If we spillover, that’s good---Hatch-Waxman’s length extension is uniquely helpful for climate technologies!

Translating this generous grant to the environmental sphere would provide the same incentive to environmental engineers to tackle the growing number of environmental issues facing humanity. The legislative intent behind the Patent Term Restoration Act was sufficiently tailored to meet the government's ends in that it aimed to improve healthcare and increase innovation.1 46 This same legislative intent must be applied to the environmental sector of innovation.

Aside from directly benefiting patent holders, new inventions can improve quality of life, stimulate economies, promote high rates of entrepreneurship, create career opportunities for skilled labor, and protect and preserve natural resources.1 47 With many minds working on many problems at once, each diverse issue attracts critical problem solving through inventions. One could see the number of lives saved by introducing new drugs via the Patent Term Restoration Act as minuscule compared to the future generations saved by improvements in the air, water, and land quality worldwide.1 48

Following an inventor's logic, "the stronger the patent right and the easier it is to obtain a patent, the more incentive there is to innovate and disclose inventions."1 49 To build off this argument, the idea of a stronger patent begins with restoring its relate-back date and starting the patent life clock at twenty years only when the product is available for consumers.

A. IN REAL TIME

Imagine you are a highly skilled engineer. You have spent considerable time studying and racking your brain on an invention that could change the world for the better. You land on a more efficient way to capture methane gas emitted from landfills. There is a process in place already, but you think you can improve it by removing moisture, impurities, and carbon dioxide simultaneously instead of in three separate processes.1 50 You work on the design for several years, build a prototype over the course of months, test it for months, and spend time making productive changes. You believe that this invention is one of a kind and that you have a right to protect it as intellectual property.

What follows below are your next steps under the current patent system. Step one is to determine the type of intellectual property needed.151 For the sake of this hypothetical, you determine that a patent is required. Step two requires you to verify that your invention has not been publicly disclosed by anyone else.1 52 If you are not sure how to conduct this search, you will need to pay an agent, or a patent attorney registered with the USPTO.1 53 This alone is a significant expense and can cost between $300-$700 per hour in major metropolitan areas.1 54

The third step is to determine which type of patent you need.1 55 Based on your methane-capturing invention, your patent attorney determines you need a utility patent because your invention is the combination of a machine and a new and useful process.156 Step four is getting ready to apply; this process requires you to consider time and cost, as well as whether to continue to retain an attorney or agent.1 57 Given that you are a novice in patent law (you prefer physics exercises over torts hypos), you continue to use your patent attorney's expertise. Keep in mind your attorney is logging her hours spent working for you. As for the cost of applying, "[a] patent application is subject to the payment of a basic fee and additional fees that include a search fee, an examination fee, and issue fee. Depending on your application, there may also be excess claims fees."1 58

Step five is actually submitting your initial application.1 59 To better illustrate the likely timeline from initial research and development, to USPTO application, to patent granted, it is helpful to look to a similar patent already registered with the USPTO (although yours is much better). This other patent is for a "Landfill methane enhancement process," and the inventors, Russell and Xiomara Chianelli, incorporated inventions from as early as 1994 and 2001 in their research and development.1 60 The Chianellis filed their patent application on March 3, 2010 with the USPTO and received their patent on February 17, 2015, almost five years later.161 The numerous fees that come along with filing are not insignificant. The filing fee for a utility patent alone is $320, $700 for a utility search fee, $800 for a utility examination fee, and $1,200 for a utility patent postallowance fee.162

Step six requires you to work with your patent examiner and work through any issues in your application.1 63 Steps seven and eight are receiving your patent and maintaining its status.1 64 As you can see, this is a lengthy process that stretches out over the course of years, while also costing a pretty penny.1 65

You, like the Chianellis,1 66 have a worthwhile invention that can preserve atmospheric integrity and keep excess methane out of living lungs. Because your invention is environmentally beneficial, you should be granted any time lost in your application and testing process back to your patent life automatically, without wading through the bureaucratic paperwork at the USPTO. If the Patent Tenn Restoration Act had been applied to the Chianellis's "Landfill methane enhancement process," the lifetime of the Chianelli patent would be extended by the amount of time the Chianellis spent in patent prosecution. Thus, the Chianellis would be awarded five more years of patent protection for their enhanced process. This is just one factual pathway of how the amended Act could help an inventor.

B. JUSTIFICATION FOR PATENT EXPIRATION IN GENERAL

With all great ideas, comes counterarguments attempting to pick apart their sound reasoning. Undeniably, there are legitimate policy reasons for limiting patent lives. Once a patent expires, the invention or idea becomes available to the public to "stimulate a wide range of invention and innovation." 167 As is apparent from a broad look at technological evolution, old technology lends insight to the development of newer technology.1 68 For example, cell phones have changed dramatically through the years.1 69 The many phases and updates reflected through these inventions would not have accelerated the rate they did without limits on patent-lives and early releases of patent rights.1 70 A patent without an expiration date would stand in the way of others improving and expanding on the idea.171 As explained earlier, the entire point of the patent system is to reward extensive research and time put into inventions for the common good.1 72 While this is true, too lengthy of a patent life has the potential to stifle creativity.1 73

Still, there is the argument of true necessity. Pharmaceuticals and other medical-related devices must pass rigorous testing before gaining FDA approval, yet the testing of other industries, such as the agricultural biotechnological industry, are "subject to a much more lenient and, frankly, easy approval process."1 74 The response is simple. Any practice of formal regulatory testing, no matter how lenient or nonchalant, reduces the invention's profitability for the patent holder by eating up some quantity of time.

Stifling the development of inventions beneficial to the public at large prevents the possibility of improvements in quality of life and standards of living.1 75 There are, however, specifically curated safeguards put in place to protect against overexploitation of patents. Patent holders must pay the United States Patent and Trademark Office ("USPTO") maintenance fees and renew annually to keep their patents in place.1 76 Fees to the USPTO increase as the patent life approaches the twenty-year mark.177 The whole aim is to ensure that the patent holder's monopoly over the invention is economically justifiable to the inventor. 178 An invention no longer making the inventor substantial profits would incentivize the patent holder to release the patent rights before the maximum time allowance.1 79 After release, the invention is free to be used and altered by the public, and new ideas may emerge.1 80

While these counterarguments are rooted in logic, the grips of their reasoning are made weaker in light of the global climate, both literal and political. The potential of environmental devices to be successful and make a positive difference should be worth its weight in gold. To encourage the technology so desperately needed, eliminating all deterrents, like loss of profitability through patent life wasted, can only increase the preferred output.