Should Patent Law Help Cool the Planet? An Inquiry from the Point of View of Environmental Law - Parts I & II

European Intellectual Property Review, Vol. 31, Nos. 4-5, 2009

Posted: 15 May 2009

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Date Written: March 1, 2009

Abstract

It has now almost become trite to say that global warming is one of the most pressing problems we are facing. Very few would also now deny that the cause of this greenhouse effect and the correlated climate change is man.1 What has not been much noted so far is that this extraordinary release of greenhouse gases (GHG) in the earth's atmosphere may be due in major part to our patent laws. Indeed, the main goal of patent laws is to incentivise industrial and technological development, which in turn creates pollution including the release of GHG. The question is therefore whether patent law should play a role in the protection of the environment and more specifically in cooling the planet. The first sub-question to ask is whether patent justifications accommodate this goal. This is the subject of a forthcoming article.2 It reveals that despite the outwardly neutrality of patent laws, the latter in fact already cater to some extent for the protection of the environment through art.53.a of the European Patent Convention (EPC)3 and corresponding national provisions. The research also shows that current justifications do not prevent taking environmental concerns, and more particularly climate change, into account and some seem even amenable to it. In this light, it submits that patent justifications and laws should be re-thought to include environmental goals.

The next question is, notwithstanding this conclusion, whether patent law should be fulfilling this role in addition to environmental law. And if so, what role--modest or more pronounced--it should play in the prevention of pollution and the reduction of GHG in particular and how it should be implemented in practice. This article seeks to provide an answer to these questions. It will show that whatever the position of positive patent law and its philosophical justifications are, in the European Union, patent laws must take account of environmental laws, because the European Community Treaty (ECT4 ) forces them to.

This article is split into two parts. Part 1 reviews the general environmental principles, as they apply to the issue of climate change, and the specific rules relating to global warming in order to discover what the impact of environmental laws on patent laws is. Part 2, which shall be published in the next issue of EIPR, analyses how patent law can help further reduce GHG emissions in the atmosphere over and above the current environmental laws. It reviews the different possible systems that can be put in place, determines which one is best, and determines a method to ascertain the eco-friendliness of an invention and who should bear this burden of proof. The article concludes that patent laws urgently need to address environmental concerns and more particularly the problem of climate change and advocates the adoption of a mixed system. The focus is on European and national patent and environmental laws. The specific problem addressed is global warming. Many of the conclusions could also apply to environmental protection in general although more research would need to be carried out to make such general extrapolation.

Keywords: patent law, environment, climate change, environmental law, Europe, UK

Suggested Citation

Derclaye, Estelle, Should Patent Law Help Cool the Planet? An Inquiry from the Point of View of Environmental Law - Parts I & II (March 1, 2009). European Intellectual Property Review, Vol. 31, Nos. 4-5, 2009, Available at SSRN: https://ssrn.com/abstract=1373148

Estelle Derclaye (Contact Author)

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

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