The Environmental and Public Health Impacts of U.S. Patent Law: Making the Case for Incorporating a Precautionary Principle

Article excerpt

I.   INTRODUCTION
II.  THE IMPACTS OF PATENTED TECHNOLOGY: THREE CASE STUDIES
     A. Chlorofluorocarbons (CFCs)
     B. Dichlorodiphenyltrichloroethane (DDT)
     C. Asbestos and Public Health
III. PATENTABLE SUBJECT MATTER IN THE UNITED STATES
     A. Historical Development of US Patent Law
     B. Modern US. Patent Law
         1. Formal Requirements
         2. The Substantive Scope of Patentable Subject Matter
IV.  THE PRECAUTIONARY PRINCIPLE
     A. History of the Principle
     B. Strengths of Precaution
          1. Distinguishing Strong and Weak Principles
          2. Hybrid Principles
     C. Scope of the Principle
V.   PRECAUTIONARY MEASURES IN FOREIGN PATENT LAWS
     A. Types of Patentability Exclusions
     B. The Public Health Exclusion
     C. The Environmental Harm Exclusion
VI.  INCORPORATING THE PRECAUTIONARY PRINCIPLE INTO U.S. PATENT LAW
     A. Proposed Method of Incorporating the Principle
     B. Practical Considerations: How to Draw the Precautionary Line
         1. Internal USPTO Evaluation
         2. Purely External Evaluation
         3. Internal Evaluation with External Consulting.
     C. Policy Considerations: Where to Draw the Precautionary Line
         1. Banned Substances and the "Ultraweak" precautionary
            Principle
         2. Other Applications of the "Ultraweak" Principle
         3. Scientific Uncertainty and True Precaution
VII. CONCLUSION

I. INTRODUCTION

Scientific consensus regarding the environmental and public health impacts of a technological innovation often arrives years, or even decades, after the innovation itself. One well-documented example of this time delay between an innovation and a reliable scientific assessment of its potential impacts is the case of chlorofluorocarbons (CFCs). The United States Patent and Trademark Office (USPTO) granted the first patents on CFCs for use as refrigerants in the early 1930s, (1) and even as late as the 1950s, CFCs were still considered "miracle chemicals." (2) However, scientists later hypothesized that chlorine radicals from CFCs destroy atmospheric ozone, (3) which absorbs potentially damaging ultraviolet-B radiation (UV-B). Destruction of atmospheric ozone by CFCs leads to a wide range of harmful impacts, (4) including harm to the skin, eyes, and immune systems of humans and animals, (5) decreased photosynthesis and greater susceptibility to disease by terrestrial plants, (6) and a general reduction in productivity of phytoplankton. (7)

Due to these and other effects, in 1990 the United States signed an international treaty banning CFCs from domestic production beginning in 2000, (8) with very limited exceptions for "essential uses." (9) Other notable examples of patented innovations later proven harmful to the environment and public health include dichlorodiphenyltrichloroethane (DDT), first patented in the United States as a highly promising insecticide in 194319 and eventually banned due to unacceptable risks of negative ecological and public health impacts in 1973, (11) and asbestos, first patented in 1828 as an insulating material in steam engines (12) and ultimately banned from most products in 1989. (13)

In general, the state of scientific knowledge regarding the potential environmental and public health impacts of an invention progresses from scientific ignorance, when any harmful impacts of the invention are completely unknown and unsuspected, to scientific uncertainty, when harmful impacts are suggested by some scientific evidence, but the scientific community has not yet reached consensus, and finally to scientific certainty, when harmful impacts--if any--are well accepted by the scientific community. For example, when CFCs were invented, the scientific community was ignorant of their harmful impacts and initially knew only of the beneficial uses of CFCs as refrigerants. (14) The era of scientific uncertainty began in 1974, when scientists first theorized that CFC emissions could significantly deplete atmospheric ozone. …