Hydrogen patents for a clean energy future – A global trend analysis of innovation along hydrogen value chains (Key Findings)" (January 2023) https://www.epo.org/news-events/news/2023/20230110.html#:~:text=The%20report%20uses%20global%20patent,well%20as%20end%2Duse%20applications

⁶ Ibid.

⁷ https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/patents/patent-application-and-examination/advanced-examination-green-technologies. 

⁸ https://www.uspto.gov/patents/laws/patent-related-notices/climate-change-mitigation-pilot-program.

⁹ https://www.ipaustralia.gov.au/patents/how-to-apply-for-a-standard-patent/how-to-request-examination-of-my-patent-application.

¹⁰https://www.wipo.int/wipolex/en/legislation/details/13322.