Fast tracking patents fails—low participation

Given the urgency of the climate crisis, many governments, businesses, and legal scholars have explored adapting national patent systems to facilitate green technology innovation.18 Patents have long been considered an effective mechanism for incentivizing innovation,19 and many nations—including the United States—have created targeted programs, statutes, and regulations to shorten the time for green technology patents to issue.20 By shortening the application process, inventors may enjoy the exclusivity benefits of patent protection for longer than through the normal process,21 and society would benefit from the rapid disclosure of environmentally-friendly technologies.22 Perhaps counterintuitively, inventors have not participated in these programs at a high level.23

One of the issues that may be driving this low participation is that patents are relatively ineffective at incentivizing green technologies.24 Patent systems fail to fully capture the value of technologies that confer substantial benefits to third parties, which undercuts demand for such technologies.25 Because market demand is the primary driver of a patent’s value, green technologies are at an inherent disadvantage due to the presence of these market dynamics—called “positive externalities.”26 In a study comparing the number of environment-related patent applications under the Patent Cooperation Treaty (PCT)27 with various indicators of “eco-innovation,”28 the share of environment-related patents to total patent applications, the number of environment-related patents per capita, and the number of environment-related patents per $100 billion in Gross Domestic Product (GDP) declined from 2013 to 2017 (the final year evaluated by the study).29 This is concordant with research from the International Energy Agency (IEA) that found that patents of technologies related to power generation, transport, buildings, manufacturing, and carbon capture and storage steadily declined from 2012 to 2018, and that there was no indication these trends would change in the near future.30 In that same period, there was no decrease in patents generally, or in other fields such as health technologies, general engineering, or information and communication technologies.31