Volume 11, Issue 1, April 2014


E. L. Brown

Cite as: A Brown, “Lessons from Technology and Intellectual Property in the Oil and Gas Industry in Scotland: a Scholarly Journey and an Empirical Review”, (2014) 11:1 SCRIPTed 9 http://script-ed.org/?p=1402



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Introduction and overview

power of intellectual property (IP) to control activities has been criticized. 
Yet IP has an established and, since its inclusion in the World Trade
Organization through TRIPS, a mandatory place in the innovation landscape. The
possibility of Scotland voting for independence in 2014 and choosing to (or
being excluded from) the World Trade Organisation and the European Union,
raises the prospect of this position changing; a thought experiment was therefore
appropriate. This used the energy industry in Scotland as a base as this
industry is one in which there is technology, there is IP and there are also
regulation and established sharing practices. What might this suggest in
respect of new approaches to regulation of innovation, from the perspective of
developing new technologies, in all industries?  If IP should in fact remain in
Scotland any lessons from the energy industry could still be of value in
developing some aspects of innovation policy.   

project which followed had three distinct strands. The first strand was the
established and continuing concern at the power of IP owners to control
technology (not just in the energy sector), particularly when it is of
particular importance to society; the second was the licensing regime which
governs oil and gas exploration and production in the UK Continental Shelf,
which involves different approaches to risk taking and investment from those
involved in IP; and the third was the growth of sharing and community based
activities in relation to renewable energy, in which field some oil and gas companies
are also involved. The concurrent presence of this regulation and sharing in
the energy sector suggested that companies, investors, regulators and
policymakers might be comfortable with both, and that they could be further combined
to deliver an approach to encouragement of innovation and rewarding of risk
taking and investment while also providing fair access to the results.

pilot set of interviews was carried out to establish the extent to which
sharing, decision making in respect of oil and licensing and approaches to new
technology and the impact of IP are in fact intertwined in the energy industry,
and also to identify what openness there would be across that industry to a
different approach to the regulation of innovation.  The evidence gathered
suggests that, irrespective of the scholarly arguments for combining the
strands, they are at a practical level very distinct. Accordingly, the initial
aim of the project did not warrant further pursuit.

the interviews also suggested another issue which did merit attention: the reluctance
to embrace new technologies in different parts of the oil and gas industry in
Scotland: from identification, to extraction (where it is a particular issue),
to progress to end user. This article makes an initial proposal to address this
and, coming full circle, it does so by combining regulation and sharing. It is
hoped that the proposal can be further tested and will form part of an existing
wider policy and industry dialogue regarding technology in oil and gas. 
Finally, this article suggests further areas of enquiry regarding the interface
between private and public activity and regulation in respect of innovation
which could be pursued if the new proposal is adopted.

The project landscape: three strands

following paragraphs will set out the strands (the power of IP, oil and gas
licensing and sharing practices) in more detail. The possibility of their
combination, and the empirical work in respect of this, will then be considered
in the sections which follow.     

Strand 1: innovation, technology and the problem with IP

is a broad term, much wider than IP, and there is a complex relationship
between the two fields.[1]
 For example, scholars have argued that there is low pursuit of patents by
innovators in the UK in some areas.[2]
There is also a rich and distinct body of scholarship and activity in respect
of innovation. For example, this considers different types of innovation, such
as radical and disruptive innovation (the development of a product quite
different from that which has been used before) as opposed to incremental
improvements on existing products.[3]
A Global Innovation Index evaluates the levels of innovation in a country by
looking to relevant institutions, human capital and research, infrastructure,
market and business sophistication,[4]
and initiatives taken to encourage innovation at Scottish,[5] UK[6] and EU[7] levels
involve business growth, greater investment in science and funding for
research. Further, there is growing activity and commentary regarding open and
collaborative innovation,[8]a
type of innovation which does not depend upon IP,[9] and prizes
and private/public initiatives along with tax[10]
also all have a place in innovation.[11]

this broad backdrop, the nature of innovation can vary between industries, with
the distinctions between biotechnology, pharmaceuticals and software having
received particular attention.[12]
There is also innovation across the energy sector: from identification to
extraction to transport to decommissioning.  Examples include the increased use
of established but less explored techniques, such as hydraulic fracturing
(“fracking”) to obtain shale gas;[13]
developing and using new technology in oil and gas to improve established practices
in areas such as wellhead drilling[14]
and subsea connectors;[15]
and use of seismic imaging to identify oil and gas.[16] Technology
is addressing key challenges in bringing about the decommissioning of oil and
gas fields;[17]
 new technology has enabled established, but less explored, sites to be
revisited (for example there can now be drilling in the Mariner field, West of
Shetland, in the Atlantic Ocean[18]);
and new technologies lie at the heart of the exploration of new ways of
harnessing renewable sources such as through wind and wave projects in the
Western Isles of Scotland.[19]
Large conferences are held to showcase technology for offshore activities
in the renewable and oil and gas sectors.[20]

is innovation in the sense of the development of new technology which is the
focus of this project; and of interest to this strand is that the development
of new technologies can lead to IP. Even though, as discussed above, IP has only
a partial role within the innovation landscape, if IP exists then it grants its
owners the power to control the use of the technology which is the subject of
the IP.  They can restrict its use or determine the financial terms on which it
will be shared and, as a result, can prevent the use of technology by
competitors (who might be able to make it more cheaply or disseminate it more
widely) or to prevent its use by those who are in need but are unable to pay
for it.[21] 

might argue that this is an acceptable price for the impact of IP in bringing
about development of technology; this
would be consistent with the argument that IP is a valuable form of reward of
the innovator, and an incentive for those who chose to invest in the innovator.[22] There
are arguments made, particularly by pharmaceutical companies, that they spend a
great deal of money and resources on research which is not successful; and as a
result they are entitled to high rewards for the research and products which do
In contrast, there is an established and evolving literature and the growth of
activism which challenges IP when its enforcement can have a negative impact on
the wider public interest.[24]
Key areas have involved access to essential medicines and to knowledge[25] and this
activism has led to changes within the IP system; for example confirming the
place of compulsory licensing in respect of health emergencies;[26] to an
access to knowledge movement and draft treaty;[27]
and to activity by the World Health Organisation in Public Health, innovation,
intellectual property and trade.[28] 

respect of energy, the relationship between IP, technology and oil and gas has
received attention from scholars (including some empirical analysis of the
impact of patents[29]),  and IP  has been considered in both leading
professional works and in reported cases.[30]
IP has been argued to have an important but limited role in renewable energy;[31]
policy and scholarly work prior to the Copenhagen meeting of the United Nations
Framework Convention on Climate Change in 2009[32]
considered arguments that a special arrangement should be put in place for
compulsory licensing to assist in addressing climate change, just as is the
case in respect of health emergencies. This did not come about, likely for political
reasons, but there were also strong arguments that the different challenges
posed by health and climate change meant that this was not appropriate.[33] The
most relevant possible analogy to the health and communications questions
identified is more likely to be the impact of IP on technologies relevant to
ongoing energy security (i.e. regular and predictable access to energy, at
fairly stable prices).[34]
The UK’s innovation agency – the Technology Strategy Board – has energy
security as one of its present objectives,[35]
however IP and energy security have not yet been considered in depth[36] and
the issue deserves attention.

approaches to regulation of innovation might, therefore, assist the energy
sector. For the present project the key point is that the power of IP can
create significant problems across several industries. The important possible
contribution of energy in this project is to provide some solutions for use in
any context.  There are two strands which, it appeared, could help build this. The
first, strand 2, was the oil and gas licensing system.

Strand 2 – part of a solution: the oil and gas licensing approach

engage in exploration and production for oil and gas in the UK Continental
Shelf, licences must be obtained from the UK Government. This stems from the
fact that any oil and gas is subject to sovereign rights in the hands of the
Given the points which will subsequently be made a fairly detailed introduction
will be provided.

are issued by the Secretary of State for Energy and Climate Change and administered
by the Department of Energy and Climate Change (“DECC”).  There are seaward
exploration licences (which enable searching for petroleum and carrying out
surveys) and seaward production licences (which enable searching for, boring
for or getting petroleum). Licences are in respect of a territory (termed “a
block”) and are granted for a limited time. The 28th seaward
licensing round was launched in January 2014 and applications close in April
The seeking and grant of licences is complex. As part of this interested
parties can consult publicly available information, based on previous activity
in areas such as geology, regarding the extent to which oil and gas might be
recoverable or to which an area might seem worthy of further exploration.[39] Interested
parties then prepare a work package setting out the proposed work they would do
to recover oil and gas on that block. Decisions will be made in the light of
this package combined with factors such as the technical and financial
capability of the applicant, geotechnical submissions and past performance
under any licence. Subject to a requirement to act in a non discriminatory
manner the state has full discretion in this respect.[40]

model terms of these licences are set out in regulations from 2004, although it
is worth noting that some of the conditions have been in place for decades.[41]  The
terms and structure build on significant industry consultation through PILOT, a
body which brings together industry and government.[42] The
exploration licence is non-exclusive and runs for three years, renewable for a
further three years. Production licences are exclusive, and the present
standard production licence has three terms: one mainly for exploration, one
for appraisal and development, and then a production period. The first and
second term last four years, and the third term lasts eighteen years. Annual
rental payments must be paid. At the end of each term if adequate progress has
been made and the licensee wishes to continue then the licence will be
permitted to proceed, subject importantly to a “surrender” of part of the block.
This surrender arrangement exists to enable the licensee to focus on the parts
of the block which appear most promising, and enable the rest to be re-offered
to others, enabling as effective and wide working as possible.[43] Licence
holders are also subject to industry codes, developed by PILOT. Of interest
here, given the concerns at the power of the IP owner to limit the activities
of others, is the code regarding the sharing of infrastructure assets, such as
Also of interest is PILOT’s “Fallow Initiative” and “Stewardship Process” which
address use and obtaining the full potential of the licence territory.[45]

are some important differences between oil and gas licensing and IP.  If the
licence holders, having taken on a commercial risk before their project starts,
then find oil and gas they can achieve significant financial and commercial
success. An early example was the find by BP of the Forties Field in 1970.[46]  It
should be borne in mind, however, that after finding the oil and gas, licence
holders must both extract it and then sell it on, say for the oil to be
converted into electricity, or to make  a wide range of new products such as solvents
or fertiliser.  The prospects of licence holders achieving all this will also
involve a wider range of regulation (including, for example, planning and
health and safety regulations) and engagement with others.[47]  If
licence holders cannot do all of this then there will be much less reward – or
none.  In contrast, IP provides a means of rewarding innovation which has
already been carried out,[48] 
say, by completing scientific work and then making the patent application, or by
finalising the software code in respect of which one then grants a copyright
licence.  Further, work in oil and gas involves an existing natural resource in
respect of which the Crown has sovereign rights; what is being granted is the
opportunity to take the risk in respect of the development and exploitation of
the resource and hopefully be rewarded, with the Crown to be rewarded (or
recompensed?) in its turn through the payment of taxes.[49] In
contrast, IP aims to reward innovators (be they a large pharmaceutical or
renewable energy company, or an individual software writer) who create – in the
broadest sense – something new.  

there are also some similarities between oil and gas licensing and IP, and
these could serve to make it an appealing base for an alternative form of
encouraging innovation and development of technology.  In both systems there is
future uncertainty – regarding how the exploration will proceed or how the
market will respond. Both offer reward for decisions made to invest, research
and take risks at different parts of the process. Further, both models offer
power with limits: on IP rights through term, territory, and exceptions;[50] and for
licences through restrictions on the behaviour of the holder through, for
example, the licence terms and industry codes and initiatives. Both systems
involve the state – on the one hand with the grant of the licence by the
Secretary of State for Energy and Climate Change and the involvement of DECC in
PILOT; and on the other by virtue of the national UK IP legislation (under the
present international umbrella of TRIPS or EU requirements)[51]
pursuant to which the IP will be granted or established to exist, depending on
the nature of the right. Finally, both systems can lead to developments which
are in the interests of wider society; as discussed above, this can include more
secure energy sources, better information and health opportunities.

with the relationship between energy security and IP these similarities and
differences are worthy of further exploration and are an important backdrop to
arguments for a new approach to innovation based upon the licensing model. Yet
the most important point for present purposes is that, whatever the
similarities and differences, companies both obtain oil and gas production
licences and also have patent portfolios in respect of oil and gas and
renewable energy technology.[52]
This suggests that at least some oil and gas companies are comfortable with
these two different forms of rewarding and evaluating risk. This might be a
useful response to the argument inherent in justifications for IP; that without
it there is unlikely to be risk taking and investment in respect of innovation.
It might also suggest that a new system could be (more) readily accepted if it was
based on this familiar form of regulation.

