Academic journal article Brigham Young University Law Review

Protecting the Environment by Addressing Market Failure in Intellectual Property Law: Why Compulsory Licensing of Green Technologies Might Make Sense in the United States: A Balancing Approach

Academic journal article Brigham Young University Law Review

Protecting the Environment by Addressing Market Failure in Intellectual Property Law: Why Compulsory Licensing of Green Technologies Might Make Sense in the United States: A Balancing Approach

Article excerpt

Environmental degradation is a growing concern for governments throughout the world, but especially in the United States.1 According to most experts, global climate change presents one of the most pressing environmental problems in the world today.2 Other significant environmental problems include degraded air3 and water quality,4 collapsing fisheries,5 overloaded landfills,6 and accumulating waste in the world's oceans.7 Imagine that a solution to any one of these problems was within the grasp of humanity, but was quickly hidden away by those interested in perpetuating the status quo. This phenomenon has been well documented8 and is commonly referred to as patent suppression.9 Patent suppression is the process by which an individual or a company obtains a patent for an emerging technology in order to prevent that technology from coming to market.10 Under the current United States patent law regime, it is possible for a company, fearing competition from an emerging technology, to buy the patent for the new technology in order to suppress it.11 In this situation, the new patent holder can refuse to use the new technology while simultaneously refusing to license it to any other market participants, eliminating any possibility that the technology be put to beneficial use during the life of the patent. In a world that desperately needs to address its environmental problems, this use of U.S. patent law protection can delay the development of environmentally important technologies. This paper will address one possible solution to this problem: compulsory licensing.

Of course, any compulsory licensing regime must address competing policy goals. On one hand, a compulsory licensing statute can be a tool that the government uses to ensure beneficial technologies are not suppressed and are made available to the market. On the other hand, compulsory licensing laws risk eroding the value of a patent to the point that the incentive to innovate is destroyed. After all, the patent system exists as a mechanism for rewarding those who create beneficial technologies.12 There are already a few narrowly applied statutes in the United States which provide for compulsory licensing of some technologies.13 This paper will argue that a mandatory licensing statute which encompasses more environmentally beneficial technologies can overcome the problem of patent suppression while still maintaining the incentive to innovate. Part I provides a background discussion of some important environmental policy considerations, including the importance of technological advances as a means of solving environmental problems and the policy considerations surrounding patent law and compulsory licensing. Part II discusses why a broader compulsory licensing regime could be beneficial. Part III addresses some of the primary concerns over such a policy and discusses how we might potentially balance the conflicting policy goals. Part IV concludes.

I. BACKGROUND

Within the academic literature on environmental policy, there is no paucity of work discussing a market-based approach to solving environmental problems. Garret Hardin's Tragedy of the Commons and the long line of related commons analysis describe how many environmental problems arise from market failure.14 That line of literature generally suggests the possibility of either privatization or regulation of public resources as a means of addressing market failure.15 This section addresses another piece of the puzzle: technological innovation. Similar to Hardin's discussion of the commons, technological innovation is another area wherein a market-based approach may be helpfully applied to environmental policy. This section discusses how technological advancement may help to solve environmental problems. Then it discusses some of the conflicting policy considerations in trying to ensure that there are both adequate incentives for inventors to innovate while simultaneously ensuring that new innovations are diffused into the marketplace. …

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