Should Patent Policies Be Used to Stifle Fossil Fuel Innovation?

Greentech Media covered a new report that looked at the kinds of market forces we would need to effectively move from fossil fuels to renewables.

Entitled “Will We Ever Stop Using Fossil Fuels?”, the report concludes that technology-driven cost reductions will lead us to continue to use fossil fuels for many years.

One important point raised by the study is that the analytical framework used to compare the cost of renewables versus the cost of fossil fuels is flawed.

Specifically, you can’t only look at the cost of renewable energy technologies over time or even at the cost of renewable energy compared to the current cost of fossil fuel extraction because, like renewables, the costs of conventional carbon-based technologies are likely to go down over time as well.

The GTM piece quoted a University of Chicago economics professor named Michael Greenstone, a co-author of the study, about innovation in fossil fuel extraction keeping pace with green tech innovation:

There’s been tremendous innovation with low-carbon energy, but what’s often missed is that there’s been tremendous innovation in bringing down the cost in fossil fuel recovery.

While promoting innovation in green technologies, should we simultaneously be stifling innovation in fossil fuel technologies?

Some academics think so.  In a guest post on this blog, Professor Matthew Rimmer of the Queensland University of Technology in Brisbane, Australia posited that it might be time for “patent law to become fossil fuel free.”

Professor Estelle Derclaye of the University of Nottingham has suggested that “patent offices could either not grant patents for any invention which emits CO2 or make a cost-benefit analysis in terms of the value of the invention for society and the levels of CO2 emitted.”

While I’m generally opposed to implementing different patentability regimes across technology areas and excluding specific technologies from patenting, I believe that some aspects of the patent process, such as procedural rules and fees, could be adjusted in an attempt to achieve certain policy goals.

I’ve previously suggested (see here and here) a harmonized fast track program for green technology patent applications.  This “Global Green Patent Highway” would not alter substantive patentability standards, but would provide a smooth and internationally coordinated expedited examination procedure for patent applications directed to inventions that confer a “material environmental benefit” so green patents are granted faster.

Perhaps we should take the opposite tack and consider procedural changes or fee structures that would make it more burdensome to patent technologies directly relating to activities that increase carbon emissions.

In light of this report, maybe now is the time to slow fossil fuel patenting.

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.