3 offers a different solution to the problems of IP. In the renewable energy
sector there have been initiatives based on sharing and community practice. These
have been developed even in scenarios which have involved IP. If strand 2 could
suggest a new means of encouraging investment and risk taking, can strand 3
suggest a base for a fairer method of sharing the results?

Strand 3 – another part of an answer: increased sharing  

are instances of sharing and community practice in renewable energy
initiatives. One example is the involvement of Community groups in renewable
energy projects, for example on the Scottish island of Gigha.[53] In
parallel with this, some large oil and gas focused companies are also involved
in renewable energy[54] 
and have indeed used renewable sources used to power the operation of oil rigs.[55]  There
has also been some sharing of IP relevant to renewable energy through the Eco-Patent
Commons. By way of background, the concept of the Commons has its roots in
communal grazing – a resource belonging to a community.[56] The
Commons is becoming increasingly relevant in debate and action relation to IP,[57] and in
the Eco-Patent Commons[58]  large companies such as Sony and DuPont
have pledged some of their patents which can benefit the environment  and committed
to sharing them on certain terms. It is interesting to note that a detailed
analysis of the Eco-Patent Commons has argued that potentially valuable patents
have been pledged, but that these are not at the core of the patentees’
business and are not their most radical innovations, and also that the
Eco-Patent Commons has not so far had an impact on the diffusion of the
technology which was the subject of the patent in question.[59]

diverse elements suggested that the renewable energy industry is receptive to
new approaches to reward and to sharing; and that this may include the oil and gas
industry given that it has some involvement in renewables.

Combining the strands: a new approach to encouraging the development of

landscape suggested the possibility that oil and gas licensing and community
practices in the energy sector could combine to provide a basis for a different
approach to innovation and technology – within the energy industry and
elsewhere –  which could be acceptable to innovators and investors.  Continuing
the thought experiment for now, one possibility would be that Scotland could
confer on a researcher or a company the exclusive right, for a limited period,
to work to develop a cure for a particular illness or to develop a robust means
of storing energy generated from renewable sources.[60] If
they did not succeed another exclusive right could be granted to another. This
would likely be a detailed, rigorous process involving significant regulatory
involvement and state control – but the discussion of oil and gas licensing
suggests that this is already present in at least one industry. Once a solution
to the problem is developed the technology could be made available to all who
would like to use it with the developer  being entitled to a fixed percentage
of all sales in Scotland.[61]

challenges could be made to the proposal, each of which could be the subject of
separate articles in their own right. Briefly, the proposal confers significant
power on the state and yet the state does not control all situations where IP
can be problematic –how therefore can it control sales? The assumption of so
much power by the state could raise competition questions. Regulating the
exploration and production of oil and gas involves an existing natural resource
which can be allocated by the state; this is not so in respect of other areas
in which there might be innovation.  Further, if Scotland remains part of the UK,
problem solvers will still be able to seek IP protection. Even if Scotland
leaves the UK, and is not part of  TRIPS and the EU,  the ongoing place of
TRIPS in other countries means that IP could still be sought elsewhere and
there may be questions about the extent to which the lack of availability of IP
would render Scotland a less attractive market.

developing the model further and addressing these challenges, however, some
empirical work was required to establish the reality of innovation and
technology in the energy sector. Notwithstanding the arguments identified to
build the proposal it is necessary to explore what approaches are actually
taken to innovation, to IP, to licensing and risk taking and to reward and
sharing. Are businesses really prepared to share important technology?  Does
the fact that businesses have both patents and hold oil and gas licences mean
that they have consciously decided to embrace two different forms of reward or
management of risk?  Would the energy sector in Scotland support a different
approach to innovation, technology and encouraging and sharing of the outputs?
If the energy sector would not then the prospects of other industries being
open to exploring it become much less likely. Accordingly, in 2012 I obtained
funding from the Carnegie Trust for a pilot project titled: “Could new approaches
to the energy sector be acceptable in Scotland?”


Empirical Pilot   

Aims and focus

the heart of this funded project were semi-structured qualitative interviews carried
out from an exploratory, information gathering perspective. The information
sheet for the funded project, which was distributed to interviewees, stated its
aim as exploring:

Are there workable new forms of
encouraging innovation which are not based in intellectual property rights?
Options might be prizes, a different form of exclusive control of innovation
more akin to the oil and gas licensing system, a more community based approach,
and/or one which takes into account other forms of legal regulation (like
competition and climate change).[62]
 How would these be received within the industry and its policymakers and

Each interview explored the following issues, although
the structure varied depending on the expertise of the individual and the flow
of the discussion:

Has IP proved to be an aid or a hindrance to work in
innovation and its adoption?

Would innovators, their advisors and funders, and
policymakers embrace the proposed new forms of rewarding innovation and
investment in it?

If not, why not? What are the obstacles, both perceived
and actual (regulatory, financial, cultural)?

How could these be addressed?[63]



the apparent place of innovation, IP, licensing and sharing in oil and gas it
was oil and gas related companies, their advisers and supporters who were of
most interest for the pilot study. The views were sought of experts from oil
and gas operators of different sizes; from service companies and start up
companies; from legal and innovation advisers in respect of these companies (in
respect of IP, energy and fund raising); from investors and their advisers; from
industry bodies; from organisations supporting innovation and growth; and from industry
and policy leaders.   

had been obtained for a few months and for a limited amount. Accordingly, the key
aim was to provide an appropriate initial representation, across the different
types of expertise and entities identified above, from which preliminary views
could be formed. In identifying the first interviewees I benefitted from the
expertise and connections of colleagues at the University of Aberdeen (which is
a leading provider of research, teaching and learning in energy) and I also
approached experts identified from internet searches as having relevant
expertise. Further, interviews were held with advisers (both external and in
house) to energy companies.  This enabled the views to be obtained of the
advisers and also permitted, albeit indirectly, an indication of the position
of their wider client base. These advisers were identified from their position
as leading advisers in Scotland, known to me from my experience in the legal
and innovation community in Scotland as a lawyer, academic, and as a member of
professional and industry committees. Interviewees were asked to suggest, or indeed
they volunteered, other people (or persons with particular skill sets and
perspectives), with whom it may be interesting to speak. This led to meetings
with investors, with more businesses and with business and policy leaders.

interviews were carried out involving 30 interviewees. All save two were
carried out face to face, with the two others carried out over the telephone.
In terms of the size of the sample, a UK report for 2013 states that oil and
gas sector in the UK employs 440,000 people, 45% of which are in Scotland.[64] An
interview sample of the size carried out can therefore only give a preliminary
indication. As is discussed further below in section 5, however, in the interviews
it quickly became apparent that there were strong common themes across the diverse
sample, and this consensus continued.  It would have been helpful to complement
and confirm the interviews with experts who are currently working with a
service provider.  Otherwise however, although this is a limited sample, the
results provide a base for the development of an initial proposal which should of
course be the subject of wider testing and analysis.

interviewees are grouped in categories below (note that when interviewees could
be part of more than one category, they have been counted in the area in which
our discussions focused).  Details of the size and nature business in which
they are or have been based are included in notes where appropriate, save when
the sharing of this information would make evident the identity of the
interviewee. All interviewees are based in Scotland and interviews were
carried out in late 2012 and early 2013.    



Number of interviewees

Industry leader (oil and gas)


Industry practitioner (oil and


Industry legal (oil and gas)


Private practice legal
(different fields of expertise – IP, energy, oil and gas, private equity)


Investor/Advisor to investor
(corporate and individual)


Policymaking (oil and gas)


Policy implementation




Business advisor


Academic Technology Transfer


Industry body




interviewees were provided with the project information sheet referred to above
and with a consent form. The consent form confirmed the opportunity to ask
questions; that participation is voluntary and that an interviewee could withdraw
at any time without giving a reason; that the interview could be audio recorded
(and details were provided of storage arrangements); that the interviewee
agreed to the use of anonymised quotes in resulting publications; and that when
quotes where made indications would be given of the description and role of the
interviewee. All participants signed the consent forms, in some cases with
caveats, to which regard has been had.  I carried out all interviews.

notes of the interviews were taken and a full note (though not a verbatim
transcript) prepared of the discussions. This was then sent to the
interviewees. It was made clear to interviewees that the recording remained and
that if quotes were to be made of particular points made during the interview
the recording would be consulted and verbatim transcripts used. This was done.

Key themes from pilot interviews 

themes emerged from the interviews.[76]
These themes are set out in the table below, and are then each developed in the
rest of this section.  As mentioned above, there was a strong consensus across
the interviewing sample with at least three of the relevant interviewees, and
in most cases significantly more, supporting each of the themes presented


is no such field as “energy”

innovation is not the focus of (most) of the oil and gas industry

is important but not essential to innovation and rarely a significant
obstacle to activity

can be collaboration and sharing

should be different regulation



key message was that the proposal set out above was not supported. Oil and gas
and the different parts of the energy sector are largely distinct. Approaches
to sharing developed by those involved in renewable energy cannot suggest an openness
to this in oil and gas decision making. Oil and gas licences are held by
operators, and most of the innovation and development of new technologies is
carried out by service companies and then provided to operators. If a large
company does engage in both, decisions are made by different parts of the
business. Accordingly, one cannot argue that because operators will take oil
and gas licences, they would be comfortable with an approach to encouraging
technological innovation which is aligned to this approach.  It is also
interesting to note, and more fundamental for this project, that IP is
perceived much more as an opportunity and a means of obtaining value and reward
–  consistent with the traditional model put forward by its advocates – rather
than as an undue obstacle to activities of others. Quite apart then from the links
between strands 2 and 3, changes to forms of encouraging technological
innovation are unlikely to be well received in the oil and gas industry. There
was, however, strong agreement on another problem relevant to technology in oil
and gas: how new technologies are received in the market.

next section explores each of the five themes. Quotations of particular impact
are also included, with details given in each case in the notes as to the
relevant expertise of the interviewee in question. A preliminary proposal in
respect of the new challenge identified in this pilot study is then discussed
in section 6. 


There is no such field as “energy”

given that one of the bases of the proposal was that two elements of practice
and regulation in the energy industry suggested that the industry (and other
industries) would be open to the new approach, a strong theme that emerged was that
there is, in fact, no “energy industry”. Renewable energy in it various forms –
oil and gas and also, say, nuclear and coal – are all very different industries.
Of particular interest here is the fact that the oil and gas industry is very
market and demand driven, whereas renewables is dependent on subsidies. Some
companies do have businesses in both oil and gas and in renewable energy, but
these operate and are managed in a different manner.

innovation processes and innovation systems are different; they involve
different types of energy and are indeed different industries. Oil and gas is [an]
established industry and the priority is more extraction of energy.[77]

was acknowledged that there is some scope for cross over and transfer of skills
between, say, offshore wind and offshore drilling for oil and gas and that there
is dialogue between respective industry bodies.

