Environmental initiative and the role of the USPTO'S green technology pilot program.

• Author: Wong, Sarah M.
• Position: United States Patent and Trademark Office

1. INTRODUCTION II. THE "GREEN" PROBLEM III. ADDRESSING THE "GREEN" PROBLEM A. Government Intervention B. Domestic Considerations C. International considerations IV. RESEARCH FUNDING AND PATENT PROTECTION A. Research Funding B. The Bayh-Dole Act C. Patent Protection D. Patent Proposals VI. THE PTO'S GREEN TECHNOLOGY PILOT PROGRAM A. Program Overview B. Initial Reception and Modification VII. THE FUTURE OF GREEN TECHNOLOGY AND PATENT PROTECTION A. Program and Patent Theory B. Program Goals and Proposals 1. Increase the Incentive to Innovate 2. Increase Participation in the Program 3. Improve Acceleration Speed C. Patent Reform Outlook D. Global Outlook VIII. CONCLUSION Each of us has a part to play in a new future that will benefit all of us. As we recover from this recession, the transition to clean energy has the potential to grow our economy and create millions of jobs--but only if we accelerate that transition. Only if we seize the moment. And only if we rally together and act as one nation--workers and entrepreneurs; scientists and citizens; the public and private sectors. (1)

   President Barack Obama

1. INTRODUCTION

   The United States (U.S.) has entered a heightened state of environmental awareness. America's history of industrialization and consumerism in the early 1900s resulted in the realization that an increasing rate of industrial growth wrought a devastating effect on the environment. This growing environmental awareness has peaked in the contemporary era. In the 1990s and the early 2000s, environmental issues were pushed to the forefront of American consciousness. (2) Political leaders have become advocates for the environment, (3) and their work prompted more Americans to recognize the environment as a top priority on the country's political agenda. (4) The American sentiment is evident in President Obama's goals for the new decade: creating a clean energy economy and reducing pollution levels. (5)

   This comment will address the environmental problems that confront the U.S. and the steps that the government has taken to solve them. Specifically, research funding and patent protection have provided the green industry an incentive to increase research and development of green technology. For example, one of the recent programs to help improve the patent protection of green technology, the Green Technology Pilot Program ("Program"), accelerates the status of green technology through the United States Patent and Trademark Office (USPTO) patenting process. This Comment will suggest that the Program become a permanent feature within the USPTO and that it be expanded to allow maximum access. Finally, this Comment will recommend that the USPTO receive more funding (and keep the funding that it generates) to help alleviate delays, and the U.S. should be more receptive to green technology licensing in developing countries.

2. THE "GREEN" PROBLEM

   The American people's reliance on foreign oil, coal, and other nonrenewable sources has irreversibly affected not only the country's environment but also the country's economy and national security. In the 1960s, environmentalism began to gain popularity, (6) and the 1970s energy crisis opened the door for environmental legislation in the U.S. (7) The energy crisis demonstrated American dependence on fossil fuels and raised many questions about the country's energy policy and the security of its energy supply. (8) This realization led to many changes as environmentalism became more mainstream and the country started to develop alternative sources of energy and fuel efficiency.

   Since the 1970s, the environment has remained a concern. The Argo Merchant (1976), Exxon Valdez (1989), and "BP" Deepwater Horizon (2010) oil spills all serve as unwelcome reminders of the devastation wrought by human intervention on the Earth and of the fragility of nature. (9) President Obama referred to the "BP" Deepwater Horizon oil spill as "the worst environmental disaster America has ever faced," (10) and this oil spill serves as just one example of how our consumption has negatively affected the environmental landscape. Global warming has also evidenced the effects that people's use of nonrenewable energy has had on the environment. (11) Environmental scientists have been aware of and concerned about the change to the climate for the last thirty to forty years; however, only recently has climate change been acknowledged and recognized by the general public. (12) Scientists warn that in the future, global warming may cause coastlines to erode, ecosystems to disappear, and weather patterns to shift and change the way people live. (13) The U.S. remains the second highest producer of carbon emissions (only behind China), which is largely attributed to coal consumption, the most carbon-intensive energy source. (14) To curb these emissions, new sources of energy need to be developed.

