The US already has preferential treatment of green tech, and it’s effective.

In December 2009, the USPTO launched a pilot program to accept 3,000 petitions for accelerated examination of green technologies, i.e., applications related to “environmental quality, energy conservation, development of renewable energy resources or greenhouse gas emission reduction.”198 To be eligible, claims must be designed for an invention that significantly improves the quality of the environment or that materially contributes to: “(1) the discovery or development of renewable energy sources; (2) the more efficient utilization and conservation of energy resources; or (3) greenhouse gas emission reduction”, with an explanation satisfying the special status.199 Mere speculation on possible use of the invention to achieve the above effects does not suffice.

Initially, there was a requirement that applications must belong in one of the U.S. patent classifications: alternative energy production, energy conservation, environmentally-friendly farming, or environmental purification, protection or remediation.200 However, in May 2010, the USPTO announced removal of this restriction because “this requirement was causing the denial of petitions for applications that are drawn to green technologies” and the workload of examiners has been adjusted by other means.201 According to a USPTO report of July 26, 2010, some 650 petitions have been granted out of 1,400 requests submitted.202

Preferential Treatment for Patenting Green Inventions

Benefits of Early Patenting

First, early patenting is a useful enforcement tool when there is an urgent and compelling need to assert rights against potential infringers or competitors. Even before patent grant, published patent applications are entitled to some degree of reasonable compensation against infringement.203 On the other hand, a fast grant (especially if accompanied by early publication) is not always good for patentees. For nascent technologies, a slower pace in the granting procedure can be advantageous because it gives time to gauge commercial viability and to develop marketing plans while the patent application is still pending.

Second, a strong IP position helps start-ups to secure investment and one way to strengthen the firm’s IP position is to secure patents in advance so that investors are convinced about the company’s core assets for growth. This is about more than the timing of patenting; a strong IP position also relates to, for example, the strength of individual patents or the value of the overall patent portfolio.

Third, as a policy matter, early patenting helps speed up the development and deployment of technology, generate more jobs and stimulate competitiveness in business. The USPTO describes the higher-level purpose of prioritizing a specific technical field like green technology as re-organizing the patenting process in order to improve patent quality and timeliness. Importantly, reduced pendency in a chosen area helps bring new technologies into the market early.

Fourth, from an economic viewpoint, the first mover’s advantage in the rapidly growing green technology market appears to stimulate early patenting in this field. For example, an economic analysis suggests that Europe’s leadership in the wind turbine industry is partially driven by this type of advantage.204 When the economy turns low-carbon through mandatory implementation of renewable energy generation, European turbine makers with advanced technologies are well-positioned to benefit from such regulatory change. On the other hand, increasing competition (including with actors in developing countries) and political uncertainty in the climate change negotiations may diminish such advantages.

Incentivizing early patenting can be beneficial to society. As Duffy argues, the race for a patent implies not only rivalry to claim exclusive rights, but also competition to end monopolies sooner.205 In addition, embryonic technology can be commercially exploited at a much later stage of the patent term.206 Therefore, the social benefit of early patenting is that it has the effect of reducing the actual monopoly period, i.e., the time between commercial exploitation and patent expiration.