[Scotland] have the skills, knowledge, renewables, experience and technologies.
Other countries in the world looking to work offshore do not have this resource
base to draw on. New fields, industries, technologies do not come out of thin
air, they come from somewhere.[78]

opportunities have not, however, been pursued to any great extent. The ongoing
potential for financial success in oil and gas has been a key factor in this

big challenge is that they are all earning a good crust from oil and gas so
diversification into offshore is interesting but for another day.…Oil will not
run out. [It’s a] [c]radle to grave career. They are competitors for renewables
for skills and service companies[79]

oil and gas industry doesn’t seem to be jumping across
because we are too happy with oil
and gas…competitive advantage is not becoming an actual advantage and could be
a threat[80]


Technological innovation is not the focus of (most) of the oil and gas industry

the examples provided when introducing strand 1, which suggest that there is
significant innovation and use of technology in oil and gas, a strong message
was that the essence of the oil and gas industry is getting a commodity out of the
ground. It is this, rather than the technology, which is ultimately sold on to end
users. For holders of the production and exploration licences the focus is on
extracting oil and gas as cost effectively and safely as possible. From this
perspective oil and gas was termed as “plumbing”[81], or
being “agricultural”.[82]
Further, technological innovation is not in itself seen as a means of a
business succeeding or advancing in the market. New technologies were
considered to have been based on the incremental development of existing
technologies rather than upon a more radical approach to how one seeks to
extract the oil and gas.

stuff [oil and gas] is so valuable that the imperative is to get as much of it
out and not disrupt operations designed to achieve this[83] 

aim is to secure the most valuable acreage….then you are sitting on the value.
Accessing the technology to produce that resource you can to some extent afford
not to be a pioneer. You can afford for the industry to develop sufficiently so
you can apply once they have derisked a bit…In the main not selling technology
in its products…we are selling commodity products…that drives a slightly
different mindset to technology  [84]

usually around the edges
my view is that they
only innovate within the bounds or their existing market. They don’t think any

further probing interviewees agreed that solving practical problems in a new
and effective way was at the heart of what is carried out in the different
parts of the oil and gas industry on a daily basis. Yet, as the focus is on
solving problems for the business or a customer, the first workable solution is
often adopted and then matters move on rather than either pursuing what might
be a better solution or considering what greater use could be made of this
solution. Further,

is little measurement of applied near market innovation and technology
development. There is a good deal more that goes on near to market it is solution
orientated that is not recorded it just happens and goes through the system[86]

this picture can be misleading. To enable the identification, extraction and
sale of a commodity product on to customers there is a complex (or indeed
supply chain – and it was a common theme among interviewees that very few
people understood it. There is a role for technology at the different stages of
the supply chain, as is suggested by the technologies explored when strand 1
was introduced; further, after one interviewee referred to “plumbing” they then
referred to one type of technology – enabling a production take off system to
be floating, rather than fixed – which could be of use.  Interviewees noted

difficulty in working in the North Sea offshore is that it is more difficult
than onshore. Innovation methods had to evolve. In its very basic form it’s about
plumbing, but not in terms of detail[88] 

and gas is very innovative, in respect of product development and adoption but less
so in respect of process development.…It’s a game of 2 halves[89]  


Oil and gas industry is one of the most innovative industries in the world[90]

for the proposal, when technology is used and problems solved the
technology is frequently not developed by licence holders. It is mainly developed
by others and sold to them; so for it to actually proceed to market a licence
holder has to decide to buy it. Licence holders source technology from ‘service
companies’, which is a broad term. They may be large international corporations
(reference was frequently made to Schlumberger and Halliburton),[91]  one
of the large amount of small and medium enterprises (SMEs), or start up
companies which are funded through government support opportunities, corporate
ventures, venture capital or private equity. SMEs appear to fall in two
categories: those who seek to grow their business and technology such that it
is attractive to one of the large service companies (who will then buy the
smaller company); and those who are interested more in the technology than the
business.  There were repeated references to rumours that large service
companies might buy technologies which challenged the incumbent technologies in
order to ensure that they did not proceed, but no one was able to provide first
hand or clear details of such instances.

is interesting to note that the IP ownership provisions of the technology
supply contracts between operators and service companies were not considered by
operators to be significantly important, nor to be the subject of detailed
negotiations. Within the service companies sector the view of innovation,
technology and IP was very different. One interviewee stated in respect of one
company that it  

founded on innovation.…[They] try keep ahead of their competition by being
innovative.…Because the company was founded on innovation and technology and
they have kept it that way through their history everything is patented[92] 

the past, large international oil and gas companies have carried out more of
their own research and development and some still do.[93] This
can be a circular process depending on corporate views and structures from time
to time, and one interviewee stated that they were “never sure where in cycle
oil companies are”.[94]
Even if technology is developed internally, however, and patents sought in
respect of it, it appears that decisions in respect of technological
development are taken quite apart from those made in respect of the taking of a

when technologies have been developed, there was a strong consensus that the
oil and gas industry is risk averse and that there is a “race to be second”.
All parts of the industry need to be persuaded of the benefits of a technology
and by the results of the risks which have been taken, they hope, by someone
else before they would use it. There is
coalition of the willing” [95]
in respect of adopting new technologies.
It takes on average sixteen years
for a technology to move from invention to market acceptance.[96]
One example of a new technology
from a University of Edinburgh spin out company which encountered resistance (though
ultimately there was a successful sale of the business) was MTEM; a technology involving
electromagnetic means of detecting sub-sea and underground hydrocarbons.[97] The
difficulty had been in persuading customers that they needed the service, and
this had not been anticipated. 
More generally, interviewees stated that   

is queuing up to be second. No one wants to take risks putting something down
hole…because the risk if it does not work is massive[98]

is an idea that the industry might not seem very innovative but I could reel
off 20 companies who live and breathe innovation. It depends on who you speak
to and where you are in the supply chain.…The lack of awareness can be
frustrating and also that of the buyers absolutely wanting to be second.…In
Scotland there is a focus on wanting to be second and a desire not to be too

and gas is an almost schitzophrenic industry.…There is world class technology,
people and companies in Aberdeen
but it is also

details were provided of specific technologies which had failed because of the
race to be second, but there was strong consensus as to the issue. At least
some of the reluctance can be explained. Firstly, a key justification is the
importance of safety, particularly relevant when technology would be used for
drilling offshore. There is also the practical difficulty and cost of testing
technology onshore in appropriate environments,[101] to
establish that technology is safe.

hear a big theme from companies about access to field trials. Because it is so
health and safety related and so expensive, operators cannot just say who is
next in the queue, we will get you out there  tomorrow.
But  it [field testing] seems to 
happen so rarely, for companies have been up to  prototype demonstrator  stage
and are still trying to get access to field trials.[102]

of difficulties with adoption and testing some SMEs struggle to survive,
particularly if their funding (private or public) periods expire. Businesses or
developers with links with (or which are part of) a large business which has
activities offshore, and into which some testing could be incorporated, are at
a strong advantage.

second justification lies in contractual frameworks and finance. Both there is
reluctance to accept liability in respect of the consequences of use of new
technology and the financial rewards under contracts were said to be structured
in terms of time and cost. There is no incentive for delivering the outcome
more quickly and more cheaply. Accordingly if there is an established
technology which is sure to enable contractual obligations to be met, then why
would businesses to agree to try a new technology – particularly if the new
technology might not in fact actually be quicker and cheaper?  

industry is…risk averse.…This is contributed to by structure, production
targets set and someone [has] speculated a bit. So falling short of a target [by]
finding technology which could easily beat it, is not accepted practice[103] 

when the oil price is high (such as in 2012 and 2013) there is no incentive for
companies to adopt new approaches. The industry operates effectively and is
financially successful.

players [do] not need to innovate, [they are] not inclined to be innovative,
they make so much money why bother;
unless regulatory or
health and safety driven, big companies do not want to innovate[104]

at one hundred dollars a barrel…there is a paradox.…can be I [some will say]
just don’t need to do it. I don’t have pressure points. I don’t need to step
away from the norm[105]

was consideration by some interviewees of how this second perspective could be
addressed, using different management and business strategies and theories.  It
was considered to be key to ensure that when trying to encourage adoption of a
new technology one is dealing with appropriate decision makers within an
organisation, and that those leaders take a relevant view of the place of

banana skin is sorting out needs from wants…another banana skin is sorting out
technology champions versus economic buyers.[106]

challenge is whether the supply side can push forward ahead with its innovation
and then wait for the market to respond, with the risk that the market will not
like it. On the buy side, talk is cheap, even if they say they like it. The key
challenge is to move from want to need and the search for an opportunity.…The
government can help by having an energy strategy[107]

in response to the “race to be second” perspective, it was pointed out that
seeing the industry as in a race to be second can be a useful excuse to oneself
if one’s technology is not successful. It was pointed out that new technology
will or can be developed and accepted quickly if there is no other means by
which a problem can be addressed. If there is real demand, “rocket fuel”,[108] a
technology is more likely to get successfully to market and become the “holy

there is a strong enough need
technology comes
through it all[110]  

was told] I hate your technology but we will buy it…because without it we shut
the reservoir…when backs against the wall they get very innovative very quickly[111]

was felt, however, that practices and attitudes should evolve, to enable new
technology to be more sustainable outside these more extreme cases.   Cultural
change should be delivered.

[North Sea] is moving to a phase of being almost entirely technology led.
Innovation and technology development must come to the fore but the industry has
been found wanting in that area[112]

are a lot more grown up and a lot more patient…[Norwegians are] [m]ore
realistic about accommodating failure
It’s a cultural thing
it’s OK to fail in Norwegian society….It’s about quality of leadership
innovation leadership is very
difficult making right calls at right time[113]


IP is important but not essential to innovation and rarely a significant
obstacle to activity

examples of technology referred to in earlier in this article, and discussion
of practices of licence holders, indicated that patents are sought.[114] One
interviewee considered IP and innovation to be “symbiotic”.[115] The
industry is not blinkered, however, in respect of IP; – there is not a
mentality about patenting everything without thought but rather the goal is
“appropriate protection.[116] 
Some technology will be kept secret and sometimes seeking IP will be considered
too costly and too slow. Some service companies take an aggressive approach to
IP. They see it as an opportunity to protect and control their technology, to prevent
others using it without their consent and to prevail over their competitors.

is vital.
In technology
businesses, you can ascribe one quarter to one third of the value of your
business when you sell it to IP[117]

highly successful companies proliferated their patent portfolio and others [were]
highly successful with no patents but an enormous legacy of know how. And both
of those were on purpose…both can work and not work[118]

main challenges made in respect of IP was that it is very costly and time
consuming to obtain IP, to conduct freedom to operate searches, and that misguided
threats are often received which are misunderstood. All of this is a real
challenge for an SME. From the opposite perspective, large companies are so
concerned about contamination of their research and development that they are
reluctant to engage in discussions with others regarding collaboration.

IP does pose some problems. There was a strong sense, however, both that IP is
important as one means of innovators gaining value for their work and
investment and there is support for the more traditional argument that “IP
generates innovation as everyone tries to find a way around it”.[119] When
IP is sought it is done so in order to obtain market advantage and create an
important space in which to operate in the present and future. IP rarely
operates as a fundamental block to any key activity in oil and gas to the
extent that one company is able to control the activities of the entire
industry or a part of it.

the light of this it is not surprising that any suggestion that innovators
could be required to share their IP was seen as likely to stifle innovation and
investment. This view was held particularly by those funding innovation and those
advising companies who engage in innovation. It was suggested that a regime
requiring provision of greater access to technologies may lead businesses, or
their research and development divisions and IP holding companies, to leave the
UK – another relevant challenge to the proposal.  There was limited support for
other forms of reward which did not involve IP; say through a prize.[120] Supporters
of this were not so much motivated by control of technology but they stressed the
need for adequate reward. For start-up companies the goal of their leaders,
particularly those with expertise in science rather than business, might not be
money but rather fame – “recognition and reward”.[121] In
such a case a prize might well appeal. There was scepticism, however, about how
a prize could be funded. Others argued that a prize would not work, even if it was
very large, if it was for a technology which was core to a business. In this
context concepts of more sharing of technology and a commons based approach were
considered “naïve”.[122]

There can be collaboration and sharing

distinctions identified so far between activities in respect of oil and gas and
those in respect of renewable energy, and the comments above regarding sharing
and naivety, might suggest that there is little place in oil and gas for
sharing of technology. Yet there are many examples of collaboration. Different
parameters appear in particular to apply to sharing when technological
innovation involves not an opportunity for one business to improve and profit
but instead the solution to an acknowledged industry problem or work at the
very early stages of a technology.  

useful example is the response to the incident in Deepwater Horizon in the Gulf
of Mexico in 2010.[123]
Then there was an urgent need for technology which enabled wells to be capped
under water. The extent of the incident meant that this need was recognised by
governments, industry, industry bodies, academia and companies at an
international level. In the UK the industry body Oil and Gas UK established “OSPRAG”
– the Oil Spill Prevention and Response Advisory Group.[124] There
was involvement from the UK government, industry, relevant industry bodies,
academia and unions. A solution, the OSPRAG cap, was developed.

