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Does Patent Law Provide Adequate Incentives for Environmental Innovation?

Professor Tabrez Ebrahim

What should the role of patent law be in promoting “green” inventions, and does it provide adequate incentives for environmental innovation?

In a recent scholarly article, selected by a faculty editorial board, entitled Clean and Sustainable Technology Innovation California Western Professor Tabrez Ebrahim provides a narrative review that describes clean and sustainable technological inventions and various environmental innovation approaches involving patents and incentivizing technological development and diffusion.

“Clean technology refers to measures taken to reduce or eliminate pollution or waste,” says Professor Ebrahim. “Sustainable technology refers to the design of products that offer environmentally friendly alternatives, prevent waste, are less toxic, use renewable feedstock, use safer solvents and reaction conditions, or increase energy efficiency.”

Professor Ebrahim’s article provides a timely narrative review and synthesis of papers concerning clean and sustainable technologies and various patent-related innovation proposals. It adopts a semi-systematic review of law and policy papers to identify and understand potentially relevant views of patents on inducing environmental innovation.

The patent system in the U.S. is theoretically technology-neutral. However, governments have recognized the importance of developing clean and sustainable technologies and have looked at accelerating patenting procedures to expedite examining patent applications directed to such technologies.

The United States Patent & Trademark Office (USPTO) used to have a fast track program, called the Green Technology Pilot Program, for which there would be a reduced time to attaining a patent for such clean and sustainable technologies.

In 2012 the USPTO ended the program. Since then, the U.S. patent system has not had any changes with respect to patents concerning this technology type.

Professor Ebrahim’s paper advocates a patent reward system for clean and sustainable technologies. “Such ‘green’ inventions provide benefits to the public as a cleaner environment is a public good and everyone benefits, not just the user,” he says.

“In economic terms, such inventions produce positive externalities,” continues Professor Ebrahim. “Potential inventors are aware of it because such inventions could provide tremendous environmental benefits to the public. As a result, corporations that employ such inventors may be motivated by their development—their expectation could be that government would be willing purchasers, and if such a government-driven purchaser is interested, it could be a longer-term and consistent revenue stream.”

Another proposal Professor Ebrahim discusses is operating internationally in collaborative and cooperative platforms to make clean and sustainable technologies more freely available. This approach would provide mutually beneficial international cooperation. There is a global need and correspondingly an opportunity to develop and disseminate clean and sustainable technologies in response to climate change concerns. Organizations and countries would work together to develop and deploy clean and sustainable technologies on mutually agreeable terms through a neutral and independent entity that ensures that organizations and countries are clear of ownership and sharing of patents involved or created during the cooperation.

The cost of clean and sustainable adaptation, deployment, and climate change mitigation will depend on whether these technologies are patented, licensed, or shared in a pool. Professor Ebrahim proposes that patent law offers certain, though perhaps underutilized, opportunities to promote technological innovation that has environmental benefits.

Read Professor Ebrahim’s complete article, Clean and Sustainable Technology Innovation, which was selected by a faculty editorial board and part of a faculy-edited blind peer view process, here.