Can’t incentivize non-tech innovation

The final point in this critical analysis of the way patent incentives function in promoting green innovation has to do with the design of the patent system itself. While seemingly extending its protection uniformly to “anything under the sun that is made by man,”203 patent protection only applies to certain types of innovation—technological inventions that meet the statutory patentability criteria. The IP Clause of the U.S. Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”204 While the term “Science” is generally understood as referring to knowledge, the term “useful Arts” used by the Framers is commonly equated with the modern-day term “technology.”205 Hence, even though the U.S. Patent Act206 does not impose an explicit requirement that the invention must be in a technological field, the technological character of an invention does constitute a central element in patent-eligibility determinations.207 The requirements of novelty and non-obviousness further reinforce this focus. Hence, non-technological innovations are essentially outside the scope of patent protection.208 Furthermore, within the realm of the technological arts, patent law—with its rather rigid requirements for protection—is often said to be biased towards high-tech inventions over low-tech inventions.209

Notably, green technologies range from high-tech inventions, such as genetically modified seeds for drought resistance, to low-tech inventions, such as mechanical farming techniques.210 The more low-tech an invention is, the higher the chances are that it would not meet the requisite patentability requirements. To illustrate, an attempt to patent a method to improve efficiency of water use by proper irrigation scheduling, or methods of using natural alternatives in lieu of various industrial products, may fail on patenteligibility, novelty, or non-obviousness grounds.

Furthermore, while this Article focuses on technological innovation, it is important to note, in brevity, that there are many types of nontechnological innovations that may be highly valuable as well in the attempt to mitigate and adapt to climate change. Consider, for instance, creative methods to educate consumers regarding the environmental impact of their market choices or to enable them to reduce consumption.211 These types of “no-tech” innovations are clearly outside the scope of patent protection. Thus, in this context as well, society cannot rely on patents to provide effective incentives to innovate.

In theory, as this limitation of patents has to do with the particulars of the legal regime, one could consider addressing it by amending the law. The proposal could be to make patentability requirements more lenient in various manners so that patent protection would be available to certain lowtech (and even no-tech) inventions of the sorts described above. Yet, amending patent law in such a manner may not be feasible. Among other things, patent law applies in a uniform manner to various technological fields,212 and it may not be possible to make such changes in the particular domain of climate change innovation without simultaneously impacting patentability standards in other industries.213 Even if this was a feasible step, the benefits of patent protection in these contexts are doubtful. Many inventions of the types described above are likely to face low market demand—if they could be commercialized at all—and be highly nonexcludable,214 and hence, the availability of patent protection would not provide a significant incentive to develop them.215 At the same time, exclusive rights may not be a prudent incentive mechanism in this context, in light of the need for a wide diffusion of such practices in order to make a significant impact on the state of the environment.