the Macondo incident in the Gulf, the industry worldwide looked at its
processes to protect itself from this happening again. One idea was to have a
means of capping a well under the sea. We built the first one of joint
use.…This was groundbreaking on a global scale…The real innovation was
government and industry working together to address the issue…industry,
government and unions.…[It was] unusual [to] have a trade association involved,
on behalf of its members, in manufacturing the cap[125] 

of reward for innovation, the competitive nature of the industry, and risk
aversion were swept aside. Although there is no reference to IP in the final
OSPRAG report[126]
 there was a strong consensus from interviewees that owning or controlling IP
in respect of the OSPRAG cap was not permitted to become an obstacle to the development
and use of the new technology, in emergencies, by all who needed it. There was
also a view, however, that once the immediate problem was solved, companies
would aim to provide their own solution to the problem, building on the work
which had been done. Once the problem is solved an opportunity arises. There
would be a return to the status quo.  

and the development of the cap, were a significant and unusual response to a
major incident. Yet collaborations are a well established part of the oil and
gas industry.  

of the richnesses in the industry environment in Aberdeen is the interaction
between companies and technologies. This [is] not that well reflected in other
parts of the world. There is an awareness and an almost oil and gas village
atmosphere created by having a number of major oil companies located together
in a city which creates a culture for creation of appropriate IP…multipartner
working of companies is very healthy[127]

established form of collaboration is through Joint Industry Projects. In these,
several companies including large operating companies and small start ups, combine
to solve a problem. This could operate nationally[128] or
these can have a long term impact. For example  one interviewee stated that
there had been

on smart well technology back in the 1990s…sowed the seeds of what, 15 years
later, is a billion dollar industry.[130]  

a similar theme there is the international Industry Technology Facilitator
(“ITF”). Founded in Aberdeen and established in 1999 this is a not for profit
company based upon a membership of service companies and oil and gas operators.[131] These
members of the ITF identify problems which need to be solved and then issue
to the developer community, which tends to be academia and small start ups or
university spin outs. The ITF will broker a solution for the development of the
technology.  Following established practice of the ITF the work will be paid
for by the interested member companies, the providers will own the IP and the
member will be able to use the new technology on the basis of a non-exclusive royalty
free licence. This model has been successful and delivers to all involved what
they wish most: the companies obtain technology which, consistent with the
points made above, is that they want to solve problems, and the developers
obtain funding and retain the IP.  This is also set out in the ITF standard
form contract.[133]
Changes to, and negotiation of, the standard form contract are rare and there
was a strong feeling that any attempt to do this is improper and inconsistent
with the aims of the ITF. Yet the ITF

around £10million a year. This is a drop in the ocean in comparison to what is
being spent in developing new technologies…it may fill a hole or push people in
new areas…[or] seed new ideas. But is never going to be a big deliverer unless
there is a huge amount more money available[134]

Joint Industry Projects and ITF suggest that there is a level of collaboration
and discussion within the oil and gas industry and some degree of liaison
between the providers and seekers of technology. This is supported both by the
existence of industry bodies such as Oil and Gas UK[135] and
Subsea UK[136]
and by the collaborations between industry and DECC through PILOT (as discussed
above in the introduction of strand 2). Valuable opportunities for
collaboration between industry and academia are also being provided in Scotland
to university spin outs, such as the Technology Strategy Board Innovation
system; and through technology transfer and business development units there exists
expertise within universities to assist in engaging with industry and the

build on this, there was a strong consensus that there needed to be more
understanding across the industry and by policymakers of how all aspects of the
supply chain worked in oil and gas. There needed to be more awareness of ongoing
activities, of technical opportunities provided in different parts of the
industry and in academia, more skilled operatives at all levels of the supply
chain, and more awareness on the part of academia as to what industry needs. In
essence industry, academia and policymakers all need to be able to speak each
other’s language.

academia [is] left to deliver it will miss the mark. Oil and gas industry needs
to be actively involved in innovative research[138]

a valuable skill set of people who have enough technical knowledge to have a
conversation with universities and enough background in relevance of what being
done to the business and ability to translate between the two worlds. There
actually aren’t many[139]


There should be different regulation

was a strong feeling that new approaches to regulation needed to be taken in
order to encourage more use of new technology in oil and gas in Scotland. A
present cycle of risk aversion and comfortable profit making needed to be
broken, even taking into account the need for safety to be a priority.  One
interviewee considered that if there was not more collaboration in areas which
are recognized as important technical challenges, and instead solely a focus on
immediate financial reward and a race with competitors, the resulting “tunnel
 could lead to technology being lost.  They considered this an issue to which industry
and policymakers should address their attention.

interviewees mentioned that in Norway the state intervenes more in respect of
funding, development and requiring use of technology, although there was some
concern that governments are rarely the best pickers of technology and thus it
would not be helpful for government to require that particular technology sets
are used. It was suggested that the UK government, through DECC, could require
that particular levels of extraction were met. Yet there was also a strong
consensus that any government or regulatory action in respect of innovation and
technology must remain proportionate and appropriate as otherwise businesses
will simply leave.

on a global basis if UKCS is not competitive companies will invest elsewhere. They
have done this in the past[141]

steps have already been taken in Scotland to address both some of these issues
and the need for greater understanding across industry and academia. There are,
for example. Energy Technology Partnerships working across Scottish
universities and industry[142]
including one for oil and gas.[143]
Additionally in 2012 Scottish Enterprise issued £10 million worth of funding in
respect of specific technical challenges,[144]
 to which the industry has been “responsive”.[145]  The
need for further training led to the announcement of the Oil and Gas Academy of
Scotland in 2013[146]and
the Scottish Government is looking to establish an Oil and Gas Innovation
as part of its programme to enhance innovation.  At policy level the Oil and
Gas Industry Leadership Group in Scotland[148]
was established in 2009 and a UK Oil and Gas Policy was developed 2013.[149] Interviewees
considered that this new focus on oil and gas stemmed from concerns about
energy security (interesting in the light of points made in strand 1 in this
respect), the importance of the ongoing tax revenue which comes from oil and
gas, and a realisation that not all involved in oil and gas are large
international companies and so could benefit from some policy and funding

this pilot study was carried out almost in parallel with discussions by
government, industry leaders and the academy regarding the future of oil and
gas in Scotland. This led to the publication by The Oil and Gas Industry
Leadership Group of “Oil and Gas Strategy 2012-2020”.[150] The
importance of oil and gas was recognized:

there has understandably been a recent focus on developing the opportunities
around the renewable sector in Scotland, it is also vitally important to
recognise the long-term importance of the oil and gas sector in its own right.…Ensuring
the maximum recovery of resources will have a number of benefits. It will have
a significant impact on our energy security and make a considerable
contribution to both the balance of payments and throughout taxation to
government finances. In addition, the sector and its supply chain will develop
the technologies and capability to remain a driver of wider economic activity
and growth.[151]

production levels will be determined not just from investment in new fields but
also from the development of incremental fields close to existing
infrastructure and from extending the life of existing fields. In all these
instances, the role of technology and innovation to drive investment and
therefore output will be crucial. Current recovery levels across the sector
average around 40%, although this varies by individual fields. This is low when
compared to some other provinces. Even an apparently small percentage increase
in recovery rates can lead to significant future opportunities.[152]

of the findings of the pilot study, Oil and Gas Strategy 2012-2020 aims to

priorities for innovation, and for priority technologies to be supported and
deployed more rapidly to market, to help increase recovery levels in the
long-term.…Develop a more coherent approach to oil and gas Innovation.…Increase
investment in innovation[153]

UK is acknowledged for its excellence in many technology areas – most notably
in subsea and deep and ultra deep water developments. Technology has already
led to many fields in the North Sea extending beyond their initial shelf life
and additional millions of barrel of oil and gas being received. However, the
UK Continental Shelf (UKCS) remains one of the slowest provinces to adopt new
technology. The average time from proof of concept to market penetration in the
oil and gas industry worldwide has been estimated at 16 years but there is
evidence that the UKCS takes significantly longer than this. By contrast Norway
is achieving its technology goals, set out in its OG21 framework, and has
successfully accelerated development from proof of concept to market
penetration in around 8-10 years. … The challenge is, therefore, to ensure that
technology comes to market more quickly in the future to improve recovery and
aid efficiency.[154]

is interesting to note that not all those interviewed in the pilot study were
aware of the Oil and Gas Strategy 2012-2020, which in turn suggests the need
for wider engagement and more conversations across the industry as suggested
above. Oil and Gas Strategy 2012-2020 proposes that its goals are delivered by
increased public sector funding, more engagement with industry through PILOT, a
long term research and development plan, more funding from Scottish Enterprise,
more engagement with industry, more international research facilities in
Scotland (building on the success of the National Subsea Research Institute,
which aims to build strategic direction and research and skills and link
academia and industry)[155]
and closer links between academia and industry to stimulate investment in
applied technology and bringing it to market.[156]  Some
of the writers of the Oil and Gas Strategy 2012-2020 document were interviewed
in the pilot study. They made clear that its aim was to bring together and
recognise existing established and new activities, and enable further dialogue
and conversation. In the light of this, it is perhaps not surprising that there
is little reference in the Oil and Gas Strategy 2012-2020 document to either IP
law, world trade law which requires IP to exist,  or to the possibility of
Scottish independence depending on the results of the 2014 referendum[157]
even though this could lead to significant change both in the surrounding legal
network in respect of IP and also regarding regulation in respect of the UKCS.
The position on these points from a legal and political perspective remains
highly unclear. [158]   

Since this pilot study was
completed the importance of technology has been recognised in industry and
policy activity. Some examples include the Aberdeen Chamber of Commerce’s 18th
Oil and Gas Survey[159]
and the report “Maximising the Return from Oil and Gas in an Independent
which led to the establishment of the Independent Expert Commission on Oil and
 This will report in Spring 2014 and is said by the Scottish Government to be “
to ensuring that an oil and gas framework is developed, built on engagement
with industry, and that the industry itself has the optimum conditions to
innovate, grow and thrive in a globally competitive market.”[162]

At UK level, as noted above, the
Government published the “UK Oil and Gas: Business and Government Action” in
March 2013.[163]
The key initiatives in the strategy include improvement of safety,[164]
review and knowledge of supply chain,[165]
PILOT and its ongoing work raising awareness of technology (particularly in key
sectors), linking suppliers and industry demand,[166] and
increased investment in technology and growth in implementation. [167]  The
document notes the similarities with Scotland’s Oil and Gas Strategy 2012-2020
discussed above.[168]
Further the Wood Review, “UK Continental Shelf Maximising Recovery” was
established in June 2013.[169] 
In its interim report from November 2013, it proposed changes to the regulatory
structure and regulator to enhance stewardship and collaboration.[170] This
report states that the final report, expected in 2014, will explore technology.[171] 
DECC and Oil and Gas UK have also been considering technology leadership.[172] 

indicated in some of the quotes, Norway has been active in encouraging
increased use of technology.   “OG 21” (Oil and Gas in the 21st
Century: Norway’s Technology Strategy for the 21st Century)[173]
takes a different but detailed approach to this issue than that proposed in the
Scottish document considered above. OG21 sets out areas of strategic importance;
relevant here are Exploration and Increased Recovery,[174]
Cost-effective Drilling and Intervention,[175]
and Future Technologies for Production, Processing and Transportation.[176] 
Plans are made for future activities involving Statoil (in which the Norwegian
government owns the majority of shares)[177]
and others such as international service providers. Collaboration and state
involvement, including links between public research funding and importantly
support for pilot sites and prototypes, [178]
are at the heart of the policy. 


new problem has been identified – how to encourage the embracing of new
technology in oil and gas in Scotland. It is clear that new technologies can
succeed if they are the only solution to a particular problem (as was
considered in the “I hate your technology” quote) or if there is an industry
need. Beyond this however culture change is required. To complement the Oil and
Gas Strategy 2012-2020 plans therefore, and building on the pilot study, an initial
proposal is made here which seeks to contribute to the wide innovation
landscape discussed above from a more practical perspective.  

could be made to the model production licence contracts to require that a higher
percentage be extracted from the reservoir, taking into account relevant geology
in each case. Work programmes which included such commitments could be accorded
greater weight in the decision making process regarding the award of licences.[179]  Within
the existing framework it could be required that “appropriate work programmes”
are submitted and carried out in respect of existing licences, to exploit the
rights to the “best commercial advantage”.  Either approach could lead to greater
demand for technology, particularly those which might involve more radical
change across the different parts of the supply chain relevant to
identification and extraction.  If the targets are not met and steps are not
taken, the licence might be revoked.[180]

solution based on levels of recovery has an element of clarity which should
help avoid the key problem of “uncertainty”[181]
that was considered by interviewees to be a real risk of changing the
regulatory framework. The suggested approach should encourage licence holders
to be more proactive in their use of new technologies, and to take a new
approach to contract negotiation and the encouragement of appropriate risk
taking. This would enable markets to develop rather than be led by the state as
in the Norwegian approach.

holders should take this new approach not from the perspective of a race
against competitors (where, as seen, they might choose to be second); rather,
it is a race against themselves within their block and licence and one which
should be pursued using the most appropriate mix of technologies which can be
developed at the time. The distinction between the problem and opportunity
based approaches to innovation would be removed. The comfort blanket of high
oil prices would be addressed and exploring the possibilities raised by new
technology would be made a more central part of oil and gas business; there
would be culture change and a new market based on need and openness to change
could develop. Yet, given the points identified regarding testing and the more
entrenched race to be second, it may be difficult for there to be technology
which would meet the needs. There would need (as is also identified in OG21)
therefore to be greater opportunities to test new technologies, offshore and
onshore,  in order to establish that
they are safe.