   All of these phenomena placed the environment at the forefront of U.S. governmental policy. Political methodology aside, improvements in green technology, green conservation, and reduction of greenhouse gases are progress measures for which to strive.

3. ADDRESSING THE "GREEN" PROBLEM

   Where market forces have failed to introduce green technological solutions, the government has stepped in to stimulate innovation. However, government intervention has been met with opposition, on the one hand, from the commercial sector for regulations that restrict businesses and, on the other hand, from the international community for patent protection that inhibits dissemination of green technology to developing countries.

   1. Government Intervention

      Regulatory reform by the government may be necessary when normal market forces and corporate efforts are insufficient to spur green technology development. Government regulations can take the form of direct funding for research and development and of patent incentives for green technology. (15) Additionally, other government regulations may include antitrust law, technological standards, tax credits, government procurement policies, industry-government cooperative programs, consumer information disclosure programs, technology-based regulations, and market approaches (e.g. cap-and-trade programs, carbon taxes). (16) Although these regulations are important, the scope of this Comment will be limited to funding and patent protection for green technology.

      There is a general consensus that new eco-efficient, clean, and economically competitive technology is needed to solve the "green" problem. The path to new technological inventions starts with an increase in overall green technology research. (17) The next step is to develop these inventions for commercialization. An incentive to bring these "sustainable" and "greener" inventions to the general public resides in patent protection.

   2. Domestic Considerations

      Government regulatory reforms have experienced their share of opposition within the U.S. Arguably, the greatest opponents to the green movement are industries that see environmental reform as negatively affecting U.S. business and economy. (18) Besides businesses suffering burdens, consumers may not respond positively to new "environmentally friendly" products or changes to their lifestyle. (19) Especially during a recession, Americans may not be willing to make the "environmentally friendly" changes at the expense of economic growth. Engineering and scientific uncertainties arise with any new technology, as do the unanticipated impacts on the economy. (20)

   3. International Considerations

      International cooperation is essential to solving the global problem of climate change. Regulatory reforms by the U.S. government involve challenges that lie outside the scope of domestic policy. One such difficulty is the diverging interests of "rich" and "poor" countries. (21) Because the environment is often intricately tied to the economy and to national security, developing countries may not have the same incentives and priorities as do industrialized countries. Developing countries argue that industrialized countries went formerly environmentally unmonitored, which allowed them to flourish economically and politically. (22) Industrialized countries explain that developing countries could skip the heavy-polluting phase and implement green technology immediately. (23) Yet, developing countries generally do not have the financial resources to implement green technology and to overcome barriers to entry for new technology. (24)

      In 1992, the international treaty known as the United Nations Framework Convention on Climate Change (UNFCCC) was created at the United Nations Conference on Environment and Development (25) to address the intergovernmental effort on climate change. (26) Since then, UNFCCC signatories have met annually to assess UNFCCC member countries' progress on climate change and to establish legally binding obligations for developed countries to combat climate change. (27) In May 2009, despite developing countries' concerns that patents limited their access to green technology, the U.S. House of Representatives passed a bill that continued strong patent protection for green technology. (28) Additionally, the U.S. has not ratified the Kyoto Protocol in which "Annex I countries," or industrialized countries and countries in transition, committed themselves to reducing the emissions of four greenhouse gases and two groups of gases. (29) This U.S. response has made it clear to the international community that the U.S. economic goals take precedent over the concerns of the global community.

4. RESEARCH FUNDING AND PATENT PROTECTION

   One significant way in which the U.S. promotes the progress of science is research funding through the Department of Energy and through the National Science Foundation. (30) Moreover, the passage of the Bayh-Dole Act in 1980 allowed the recipients of federal government-funded research to control the intellectual property of their inventions. The most...