Timing – too slow and incremental. Congressional action key.
Cayton 20 [Samuel, Adjunct Prof at Seattle Univ School of Law, legal intern at the Media Law Group, “The ‘Green Patent Paradox’ and Fair Use: The Intellectual Property Solution to Fight Climate Change,” Seattle Journal of Technology, Environmental & Innovation Law 11.1, p.244, JCR]
Lastly, concerns around timing need to be addressed. If Congress does not codify this proposal and leaves any developments to the courts, expansions of green technology will not accelerate at a necessary rate. Instead, a judicially created fair use doctrine for patent law may merely provide incremental change to green patents at best as it would only develop case-by-case through individual lawsuits.225 Regardless of whether federal institutions will initiate this proposal, industries at large should still strive to advance green technology at a rapid pace. Although inventors and entrepreneurs risk becoming defendants to patent infringement suits, eBay remains a shield for their technologies’ continued development.226 Eventually, the climate crisis’s growing threat will pressure the U.S. to tolerate transfers of patented green technology so that such technologies receive their highest and best use at the lowest cost to the patent holders and other users.