This new proposal would bring
about a different change to regulation, innovation and new technology to that
envisaged at the start of the project. Nonetheless, it combines strands 2 and
3. It uses the oil and gas licensing model and additionally draws upon the
existing collaborative opportunities and ongoing initiatives in oil and gas
which were noted above (though they are distinct from the sharing which formed
part of strand 3) which would be one part of the framework that could enable
these technologies to be developed provide greater opportunities for their testing.
If this proposal is adopted it could lead to more radical innovation, and the analysis
of developments would also contribute to the innovation landscape.   The next
stage of my project is to engage with the other initiatives discussed above, to
share the details of the pilot study and of the initial proposal, and to engage
in discussions regarding policy adoption.  A Knowledge Transfer grant has been
obtained from the University of Aberdeen in this regard.[182]

new proposal also creates further possible avenues of scholarly enquiry in
relation to the control and regulation of innovation and the power of IP
discussed in strand 1. The proposed changes to the regulatory framework (or
exploitation of it more fully) would not raise obligations under TRIPS (if they
should remain for Scotland). The proposal is quite distinct from IP; and so IP
will still be available for those who seek it. If IP should become a block in
some cases (say, to energy security) this solution will not directly assist.  Yet
the new proposal, if adopted, could lead to contributions to IP scholarship. 
The proposal involves increased state regulation of private activity in respect
of a valuable natural resource (oil and gas) which could bring about a benefit
for all. The impact of this new state control (and the different approaches
taken by the state in Scotland and in Norway) would be an interesting analogy
to consideration of the power of the state, communities, companies and
individuals in respect of genetic resources. This also involves other forms of
national and international regulation, under the auspices of the Convention on
Biological Diversity and ongoing work at the World Intellectual Property
 There are also different analogies with attempts by private entities to obtain
IP in respect of products or processes which relate (very closely) to the other
raw materials of information and the body – notably in respect of in respect of
and geospatial data.[185]
Comparison and analysis of the impact of this new proposal, if it is adopted,
could also contribute to the established body of scholarship which explores the
relationship between public power, private power and public and private benefit
in respect of IP.[186]


has been an interesting journey. Scholarly solutions which are appealing on
paper might be far removed from commercial reality and the value of looking
widely and seeking to combine distinct strands has been confirmed; but in a
manner quite different from that envisaged.

pilot set of interviews of a small selected group of people with a wide range
of expertise across the oil and gas industry in Scotland suggests that the
initial proposal cannot be supported: the energy sector cannot provide solutions
which would be readily acceptable to questions of the power of IP. Further, IP
does not pose a significant practical barrier to the development of technology
and its adoption in oil and gas in Scotland.

a valuable issue was identified in the pilot study; a new culture should be
created in respect of technology in oil and gas in Scotland. The new preliminary
proposal made here is that new approaches to licensing and goal setting, within
a familiar regulatory regime, can assist in bringing about more use of
technology in the oil and gas sector. This could be done having regard to two
of the three strands identified.     A next stage of the project is to share
the results of this pilot study with industry leaders and policy makers working
in technology and oil and gas along with seeking wider opportunities for
testing, widening and challenging the results.   From the more scholarly
perspective, if adopted the proposals will prove a useful contribution to
debates regarding innovation and private and public power.

summary, this has been a small study leading a preliminary proposal but it
suggests a base for further timely research and engagement. Energy, innovation
and Scotland all deserve it.




* Senior Lecturer,
University of Aberdeen

author would like to thank all those who kindly agreed to be interviewed in the
pilot study, and those who suggested possible interviewees.  Thanks also to
Professor John Paterson, Professor Peter Duff and Greg Gordon of the Law
School, University of Aberdeen, for their helpful comments, and to anonymous 
peer reviewers from SCRIPT-ed.

[1] OECD, “Patents and
Innovation. Trends and Policy Challenges” (2004)
http://www.oecd.org/science/sci-tech/24508541.pdf (last accessed 2
February 2014); The Pharma Letter, “Report” India pharma companies’ innovation
increasing but fails to match Europe” (10 January 2014)
http://www.thepharmaletter.com/article/report-indian-pharma-companies-innovation-is-increasing-but-fails-to-match-europe (last accessed 2
February 2014); S Thambisetty, “Why Patent Law Doesn’t Do Innovation Policy
LSE Working Papers
http://www.lse.ac.uk/collections/law/wps/WPS2013-20_Thambisetty.pdf (last accessed 2
February 2014), pages 2-5; T Schmidt and C Rammer,
“Non-Technological and Technological Innovation: Strange Bedfellows?” (2007)
ZEW – Centre for European Economic Research Discussion Paper No. 07-052
ftp://ftp.zew.de/pub/zew-docs/dp/dp07052.pdf (last
accessed 2 February 2014).

[2] B H Hall et al,
"The importance (or not) of patents to UK firms," Oxford Economic
, Oxford University Press, (2003) vol. 65(3), pages 603-629, July
(see also http://elsa.berkeley.edu/~bhhall/papers/HHRS13_OEP_final.pdf) (last
accessed 2 February 2014).

[3] PA Geroski,
"Intellectual Property Rights, Competition Policy and Innovation: Is There
a Problem?", (2005) 2:4 SCRIPTed 422
http://www.law.ed.ac.uk/ahrc/script-ed/vol2-4/geroski.asp (last accessed 2
February 2014); M Glader, Innovation, Markets and Competition Analysis
(Cheltenham: Edward Elgar, 2006); CM Christiansen, Innovator’s Dilemma: when
new technologies cause great firms to fail (management of innovation and
(Cambridge, MA: Harvard Business School Press, reprint 2013).   

[4] The Global Innovation Index 2013 http://www.globalinnovationindex.org/content.aspx?page=GII-Home (last accessed 2 February 2014).

[5] See Scottish Government Business
activities in respect of Science, Technology and Innovation
http://www.scotland.gov.uk/Topics/Business-Industry/science (last accessed 2 February 2014).

[6] Department for Business,
Innovation and Skills
https://www.gov.uk/government/organisations/department-for-business-innovation-skills (last accessed 2 February 2014).

[7] Innovation Union http://ec.europa.eu/research/innovation-union/index_en.cfm
(last accessed 2 February 2014); and Horizon 2020
, the European Framework
Programme  for Research and Innovation
http://ec.europa.eu/programmes/horizon2020/ (last accessed 2 February 2014). 

[8] Eg E von Hippel, Democratizing
(Cambridge MA: MIT Press, 2005) available via Creative Commons
http://web.mit.edu/evhippel/www/books.htm (last accessed 2
February 2014), considering the impact of users and communities in driving
innovation and developing what they need. 

[9] See World Intellectual Property
Organisation Conference  “Open Innovation: Collaborative Projects and the
Future of Knowledge (22-23 January 2014)” 
http://www.wipo.int/meetings/en/details.jsp?meeting_id=31762 (last accessed 2 February 2014).

[10] UK Patent Box http://www.hmrc.gov.uk/ct/forms-rates/claims/patent-box.htm (last accessed 2
February 2014); Copenhagen Economics, “Innovation of Energy Technologies: the
Role of Taxes” (November 2010)
http://ec.europa.eu/taxation_customs/resources/documents/common/publications/studies/taxation_energy_innov.pdf (last accessed 2
February 2014).

[11] See M Rimmer, Intellectual Property and Climate Change:
Inventing Clean Technologies
(Cheltenham: Edward Elgar, 2011) (“Rimmer”),
chapters 7-9;
J Love and T Hubbard, “The Big Idea: Prizes to Stimulate R
& D for New Medicines” (2007) 82 Chicago-Kent Law Review 3, 1519.
Examples of prizes  include   Scotland’s Saltire Prize for Marine Energy,
http://www.saltireprize.com/  (last accessed 2 February 2014) and UK Ca
rbon Capture storage prize
commercialisation competition
https://www.gov.uk/government/policies/increasing-the-use-of-low-carbon-technologies/supporting-pages/carbon-capture-and-storage-ccs (last accessed 2 February 2014);
an example of a private public partnership is the
Malaria Vaccine Initiative
(last accessed 2 February 2014).

[12] This was considered in evidence
given at hearings in 2002 held by the United States Federal Trade Commission
and Department of Justice, “Competition and Intellectual Property Law and
Policy in the Knowledge-Based Economy” 
http://www.ftc.gov/news-events/events-calendar/2002/02/competition-ip-law-policy-knowledge-based-economy-hearings (last accessed 2 February 2014),
see eg
http://www.ftc.gov/sites/default/files/documents/public_events/competition-ip-law-policy-knowledge-based-economy-hearings/020220trans.pdf and http://www.ftc.gov/sites/default/files/documents/public_events/competition-ip-law-policy-knowledge-based-economy-hearings/020225transc.pdf (both last accessed 2 February

[13] See sources
“Resumption of shale gas exploration” on DECC, “Oil and Gas Exploration and
Production” webpage
(last accessed 2 February 2014);

to Parliament by Rt Hon Edward Davey December 2012
(last accessed 2 February 2014).

[14] See eg wellhead
drilling technology developed by Plexus Plc, “Plexus brings New Engineering
Approach to Wellhead Technology” 
http://www.plexusplc.com/news-article/plexus-brings-new-engineering-approach-to-wellhead-technology (1 February 2013)
(last accessed 2 February 2014) and Schlumberger, “Schlumberger releases
wireless downhole reservoir testing system” (31 October 2013)
(last accessed 2 February 2014).

[15] See eg Subsea Technologies Ltd,
“STL awarded patents for unique subsea core connector technologies” (24 February
2012) http://www.subseatek.com/press/patent-subsea- (last accessed 2 February

[16] Chevron, “Human Energy Seismic
Imaging” (April 2013)
http://www.chevron.com/deliveringenergy/oil/seismicimaging/ (last accessed 2
February 2014), referring to proprietary technology.

[17] See Oil and Gas UK, “Economic
Report 2011. Decommissioning” considering the economic value of decommissioning
and the presence of  technical challenges
http://www.oilandgasuk.co.uk/economic_report/decommissioning.cfm (last accessed 2 February 2014);
compare from 2008
Subsea Research Institute,
“OP057 Topside and Pipeline Facilities Decommissioning: Guidance on
Conditioning /Cleaning  prior to Decommissioning/dismantling” 
http://www.oilandgasuk.co.uk/publications/viewpub.cfm?frmPubID=397 (last accessed 2 February 2014).
This refers to previous work of the Decommissioning Technology Forum.

