Can’t create consumer demand

The implications for this Article’s analysis are clear. Ultimately, if individual consumers cannot be trusted to make choices that align with environmental concerns, then the patent system, being predicated on market demand, certainly cannot be trusted to produce signals which are sensitive enough to environmental outcomes. For lack of sufficient demand, the system is likely to under-incentivize investment in R&D projects that may lead to the development of climate change technologies or other green products. At the same time, by reflecting consumer preferences that do not fully account for environmental considerations, the patent system may also provide an inflated incentive to develop consumer goods with a relatively high environmental footprint.184 This may be unfortunate both in itself and in terms of opportunity costs: R&D is resource-intensive, and as resources are scarce—allocation matters. Inasmuch as the patent system incentivizes development of new carbon-emitting products, it may further divert resources away from other more socially valuable activities, including the development of greener products.

As briefly noted above, this may ultimately have an impact not only on downstream development of green consumer products, but also on incentives to engage in R&D of more upstream technologies, the demand for which derives, at least to some extent, from the demand for end-products. After all, absent significant demand for electric cars, why would companies invest significant resources in R&D that aims to improve performance of rechargeable batteries or other components embedded in such cars?185