Patent Law's Role in the Protection of the Environment: Re-Assessing Patent Law and its Justifications in the 21st Century

International Review of Intellectual Property and Competition Law, No. 4, 2009

Posted: 4 Apr 2009

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Date Written: April 4, 2009

Abstract

The question this article addresses is whether patent law is the appropriate forum to ban polluting inventions, especially those that emit greenhouse gases. To answer this question, the paper scrutinises the functions and justifications for patent law, the morality and ordre public provision (art. 53(a) European Patent Convention) and supplementary protection certificates along with the relevant case law and literature. The paper finds that patent law is only apparently neutral, and therefore this is not a hindrance to it having a role to play in prohibiting polluting technologies and also in encouraging the invention and use of clean technologies. This is also congruent with current patent law rationales and arguments advanced by commentators and others advocated by the author. The paper concludes that European patent laws should be modified to strengthen the prohibition of polluting inventions and grant favoured treatment to green inventions especially those reducing greenhouses gases in the earth's atmosphere.

Keywords: patent law, environment, climate change, philosophy of intellectual property, Europe, UK

Suggested Citation

Derclaye, Estelle, Patent Law's Role in the Protection of the Environment: Re-Assessing Patent Law and its Justifications in the 21st Century (April 4, 2009). International Review of Intellectual Property and Competition Law, No. 4, 2009, Available at SSRN: https://ssrn.com/abstract=1373150

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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