[18] See eg Statoil,
“Statoil makes an investment decision for the Mariner project” (21 December
http://www.statoil.com/en/NewsAndMedia/News/2012/Pages/21Dec_Mariner.aspx (last accessed 2
February 2014); Statoil, “Statoil on track with Mariner field development
project” (3 September 2013)
http://www.statoil.com/en/NewsAndMedia/News/2013/Pages/03Sep_Aberdeen.aspx (last accessed 2
February 2014).

Eg Isle of Lewis projects on Wind
and Wavehttp://www.aquamarinepower.com/projects/north-west-lewis
(both last accessed 2 February 2014)

[20] Eg Offshore
Technology (Houston – international conference ) (
http://www.otcnet.org/2014/), Offshore Europe
http://www.offshore-europe.co.uk, All Energy
(Aberdeen) http://www.all-energy.co.uk/ (all last accessed 2 February 2014).

[21] See consideration of this by the
author, and the development of arguments from different perspectives to those
explored here, in
Brown (ed), Intellectual Property, Human Rights and Competition: Access to
Essential Innovation and Technology
 (Cheltenham: Edward Elgar, 2013).

[22] Key works exploring
this are FM Scherer, “The Innovation Lottery” in RC Dreyfuss, DL Zimmerman and
H First, (eds) Expanding the Boundaries of Intellectual Property: Innovation
Policy for the Knowledge Society
(Oxford: OUP, 2001); KE Maskus, “The
Economics of Global Intellectual Property and Economic Development: A Survey”
in P Yu (ed) Intellectual Property and Information Wealth: Issues and
Practices in the Digital Age: Volume 4: International Intellectual Property Law
and Policy
(Santa Barbara: Praeger, 2007); RM Sherwood, Intellectual
Property and Economic Development
(Nashville:Westview Press Inc, 1990); C Greenhalgh and  M Rogers,
Innovation, Intellectual Property, and Economic Growth (Princeton: Princeton
University Press, 2010). Note
Lemley, “Ex Ante versus Ex Post Justifications for Intellectual Property” (2004
(71) University of Chicago Law Review 129 (Lemley) considering the
extent to which these two arguments can be properly combined and the different
consequences which would result.

[23]See discussion in
Report of the Commission on Intellectual Property Rights, “Integrating
Intellectual Property Rights and Development Policy” (2002), chapter 2
available at
(last accessed 2 February 2014).

[24]Geneva Declaration on
the Future of the World Intellectual Property Organization, available at 
http://www.cptech.org/ip/wipo/futureofwipodeclaration.html (last accessed 2
February 2014); PK Yu, “Currents and Crosscurrents in the International
Intellectual Property Regime” (2004) 38 Loyola of Los Angeles Law Review
323-443; D Matthews, Intellectual Property,
Human Rights and Development: The Role of NGOs and Social Movements

(Cheltenham: Edward Elgar, 2011); S Haunss, “The politicisation of intellectual
property: IP conflicts and social change” (2011) 3  World Intellectual
Property Organization Journal
1, 129–38.

[25] R Mayne, “The Global
Campaign on Patents and Access to Medicines: An Oxfam Perspective” in P Drahos
and R Mayne (eds), Global Intellectual Property Rights: Knowledge, Access
and Development
(Basingstoke: Palgrave Macmillan, 2002) (Drahos/Mayne); E
Cameron and J Berger, “Patents and Public Health: Principle, Politics and
Paradox” Inaugural British Academy Law Lecture, 2004, available at
http://www.law.ed.ac.uk/ahrc/script-ed/docs/cameron.asp (last accessed 2
February 2014); A Kapczynski, “The Access to Knowledge Mobilization and the New
Politics of Intellectual Property’ (2008) 117 Yale Law Journal 804-885;
A Kapczynski, “Access to Knowledge: A Conceptual Genealogy” in G Krikorian and 
A Kapczynski (eds), Access to Knowledge in the Age of Intellectual Property
(New York: Zone Books, 2010)
http://www.zonebooks.org/pdf/ZoneBooks_A2K_.pdf (last accessed 2
February 2014).

[26] Declaration on the
TRIPs agreement and Public Health’, DOHA WTO MINISTERIAL 2001: TRIPs. Adopted
on 14 November 2001, WT/MIN(01)/DEC/2 20 November 2001 (Doha Declaration)
available at
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm; Decision of the
General Council of 30 August 2003 Implementation of paragraph 6 of the Doha
Declaration on the TRIPS Agreement and public health (1 September 2003),
available at
http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm; World Trade
Organization Decision of the General Council 6 December 2005,  ‘Amendment of the
TRIPS Agreement’, WT/L/641, available at
(all last accessed 2 February 2014).

[27]See information and
sources “Access to Knowledge”
http://www.cptech.org/a2k/ (last accessed 2
February 2014) and Yale University Information Society  led project “Access to
http://www.yaleisp.org/access-knowledge (last accessed 2
February 2014).

[28] See webpage and resources http://www.who.int/phi/en/ (last accessed 2 February 2014).

[29] See J Woiceshyn and U Daellenbach,
“Integrative capability and technology adoption: evidence from oil firms”
(2005) Industrial and Corporate Change 14(2) 307-342
http://icc.oxfordjournals.org/content/14/2/307.full.pdf (last accessed 2 February 2014);  KS Gallagher, JP Holdren, AD
Sagar, “Energy-Technology Innovation” (2006) Annual Review of Environmental
31:193-237; E Verdolini and M Galeotti, “At home and abroad: An
empirical analysis of innovation and diffusion in energy technologies” (2011) Journal
of Environmental Economics and Management
61(2) 119-234

[30] See M Ewan, “Law and
Technology in the Oilfield” (Ewan) in G Gordon, J Paterson and E Usenmez (eds),
Oil and Gas Law – Current Practice and Emerging Trends (Dundee: Dundee
University Press, 2011) (Gordon); J Wils and E Neilson (eds), The Technical
and Legal Guide to the UK Oil and Gas Industry
(Aberdeen: Aberlour Press,
2007); and Coflexip SA v Stolt Comex Seaway MS Ltd [2001] R.P.C. 9, United
Wire Ltd v Screen Repair Services (Scotland) Ltd
  [2000] 4 All E.R. 353; Schlumberger
Holdings Ltd v Electromagnetic Geoservices
AS [2010] R.P.C. 33; Rockwater
Ltd v Coflexip SA
[2003] EWHC 812 (Pat) and 2003 S.L.T. 1197; ITP SA v
Coflexip Stena Offshore Ltd
2003 S.L.T. 1197 and 2005 1 S.C. 116; Total
Containment Engineering Ltd v Total Waste Management Alliance Ltd
CSOH 135.

[31] AEL Brown (ed), Environmental
Technologies, Intellectual Property and Climate Change. Access, Obtaining and
(Cheltenham: Edward Elgar, 2013) and project website “Obtaining,
protecting and using essential environmental technologies: a holistic analysis”
http://www2.law.ed.ac.uk/essentialtechnologies/ (last accessed 2
February 2014); Rimmer see note 11 above; J Barton, “Intellectual Property and
Access to Clean Energy Technologies in Developing Countries: An Analysis of
Solar Photovoltaic, Biofuel and Wind Techologies” International Centre for
Trade and Sustainable Development Trade and Sustainable Development Series

Issue Paper 2 (2007)
http://ictsd.org/i/publications/3354/?view=document (last accessed 2
February 2014);  FG Braun, J Schmidt –Ehmcke, P Zloczysti, “Innovative Activity
in Wind and Solar Technology: Empirical Evidence on Knowledge Spillovers Using
Patent Data” (2010)
https://www.diw.de/documents/publikationen/73/diw_01.c.354961.de/dp993.pdf and http://ideas.repec.org/p/cpr/ceprdp/7865.html (last accessed 2
February 2014).

[32] United Nations Framework Convention
on Climate Change meeting which led to the Copenhagen Accord
https://unfccc.int/meetings/copenhagen_dec_2009/items/5262.php (last accessed 2 February

[33] F Abbott, “Innovation
and Technology Transfer to Address Climate Change: Lessons from the Global
Debate on Public Health” International Centre for Trade and Sustainable
Development Intellectual Property and Sustainable Development Series
Paper 24 (2009)
http://ictsd.org/downloads/2009/07/innovation-and-technology-transfer-to-address-climate-change.pdf (last accessed 2
February 2014); AEL Brown et al , “Towards a
Holistic Approach to Technology and Climate Change: What Would Form Part of an
Answer?” (25 October  2010). U. of Edinburgh School of Law Working Paper
No. 2010/32. Available at SSRN:
http://ssrn.com/abstract=1697608 (last
accessed 2 February 2014), in particular at 16.

of Energy and Climate Change Energy Security webpages
http://www.decc.gov.uk/en/content/cms/meeting_energy/en_security/en_security.aspx  (last accessed 2 February 2014);  UK
House of Commons, “The UK’s Energy Supply? Security or Independence?”
(last accessed 2 February 2014)
;  E  Usenmez, “The
UK’s Energy Security” in Gordon see note 30 above;  EU Energy Roadmap 2050
(last accessed 2 February 2014).  

[35] See
Technology Strategy Board, “Driving Innovation: Energy” 
(last accessed 2 February 2014).

[36] For a study with an
industry and technology  focus, see Research and Markets, “Energy Security
Market – Power Plants Technology and Professional Services Analysis to 2018”
(August  2013)
http://www.researchandmarkets.com/research/j4p3pn/energy_security (last accessed 2
February 2014); for references (though limited) to energy security and IP in
governance discussion, see The Energy and Resources Institute, “Energy in the
international policy arena: determining the role of multilateral institutions” 
TERI-NFA Working Paper No 1
http://www.teriin.org/projects/nfa/pdf/Working_paper1.pdf (last accessed 2
February 2014), section 2.1; Global Agenda Council on Energy Security, “White
Paper on Energy Security” (World Economic Forum, October 2012)
http://www.weforum.org/reports/white-paper-energy-security-and-global-warming (last accessed 2
February 2014), 11-12.

[37] G Gordon, “Petroleum
Licensing” (Gordon Licensing) in G
see note 30 above, at 69-72.

[38] See https://www.gov.uk/oil-and-gas-licensing-rounds (last accessed 2
February 2014).

[39] See eg Oil and Gas UK
and Department of Energy and Climate Change, “Guidelines for the Release of
Proprietary Seismic Data UKCS” Issue 4 December 2011
http://www.oilandgasuk.co.uk/cmsfiles/modules/publications/pdfs/OP066.pdf (last accessed 2
February 2014) – data can be obtained on an open access basis after a period of
time; for examples of operation of the system, see
https://www.gov.uk/oil-and-gas-digital-data-exchange-format  (last accessed 2
February 2014).

[40] Gordon Licensing, see
note 37 above in Gordon, see note 30 above, 74-76,84-6, 90-109, and
Applications for Production
Licences General Guidance (2014) (General Guidance)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/274620/28R_General_Guidance_and_Introduction.pdf,  and further details on “Types
of Licence on Offer” 
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/273694/28R_licence_types_SEA.pdf (both last accessed 2 February

[41] See Petroleum Act
, s 3(1) and
Licensing (Exploration and Production) (Seaward and Landward Areas) Regulations
 and Petroleum Licensing (Production)
(Seaward Areas) Regulations 2008, as amended by SI2009/3283; 
Department of Energy
and Climate Change Petroleum Licensing Guidance webpage
https://www.gov.uk/oil-and-gas-petroleum-licensing-guidance, including model
clauses (last accessed 2 February 2014);

discussion in
Licensing see note 37  above in Gordon see note 30 above.  

[42] PILOT webpage https://www.gov.uk/government/policy-advisory-groups/pilot (last accessed 2
February 2014).

[43] Gordon Licensing, see
note 37 above in Gordon see note 30 above, 87-90 and
Applications for Production
Licences General Guidance ( 2014), see note 40 above.

[44] Code
of Practice on Access to Upstream Oil and Gas infrastructure
(last accessed 2 February 2014)
; U Vass, “Access to
Infrastructure” and J Aldersey-Williams, “Competition Law and the Upstream Oil
and Gas Business” in Gordon see note 30 above.

