The following post comes from Associate Professor of Law Tabrez Ebrahim of California Western School of Law in San Diego, California.
By Tabrez Ebrahim
What role should patent law have in promoting environmentally friendly, clean, and sustainable technology innovation? Does patent law provide adequate incentives for inventions and innovation that address environmental problems?
Clean technology refers to measures, products, or services that reduce or eliminate pollution or waste. Sustainable technology refers to the design of products that offer environmentally friendly alternatives that prevent waste, are less toxic, use renewable feedstock, use safer solvents and reaction conditions, or increase energy efficiency. In my new paper, Clean and Sustainable Technology Innovation, I provide a narrative review of various environmental innovation approaches and incentives for technology development and diffusion. Scholars and commentators have analyzed the role of patents in facilitating technological development to mitigate climate change, including an eco-patent commons, a fast track program, a patent rewards system, and a collaborative and cooperative platform.
I analyze the literature to show that patent law offers certain underutilized opportunities to promote technological innovation that has environmental benefits. I conducted a semi-systematic review on academic papers concerning clean and sustainable technologies and various patent law-related innovation proposals. In so doing, I provide a synthesis of law and policy papers to identify and understand scholarly views of patents in inducing environmental innovation.
The importance of developing clean and sustainable technologies has included government-driven initiatives to accelerate patenting procedures and expediting of patent application examination of such technologies. The United States Patent & Trademark Office (USPTO) had a fast-track program, the Green Technology Pilot Program, which had reduced the time to attaining a patent for environmental innovations, but this program ended in 2012. Other proposals have included international initiatives that foster a collaborative and cooperative platform to make clean and sustainable technologies more freely available through the sharing of patents that were involved or created during the cooperation and through mechanism to promote mutually agreeable terms. The deployment of clean and sustainable technologies could depend on whether these technologies are patented, licensed, or shared in a pool, and on what technological substitutes are available.
The theoretical underpinning of clean and sustainable inventions is their ability to produce positive externalities, a term which refers to the producing of environmental benefits beyond the implementing firm. Environmental-centric inventions and innovations could generate salutary effects for members of society far beyond the inventor or firm that implements the invention. As a result, more investors may be interested in startups that develop environmental solutions, and business activity in this sector should multiply. While the time and cost of clean and sustainable deployment and climate change mitigation can be an important consideration, the opportunities to provide environmental benefits should be of greater importance. There are a number of innovation policy issues for incentivizing inventors, innovators, and businesses to continue to develop environmental solutions.
I discuss more about these issues in my paper, which was selected by a faculty editorial board and was part of a faculty-edited blind peer review process. This paper is published in Current Opinion in Environmental Sustainability and can be downloaded here.