IPR makes fast progress on green tech impossible – threat of infringement blocks research

Some proposals have called for the U.S. to gear its patent system toward promoting environmental protection. One proposal creates a specific department for green patents that aims to fix certain shortcomings within the USPTO.109 As demonstrated in KRS International Co. v. Teleflex, Inc., the non-obvious requirement is strict and may inhibit innovation.110 Though the USPTO already covers patents for green technology, a specialized department could relax the non-obvious requirement for green patents, shorten the period of exclusivity, include a review from the EPA, and reconsider the requirement for novelty.111 The categories of patents within this sector may include increasing energy efficiency, replacing fossil fuels, capturing CO2, and other solutions.112 However, because such solutions would only impose slight modifications to current patent law, they would only promote incremental changes at best.113 Obtaining a patent is a lengthy process and the need to issue patents quickly is critical. In December 2009, the USPTO created a fast-tracking system for green technology patents called the “Green Technology Pilot Program.”114 With this program, an applicant was able to have their patent receive special examination if it pertained to an area of environmental protection such as GHG reduction.115 Rather than loosening doctrinal requirements for the patent, this proposed program addresses the urgency to get green patents issued. However, at the end of 2011, the USPTO announced that the program would be eliminated over the next few months.116 Today, the USPTO’s website directs applicants to other fast-tracking programs, although not specifically geared toward green technology.117 While loosening patent requirements, shortening the length of exclusivity, and speeding up the application process are important steps, these adjustments do not alleviate the Green Patent Paradox; the threat of patent infringement from an NPP would remain and continue to hinder the progress needed to create a high volume of green technology for an environmentally sustainable economy.