[45] See DECC, “Oil and
Gas: fallow blocks and discoveries”
https://www.gov.uk/oil-and-gas-fallow-blocks-and-discoveries and DECC, “Oil and
Gas: fields and field development”
https://www.gov.uk/oil-and-gas-fields-and-field-development (with link to
Guidance notes on procedures for regulating offshore oil and gas developments,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265842/FDP_guidance_notes_November_2013_web.pdf para 6.1-6.3,
Appendix 1 and 11 (all last accessed 2 February 2014); DECC, “The Oil and Gas
Activities of Energy Development Unit” August 2013)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/237516/edu_booklet_Aug_2013.pdf (last accessed 2
February 2014)  10; and G Gordon and J Paterson, “Mature Province Initiatives”
in Gordon see note 30 above , at 113-136.

[46] See BBC, “On this Day
19 October”
http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_3769000/3769639.stm (last accessed 2
February 2014) and J Whaley, “The First Giant UK Oil Field” Geo Expro
http://www.geoexpro.com/article/The_First_UK_Giant_Oil_Field/29e0262c.aspx (last accessed 2
February 2014).

[47] See A Kemp, “Evolving Economic
Issues in the Maturing UKCS”,  J Paterson, “Health and Safety at Work
Offshore”, L Havemann, “Environmental Law and Regulation in the UKCS”,  S
Styles, “Joint Operating Agreements”,  G Gordon, “Risk Allocation in Oil and Gas
Contracts” and M Ross, “Dispute Management and Resolution” all  in Gordon see
note 30 above;  Applications for Production Licences General
Guidance (2014), para 47, see note 40 above; Health and Safety Executive
“Offshore Health and Safety Law” updating as to developments since 2013 
http://www.hse.gov.uk/offshore/law.htm (last accessed 2 February 2014).

[48]Lemley see note 22 above.

Which is itself a controversial area, see some discussion in E Usenmez, “The UK
Fiscal Regime” in Gordon see 31 above and at  Oil and Gas UK, “Knowledge
Centre: Taxation”
(last accessed 2 February 2014).

[50] Term in UK is 20
years for patents Patents Act 1977 s 25  and the life of the author plus
70 years, in most cases, for copyright Copyright Designs and Patents Act
, s 12-15; at international level, see TRIPS Agreement establishing the
World Trade Organization 1994, available at
http://www.wto.org/english/docs_e/legal_e/legal_e.htm#wtoagreement, incorporating
Agreement on Trade Related Aspects of Intellectual Property Rights (Annex 1C)
(“TRIPS”) (last accessed 2 February 2014), article 33 (patent) and 12
(copyright). Exceptions, for copyright, see article 30 and 13 for patent,
TRIPS, and in the UK Patents Act 1977, s 60(5)  and Copyright Designs
and Patents Act 1988,
s 28 et seq. For  territory in the UK see eg Copyright
Designs and Patents Act 1988,
  s 16 and Patents Act 1977, s 60.

[51]See TRIPS, note 50
above, discussion in P Drahos, “Negotiating Intellectual Property: Between
Coercion and Dialogue” in Drahos/R Mayne note 25 above. For details of EU
related instruments, see European Commission, “The EU Single Market.
Intellectual Property”
http://ec.europa.eu/internal_market/intellectual-property/index_en.htm (last
accessed 2 February 2014). 

[52] Eg
Royal Dutch Shell Annual Report (2012)
(last accessed 2 February 2014), pp11, 12;  discussions of patents held by
companies who often  hold licences, in R Chauhan, C Cannas, A Kumar,
“Breakthrough technology and incremental innovation in Oil and Gas industry” 
(last accessed 2 February 2014) (7,8,15,20,26); GE Oil and Gas “Drilling and
http://www.ge-energy.com/content/multimedia/_files/downloads/Focused%20on%20the%20future%20-%20GE%20Oil%20%26%20Gas.pdf (last
accessed 2 February 2014) 18, Chevron technology referred to at note 16 is the
subject of a patent and  see Ewan see note 30  in Gordon see note 30 above.

[53] See Frequently asked questions about the Gigha windmills
(last accessed 2 February 2014)

[54]Eg BP
Alternative Energy webpage
(last accessed 2 February 2014).

[55] Talisman Energy,
“Beatrice Windfarm Demonstrator Project” 
http://www.beatricewind.co.uk/home/default.asp (last accessed 2
February 2014).

[56] E Ostrum, Governing
the Commons The Evolution of Institutions for Collective Action
Cambridge University Press, 1990); MA Heller, “The Tragedy of the Anticommons:
Property in the Transition from Marx to Markets” (1998) 111(1) Harvard Law

[57] Eg Creative Commons http://creativecommons.org/about/history (last accessed 2 February 2014).

[58] Eco-Patent Commons,
available at
accessed 2 February 2014); see discussion in A Boynton “Eco-Patent Commons: A
Donation Approach Encouraging Innovation Within the Patent System” (2011) 35 William
and Mary Environmental Law and Policy Review

Hall and C Helmers “Innovation and Diffusion of Clean/Green Technology: Can
Patent Commons Help?” 2013 Journal of Environmental Economics and Management
66(1) 33-51.

[60] For work in this field, see  P
Rincorn “Battery advance could boost renewable energy take up”  (9 January
http://www.bbc.co.uk/news/science-environment-25674738 (last accessed 2 February 2014).

[61] The ideas developed here
were explored in AEL Brown A new
opportunity for delivering the commons: exploring the interface between
different legal fields”  working paper at
(last accessed 2 February 2014)
, presented at “Building Institutions for
Sustainable Scientific, Cultural and Genetic Resources Commons” at
Université Catholique de Louvain  in
September 2012. This considers this argument also from the perspective of other
legal fields, other forms of regulation and other form of solution – for
example, sharing the technology for free with the local community. 

[62] This
issue was explored at the start of the project as it built on my previous
research, see books referred to in notes 21 and 31 above.  The points regarding
other forms of legal regulation were explored with the interviewees, however
there was a strong message that other legal fields did not form part of the
innovation landscape in energy (with some notable exceptions in respect of
competition and collaboration agreements, and corporate social responsibility
and ethical policies, which lay outside the scope of this project). This issue
is therefore not explored further in this article. If you would like further
details of these aspects of the interviews, please do contact the author.
Private investors and their advisers, do have regard to these other areas of
law and they can consult for example the FTSE4Good if they are concerned about
the practices of a company. There was a strong acknowledgement that the
position in respect of oil and gas is more mixed than in respect of say
armaments, and an impression was not gained of opposition to investment in oil
and gas.     

[63] Consistent with note
63 above, these other questions were also included: (a) would obligations of states and businesses in respect of climate change
and  human rights, and competition and other forms of regulation, be considered
relevant by policymakers, innovators and funders?  (b) are those advising
policymakers, innovators and funders aware of this issue and the views held?
Whose responsibility is the question of
openness and equitable access, and addressing the global question of climate

[64] Oil and Gas UK,
“Economic Report 2012”
http://www.oilandgasuk.co.uk/cmsfiles/modules/publications/pdfs/EC030.pdf (last accessed 2
February 2014).

[65] Not revealed for confidentiality
(referred to in quotes below as “Industry Leader Oil and Gas 1”).

[66] Holders of senior
roles, two in a large international oil and gas companies (Industry
Practitioner Oil and Gas 1” and “Industry Practitioner Oil and Gas 2”) and one
in a large international drilling contractor, all for over 20 years. 

[67] One former in house lawyer to a
large international service company where they spent five years (referred to in
quotes below as “Industry Legal Oil and Gas 1”), one Legal Manager of
international oil and gas company with over 15 years in this and similar in
house roles (referred to in quotes below as “Industry Legal Oil and Gas 2”),
one Group General Counsel to large international drilling contractor with over
ten years in this and similar in house roles. 

[68] One partner in boutique law firm
with expertise in private equity with over 20 years experience  (referred to in
quotes below as “Private Practice Legal (different areas expertise) 1”), one
partner in international law firm with expertise in intellectual property and
technology with over 15 years experience “Private Practice Legal (different
areas expertise) 2”), one partner in international law firm with expertise in
intellectual property with over 20 years experience, one partner in
international law firm with expertise in energy and technology with over 30
years experience.       

[69] One investor in private equity with
focus on energy with over experience in engineering and six years experience in
private equity (referred to in quotes below as “Investor/Advisor to investor
(corporate and individual) 1”), two private investors seeking ethical
portfolios for over 20 years,  one expert in venture capital and  corporate 
ventures in oil and gas for over 15 years, one expert in stockbroking and
investment advice for high net worth individuals for over 15 years.

[70] Not revealed for confidentiality,
referred to in quotes below as “Policy making expert oil and gas 1”.

[71] Five experts from
innovation growth agency with many years of experience in different sets of
expertise relevant to energy (referred to in quotes below as “Policy
implementation expert 1-4”, one

not revealed for confidentiality reasons.

[72] One presently leading a pre
market technology company with a background in engineering who has worked
internationally in a range of oil and gas technology related companies and is
also experienced non executive director (referred to in quotes below as
“Entrepreneur Expert”) , one with over 20 years expertise in finance, industry,
and management buy outs  mainly in oil and gas.     

[73] Partner and founder boutique business advising on
intellectual assets (referred to in quotes below as “Business Advisor”), for
around 20 years. 

[74] Technology Transfer
Officer at
University, with over 10 years experience in such roles.

[75] Not revealed for confidentiality
reasons (referred to in quotes below  as “Industry Body Experts”).

[76] Consistent with the
points made above see notes 62 and 63 above regarding other legal fields, a
final theme was that “Other areas of law are not key solutions or obstacles”.

[77] Policy implementation
expert 1 see note 71 above. 

[78] Policy implementation
expert 1see note 71 above.

[79] Policy implementation
expert 2 see note 71 above.

[80] Policy implementation
expert 3 see note 71 above.

[81] Industry Legal (Oil and Gas) 2
see note 67 above.

[82] Industry practitioner
(oil and gas) 2 see note 66 above.

[83] Policy implementation
expert 1 see note 71 above.

[84] Industry practitioner
(oil and gas) 1 see note 66 above.

Business Advisor see note 73 above.

[86] Industry leader (oil
and gas) 1

see note 65

[87] Entrepreneur expert
see note 72 above.

[88] Industry body experts
see note 75 above.

[89] Entrepreneur expert
see note 72 above.

[90] Policymaking expert
(oil and gas) see note 70 above.

[91] It did not prove possible to
interview present service company staff, but an interview was carried out with
a former in house counsel from a large service company.

[92] Industry Legal (Oil
and Gas) 1 see note 67 above.  

[93] See note 67 above.

[94] Entrepreneur expert 
see note 72 above.

[95] Policy implementer 4 see note 71

[96] See eg reference in
“ITF urges Government to adopt single strategy for UK oil and gas technology
development” (31 March 2011) The Maritime Executive 
http://www.maritime-executive.com/article/itf-urges-government-industry-to-adopt-single-strategy-for-uk-oil-and-gas-technology-development/ (last accessed 2
February 2014).

[98] Investor/Advisor to
investor (corporate and individual) 1 see note 69 above.

[99] Entrepreneur expert see note 72 above.

Policy implementation 4 see note 71 above.

[101] For one example see Halliburton http://www.halliburton.com/public/cps/contents/Data_Sheets/web/H/H08366.pdf (last accessed 2
February 2014).

[102] Policy implementation
expert 2 see note 71 above.

[103] Industry leader (oil
and gas) 1 see note 65 above.

Business Advisor see note 73 above.

Entrepreneur expert see note 72 above.

Entrepreneur expert see note 72 above.

[107] Ibid.

[108] Business Advisor see
note 73 above.

[109]  Ibid.

[110] Entrepreneur expert
see note 72 above.

[111]  Ibid.

[112] Industry leader (oil
and gas) 1 see note 65 above.

Entrepreneur expert see note 72 above.

[114] See notes 14-18, 52

[115] Entrepreneur expert see
note 72 above.

[116] Policymaking expert
(oil and gas) see note 70 above.

[117] Entrepreneur expert
see note 72 above.

[118] Ibid.

[119] Investor/Advisor to
investor (corporate and individual) 1 see note 69 above.

[120] See note 11 above.

[121] Policymaking expert
(oil and gas) see note 70 above.

[122] Industry Legal (Oil
and Gas) 1 see note 67 above.  

