The patent system is incapable to address climate concerns.

While the minutia of the patent system has changed through the years, the current system relies on the same property- and incentive-based rationale that served as the foundation for its inception.56 Under the current system, inventors who create a new and useful “machine, manufacture, or composition of matter” may be granted a patent, which confers a right to exclude others from practicing that invention for a certain period.57 The limited monopoly conferred by this exclusive right suppresses competition from “free riders,” who seek to exploit the work of other inventors despite making no investment themselves, and thus encourages the R&D necessary for the production of socially valuable inventions.58 There is no separate patent system for “green” technologies, and these innovations are generally treated equally to other inventions during patent prosecution and thereafter.

E. Why the Current System May Not Provide Adequate Incentives

The current patent system implicitly relies on the assumption that market demand adequately incentivizes innovation.59 However, the exclusive right granted by patents is only worth something if consumers actually want to purchase the good or service. While a market-based approach may generally be adequate to incentivize innovation, this strategy may crumble when faced with the peculiarities of “green” technologies.60 Thus, the current patent system may be inadequate to incentivize the development of marine plastic remediation technologies.

These technologies may be best described as “nonmarket” goods.61 Because the patent system relies on consumer preferences to “signal” areas of innovation worth pursuing, the incentive to invest may disappear when the goods are difficult to value in standard markets.62 This may discourage researchers from performing the foundational research necessary to develop these innovations.63 Green technologies, such as innovations directed to ocean plastics, may not be properly valued by markets for several reasons.

First, not all consumers can be trusted to make environmentally conscious choices.64 Even though the public is generally more aware of environmental issues than they were in the past, some skepticism persists.65 Even individuals who are conscious of these issues may still fail to fully appreciate the impact of the individual’s own, personal actions.66 For example, a coffee enthusiast may be aware that discarded plastic straws pose risks to ocean health, but he may view his own use as insignificant, considering the millions of tons of plastic waste produced by industry giants. Consumers also routinely exercise influence on each other, which limits demand for technologies that have not yet reached widespread use.67 For example, many consumers adopt a “wait to see” approach before switching to green products and processes, hindering diffusion in early stages.68

Although consumers look to cues from others to when choosing whether to adopt green products, they simultaneously doubt the collective commitment of society to achieving significant environmental progress, leading to a “collective action” problem.69 In other words, because consumers do not trust that other individuals will make equally environmentally responsible choices, they might avoid making these choices themselves.70 Finally, green technologies present an interesting paradox: their use creates positive externalities that significantly undercut their own demand.71 Significant progress in reducing ocean plastic might still be years away, yet as new technologies curb or prevent waste, their success ironically diminishes the demand for the very technologies solving the problem.

Technological solutions designed for businesses, rather than individual consumers, may also be improperly valued by market demand.72 The social value of green technology is largely a function of the public benefitit provides.73 In choosing to use an environmentally friendly product or process, a business is essentially choosing to offer a benefit to all while bearing the cost by itself.74 A for-profit firm will rarely consider the indirect benefits of third parties when making business decisions and will instead focus on an internal cost-benefit analysis.75 Thus, a business will rarely “green its operations” on its own accord.76 Firms may justify a switch to satisfy consumer preferences, but this consideration is often outweighed by profit-maximizing goals.77

Because the market itself consistently undervalues green products and processes, the patent system’s reliance on market demand to drive innovation may fail to incentivize the development of marine plastic remediation technologies. A systematic review conducted in 2020 identified only 52 discrete technologies directed to plastic pollution prevention or collection.78 While these technologies may offer a reasonable starting point, today’s recycling and waste management infrastructure is “grossly insufficient” to address the plastic waste problem.79 Thus, there is an urgent need for more innovations to address challenges associated with scale, deployment location, prohibitive costs, and microplastics in particular.80