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Harnessing the Power of Stars

Douglas Jayatilaka, Associate at Powell Gilbert, considers the role of intellectual property in the development of nuclear fusion.

Nuclear fusion is the reaction that powers the stars.  It promises a superior alternative to nuclear fission, the process harnessed by nuclear power plants today.

Fusion works by combining the nuclei of hydrogen isotopes (usually deuterium and tritium, which are readily available) together to release millions of times more energy than is achieved through the burning of fossil fuels.

Fusion will also likely be safer than fission, with the possibility of a meltdown in a tokamak (derived from a Russian acronym for “toroidal chamber with magnetic coils”, the now-standard fusion reactor device) being negligible, given there is so little fuel in it at any one time.

Unfortunately, for the nuclei to overcome their electrostatic repulsion, an extremely challenging environment is required. The current favoured approach to creating this environment involves using high-power lasers and confining and stabilising plasma at high pressure in a magnetic field, at temperatures which can exceed 100,000,000ºC.

Nuclear fusion is an area of scientific research that has attracted significant coverage in the past year, mainly owing to the announcement that ignition had been achieved (albeit for only around 20 billionths of a second) in the US at the National Ignition Facility of the Lawrence Livermore National Laboratory. This was the first time more energy had been produced from fusion than the laser energy used to drive it.  The feat was repeated in August of 2023.

There is no guarantee that successful experiments like these can be turned into a viable energy source – nuclear fusion still requires large amounts of funding and many more years of research before anything approximating a commercial nuclear reactor will be seen.

However, reaching such milestones encourages both public and private sector funding, given the tremendous commercial and environmental potential of fusion energy.

Private sector innovation

The UK government’s strategy for nuclear fusion was set out in its 2021 Green Paper. One of the key points of the action plan set out in the Green Paper is to “[unleash] private sector innovation to achieve the commercialisation of fusion energy”.

On 7 September 2023, the UK government announced it was committing up to £650 million (US$788.7 million) of funding into fusion research and development.  It had previously also allocated £126 million in November 2022 to UK fusion R&D programmes.  This is significant and is comparable with US government funding in this area – following a commitment by President Biden to accelerate fusion research.

The majority of the £650 million will support private fusion ventures.  Private investment in fusion is also rapidly increasing, and is estimated to be around US$5 billion to date globally.

In the private sector, companies involved in fusion research may seek to protect their innovations through patents, which provide a legal monopoly on their inventions. Those companies can then use their patents to protect their innovation from competitors, or may choose to licence their inventions to third parties to generate a return on their investment.

A key consideration, in the context of patents relating to fusion technology, is the timeline in which commercial fusion will be achieved.  Patents provide protection for a maximum of 20 years, and whilst there have been promising experimental results, nuclear fusion is still not capable of being applied as a viable energy source.

A running joke in the field is that fusion is “always 20 years away”, bringing into question the real-world value that fusion patents might have.  However, one of the key private nuclear fusion firms in the UK, Tokamak Energy, is (rather optimistically, in the authors’ opinion) aiming to deliver “clean, secure, affordable fusion energy in the 2030s”.

Indeed, patent applications have been filed globally for tokamak designs and other reactor systems currently used for nuclear fusion. A number of patents have also been filed by nuclear fusion companies in the UK for technologies such as superconducting magnets, which have application in other sectors.

The increase in private sector funding may result in an increase in patent filings as innovation accelerates and companies seek to protect their developments.

Patent filings are expected to be targeted in jurisdictions where competitors are most likely to be located.  This will include the usual suspects of the US, EU, Japan, China and South Korea, where the vast majority of renewable energy patents are currently held.

Reports have suggested that currently Chinese entities lead the world in fusion-related patent filings, followed by companies based in the US, UK and Japan.

That being said, it should be noted that Chinese entities file the most patent applications in the world, with the World Intellectual Property Organization finding in its 2022 roundup that Chinese filers accounted for 46.6% of the world’s total patent applications that year (as well as over half of all global industrial design and trade mark filings).

Global co-operation or national self-interest?

Given the scale of the challenge that nuclear fusion presents, and the potential benefits it has for humanity, fusion research has been the subject of international co-operation.  This is best typified by the 35 nations working together at ITER to construct what is intended to be the world’s largest tokamak.

Whilst the UK’s 2021 Green Paper noted that “the realisation of fusion energy will require continued collaboration”, this comes following Brexit and the UK’s decision not to associate with the EU’s European Atomic Energy Community (“Euratom”) Research and Training programme (despite rejoining the EU’s Horizon science programme).

Euratom funds nuclear fusion research across the EU, including in particular a consortium of national fusion research institutes called EUROfusion.

International co-operation in this area seems desirable, however, there is also the potential for something of a fusion “arms race”.

In the current geopolitical climate, and given the potential value of fusion power to nation states, there is a real risk that some countries may choose to prioritise self-interest over international co-operation.

In such circumstances, it may be that particularly valuable inventions are not disclosed in patent applications, but are instead kept as closely guarded secrets. Indeed, countries like China have included nuclear fusion under state secrecy laws to limit access to the technology. Further moves in this direction might be expected in other countries.

In addition, patents which relate to nuclear fusion may test the international status quo where intellectual property originating from foreign countries is respected in much the same way as that which has originated at home.

If fundamental patents originating from a Chinese entity are seen to be preventing US or European industry from competing with Chinese businesses to generate fusion power (or vice versa), it seems likely that countries will find ways to ensure that “foreign intellectual property” does not stand in the way of national interests.

Star gazing

It is still too early to judge if and when nuclear fusion will become a viable energy source. However, as the technology develops, we can expect to see continued waves of funding from both public and private sources. This funding will secure not only experimental research, but also protection for key intellectual property rights.

The article is co-authored by Tom Oliver, Partner at Powell Gilbert 

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