[123] See details, reports
and resources in BBC “Mapping: eco-impact of the BP oil spill” (8 February
http://www.bbc.co.uk/news/special_reports/oil_disaster/ (last accessed 2
February 2014);  see also G Gordon “The Deepwater Horizon disaster: the
regulatory response in the United Kingdom and Europe” in R Cadell and R Thomas
(eds), Shipping, Law and the Marine Environment in the 21st
Century: Emerging Challenges for the Law of the Sea – Legal Implications and
(Oxford: Lawtext Publishing Ltd, 2013)   (Gordon Deepwater).

[124] See Oil and Gas UK
“Knowledge Centre: Oil Spill Prevention and Response Advisory Group (OSPRAG)
and “ENO22 Final Report of
Oil Spill Prevention and Response Advisory Group” http://www.oilandgasuk.co.uk/publications/viewpub.cfm?frmPubID=412
(OSPRAG Final Report) (both last accessed 2 February 2014);
and Gordon Deepwater,
see note 123 above , sections 2.2-2.4.

[125] Industry body experts
see note 75 above.

[126] See OSPRAG Final Report (see note
124 above) Technical Review, 9 et seq; sections 2.1, 2.1.1 and 2.1.7 are of
particular interest regarding collaboration, development of the cap, testing
off Shetland and availability for use.

[127] Policymaking expert
(oil and gas)  see note 70 above.

[128] For example, “Plexus
Holdings PLC – Major oil and gas companies join Plexus’ Joint Industry Project”
21 November 2011
http://www.stbridesmedia.co.uk/News/News/Latest_News/Plexus_Holdings_PLC/News.aspx?id=1614 (last accessed 2
February 2014) .

[129] International
Association of Oil and Gas Producers “Industry programme to strengthen Arctic
oil spill response” (January 2012)
http://www.ogp.org.uk/news/press-releases/industry-programme-to-strengthen-arctic/ (last accessed 2
February 2014).

[130] Entrepreneur expert
see note 72 above.

[131] ITF website http://www.itfenergy.com/index/about (last accessed 2
February 2014).

[132] ITF Technology
Challenges http://www.itfenergy.com/index/itf-technology-challenges (last
accessed 2 February 2014).

[133] See Standard Research
http://www.itfenergy.com/index/cms-filesystem-action/proposal_submission/itf-standard-research-agreement.pdf (last accessed 2
February 2014) (in particular recital 2, definitions of Foreground and
Background IP, clause 2.5(e) regarding importance of seeking IP, clause 7.2
regarding ownership of IP by researchers, clause 7.3 regarding grant of
non-exclusive royalty free licence to participants, clause 7.3A regarding any
further work by participants with IP).

[134] Industry body experts
see note 75 above.

[135] http://www.oilandgasuk.co.uk/ (last accessed 2
February 2014).

[136] See http://www.subseauk.com/ (last accessed 2
February 2014).

[137] See https://vouchers.innovateuk.org/  (last accessed 2
February 2014).

Industry practitioner (oil and gas) 2 see note 66 above.

[139] Industry practitioner
(oil and gas) 1 see note 66 above.

[140] Private practice
legal (different fields of expertise) 1 see note 68 above.

[141] Industry body experts
see note 75 above.

[142] See http://www.etp-scotland.ac.uk/ (last accessed 2
February 2014).

[143] See “Oil and Gas” http://www.etp-scotland.ac.uk/EnergyThemes/OilGas.aspx (last accessed 2
February 2014).

[144] Scottish Enterprise
“£10million innovation fund for oil and gas” 26 September 2012
http://www.scottish-enterprise.presscentre.com/Press-releases/-10-million-innovation-fund-for-Oil-and-Gas-552.aspx (last accessed 2
February 2014).

[145] Policy implementation
4 see note 71 above.

[146] See Oil and Gas
Academy of Scotland
http://www.ogas.co.uk/ (last accessed 2
February 2014) and report in Scotsman “Alex Salmond unveils Scottish oil and
gas academy” (10 May 2013)
http://www.scotsman.com/news/scottish-news/top-stories/alex-salmond-unveils-scottish-oil-and-gas-academy-1-2925878 (last accessed 2
February 2014).

[147] Scottish Enterprise
“Oil and Gas Innovation Centre Workshop” 20 February 2013
https://events.scottish-enterprise.com/events/ClientApps/Silverbear.Web.EDMS/public/default.aspx?tabid=37&id=300177&orgId=1&cmpid=refSE (last accessed 2
February 2014), R Ranscombe, “SFC to put £50million into 5 innovation centres” Scotsman
(24 November 2013)
http://www.scotsman.com/business/media-tech-leisure/sfc-set-to-put-up-to-50m-into-5-innovation-centres-1-3200081 (last accessed 2
February 2014).

[148] See Scottish
Government Oil and Gas ILG webpage http://www.scotland.gov.uk/Topics/Business-Industry/Energy/resources/working-groups/energy-advisory-board/OilandGas.

[149] UK Oil and Gas
Industrial Strategy. Business and Government Action Plan (2013) 

[150] “Oil and Gas Strategy
2012-2020. Maximising Our Future” (“Oil and Gas Strategy 2012-2020”) 
(last accessed 2 February 2014).

[151] Ibid, 2.

[152] Ibid, 9.

[153] Ibid headings
18, 19.

[154] Ibid, 18.

[155] National Subsea
Research Institute  website
http://www.nsri.org.uk/ (last accessed 2
February 2014).

[156]  Oil and Gas Strategy
2012-2020 see note 150 above
Note that 13-18 consider supply chain.

[157] See Scottish
Government website
http://www.scotreferendum.com/ (last accessed 2
February 2014).

[158] Regarding oil and
gas, see Extract from Lords Select Committee, “Economic implications for UK of
Scottish independence. Economic Affairs Committee. Chapter 4 Scotland’s Fiscal
(last accessed 2 February 2014)
; Wood Mackenzie, “Scottish independence and oil and
gas industry” (16 October 2012) 
http://www.offshoreenergytoday.com/wood-mackenzie-scottish-independence-and-oil-gas-industry/ (last accessed 2
February 2014); regarding the status of an independent Scotland in the
international community, see “Scotland’s Future: A Business Plan for Scotland” 
http://www.scotland.gov.uk/Publications/2013/12/6433/3 (last accessed 2
February 2014) Answer 49 cf  S Tierney, “Accession of an Independent Scotland
to the European Union. A view of the legal issues” ESRC Scottish Centre on
Constitutional Change  Briefing Paper 2
December 2013 
http://www.futureukandscotland.ac.uk/sites/default/files/papers/ESRC%20Briefing%20on%20Scotland%20and%20European%20Union.pdf (last accessed 2
February 2014).

[159] Fraser of Allander,
“Aberdeen Chamber of Commerce’s 18th Oil and Gas Survey” University
of Strathclyde (2013) via
www.agcc.co.uk (last accessed 2
February 2014), see 4,5,17.

[160] Scottish Government,
“Maximising the Return from Oil and Gas in an Independent Scotland” (2013)
http://www.scotland.gov.uk/Publications/2013/07/5746 (last accessed 2
February 2014). See 5, 22-3, 30 (in particular paras 5.18 and 5.19). 

[161] See Scottish
Government,  “Oil and Gas Expert Commission” (3 September 2013)
http://news.scotland.gov.uk/News/Oil-and-Gas-Expert-Commission-39b.aspx (last accessed 2
February 2014).

[162] See Scottish
Government ,“Independent Expert Commission on Oil and Gas”
http://www.scotland.gov.uk/Topics/Business-Industry/Energy/resources/OilGasCommission (last accessed 2
February 2014).

[163] HM Government, “UK
Oil and Gas: Business and Government Action”
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/175480/bis-13-748-uk-oil-and-gas-industrial-strategy.pdf (last accessed 2
February 2014).

[164] Ibid, 8 et seq.

[165] Ibid, 10 et seq.

[166] Ibid, 13 et seq.

[167] Ibid, 17 et seq.

[168] Ibid, 8.

[169] http://www.woodreview.co.uk/
(last accessed 2 February 2014).

[170] I Wood, “UKCS
Maximising Recover Interim Report”  (10 November 2013)
(last accessed 2 February 2014)

[171] Ibid 14, para
3.2. In the copyediting phase of this article, the Final Report “UKCS
Maximising Recovery Review”  has been released – see
http://www.woodreview.co.uk/ and in particular p2,
para 4, p7 recommendation 4, section 4.5

[173] Oil and Gas in the 21st
Century: Norway’s Technology Strategy for the 21st Century  (OG21)
http://www.kooperation-international.de/uploads/media/OG21strategy013.pdf  (last accessed 2
February 2014).

[174] Ibid, 52 et

[175] Ibid, 82 et

[176] Ibid, 112 et seq.

[177] Statoil, “The Norwegian State”
(last accessed 2 February 2014).

[178] OG21 see note 173 above, 16-19.

[179] See Gordon Licensing see note 37
above in Gordon see 30 above, 91 and also note 40.

[180] Ibid, 92; Model Clauses in Schedule to Petroleum
Licensing (Production) (Seaward Areas) Regulations 2008, as amended by
, clauses 16(2) and (6), 41(2)(b).

[181] Private practice
legal (different fields of expertise) 2 see note 68 above.

[182] A Brown, “Innovation
and Energy: Where Next?”  (19 January 2014) Open Scotland
http://www.openscotlandmag.com/innovation-and-energy-where-next/ (last accessed
2 February2014). 

[183] Convention on Biological
Diversity and its Protocols
http://www.cbd.int/ (last
accessed 2 February 2014)
WIPO Intergovernmental Committee on Intellectual Property, Traditional
Knowledge, Genetic Resources and Folklore
http://www.wipo.int/meetings/en/topic.jsp?group_id=110 (last
accessed 2 February 2014)
J Gibson, Community Resource: Intellectual Property, International Trade and
Protection of Traditional Knowledge
(Farnham: Ashgate, 2005); E Morgera, M
Buck, E, Tsioumani (eds) The 2010 Nagoya Protocol on Access and
Benefit-sharing in Perspective
(Leiden: Martinus Nijhoff, 2012);
Rimmer see note 11

[184] See
eg Association for Molecular Pathology v Myriad Genetics, U.S. Supreme
Court, No. 12-398;  M Blakeney, “Climate change and gene patents” 2012, 2(1) Queen
Mary Journal of Intellectual Property
2-13, G Laurie, “Patenting stem cells
of human origin” 2004 26(2) European Intellectual Property Review 59-66,
Brustle v Greenpeace eV (C-34/10) [2012] 1 C.M.L.R. 41.

[185] Consider control
of the results of
Route Planner eg
(last accessed 2 February 2014)
; the  GRADE project
re higher education
(last accessed 2 February 2014)
; C Waelde “Databases and lawful users:
the chink in the armour” 2006 (3) Intellectual Property Quarterly 256-282

S Saxby, “Public policy and the digital
geospatial representation of designated land use in the UK: Part 1” and “Public
policy and the digital geospatial representation of designated land use in the
UK: Part 2” Journal of Environmental Law 2007 19(1), 5-28 and 2007 19(2),
227-246; EF Judge and T Scassa, “Intellectual Property and the Licensing of
Canadian Government Geospatial Data: An Examination of Geoconnections’
Recommendations for Best Practices and Template Licences (2010)” The Canadian
Geographer/Le Géographe Canadien, Forthcoming . Available at SSRN:
http://ssrn.com/abstract=1567482 (last accessed 2 February 2014).

[186] See eg the
invaluable collection exploring this KE Maskus and JH Reichman (eds), International
Public Goods and Transfer of Technology Under a Globalized Intellectual
Property Regime
(Cambridge: CUP, 2005), SK
Sell, Private
Power, Public Law: The Globalization of Intellectual Property Rights

(Cambridge: CUP, 2003); RC Dreyfuss, H First and DL Zimmerman (eds), Working
Within the Boundaries of Intellectual Property
(Oxford: OUP 2010); G
Dinwoodie and RC  Dreyfuss, A Neofederalist Vision of TRIPS. The Resilience
of the International Intellectual Property Regime
(Oxford: OUP, 2012).  

Lessons from Technology and Intellectual Property in the Oil and Gas Industry in Scotland: a Scholarly Journey and an Empirical Review

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