Gimme a Break: the Patent Term Restoration Act Should Give Environmental Innovators a Chance to Catch a (cleaner) Breath

• Publication year: 2021

Gimme a Break: The Patent Term Restoration Act Should Give Environmental Innovators a Chance to Catch a (Cleaner) Breath

Gabrielle Gravel

University of Georgia School of Law

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GIMME A BREAK: THE PATENT TERM RESTORATION ACT SHOULD GIVE ENVIRONMENTAL INNOVATORS A CHANCE TO CATCH A (CLEANER) BREATH

Gabrielle Gravel^*

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Table of Contents

I. Introduction....................................................................................................415

II. Background......................................................................................................415

A. We've Made our Bed, Now It's Time to Lie in it.................421

1. All we are is dust in the wind.......................................................422
2. Come on in, the water's warm.....................................................423
3. Can we ever go back to the land before time?.........................424

B. It's Not that Big of an Ask..........................................................425
C. The Legal Nexus..............................................................................431

1. Legislative History.........................................................................431
2. Title II: The Basics.........................................................................431

D. Language o f the Statute............................................................432

III. Analysis..............................................................................................................433

A. In Real Time.....................................................................................434
B. Justification for Patent Expiration in General.............436
C. Addressing Counterarguments...............................................438

IV. Conclusion..................................................................................................440

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I. Introduction

The natural environment, once pristine and thriving, has taken the brunt of the side effects of human advancement. Around the world, problems with degradation of water, land, and air have become undeniable. There is a policy solution that is relatively simple to implement: expand the Patent Term Restoration Act to include technology addressing environmental issues. The Patent Term Restoration Act (The Act), also nicknamed the Hatch-Waxman Act, preserves the entire life of a designated patent by deferring the clock until the inventor's product actually hits the market.¹ The Act will "reimburse" the inventor up to five years of time lost to the patent life.² This Note addresses these issues and corresponding anecdotes in detail. Further, it will discuss the successes of patented technology that helped solve said pressing issues.

The heart of this Note argues for expanding The Act's terms to include environmental technology to dramatically increase the incentive to innovate in an area whose priority is significant to continued human existence. To illustrate the need for this extension, this Note will explore the vast environmental issues facing the planet due to human activity. Then, this Note will turn to how innovation protected by patents has incentivized and brought about solutions through specific inventions. The Patent Term Restoration Act will be broken down to analyze legislative intent, the application of the Act, and how its benefits have materialized. Next, the discussion section will explore obstacles in the patent world of environmental technology like stagnation, lower incentives for innovation, the massive amount of time and money devoted to one invention, and how not having the benefits of the Patent Term Restoration Act hurts the progress of mitigating and solving these issues.

The analysis section will cover how the Patent Term Restoration Act could and should be applied to environmental technology. This section will explain which steps would need to be taken to make this change at both the legislative and agency level. This Note will address common counterarguments, explain how this extension could positively shape our next generation's future, and outline the potential risks of not implementing this extension.

II. Background

The world has no shortage of anthropogenic pollution and disasters affecting both natural and manmade landscapes.³ Globalism and a modern economy have

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connected populations in different hemispheres as well as increased standards of living.⁴ This tremendous growth, however, comes at a cost to the planet. consequently, the same technology that raises standards of living may also emit enough pollution to bring the overall health of the loci in question back to square one.⁵ It has been over thirty years since Americans first became significantly concerned with the state of the environment and climate.⁶ Yet, only minimal progress has been made to rectify the situation, and atmospheric levels of greenhouse gases continue to rise annually.⁷ Fortunately, the brilliant thing about technology and innovation as a whole is that there are no limits to their potential. Two hundred years ago, the humans populating the Earth probably would never guess that their descendants would be able to travel the world in a matter of hours via airplane, order takeout on a touchscreen device, or video-chat a friend two states over. Talented human minds have done the impossible, and there is no evidence to believe that we are not able to invent manmade solutions to manmade problems. When "[p]roperly directed, technology can also clean up and control some of the environmental problems it caused in the first place."⁸ For example, invaluable technology like automobiles came with a side effect of emitting carbon dioxide. In recent years, these same car emissions were reduced by subsequent inventions improving fuel efficiency and the ability to use fuel alternatives.⁹ inventions at large have found ways, through evolution, to improve with each new model. The point is that energy efficiency, reduced emissions, and creative solutions to environmental issues have always been a drawing factor of patented innovation.

It is no secret that the world we live in is beginning to change due to anthropogenic vices. Meeting the needs of the world's ever-growing population will very likely be the straw that breaks the very patient camel's back. As of

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November 2020, the United Nations estimated Earth's population at 7.9 billion.¹⁰

A species' carrying capacity is the maximum number of individuals that can be supported by their environment before resources are exhausted.¹¹ While pinpointing the precise number is a challenge, climate scientists believe nine to ten billion people is the human carrying capacity.¹² With that being said, Earth's human population is expected to reach nine billion by 2037 and ten billion by 2057.¹³

Sole reliance on fossil fuels for global energy, while not to mention detrimental, is not a lasting and sustainable solution for the energy demands of the infinite future.¹⁴ In 2017, the Intergovernmental Panel on Climate Change ("IPCC") released data from its Fifth Assessment Report asserting that human-induced global warming post pre-industrial levels had reached an increase of approximately one degree Celsius.¹⁵

Further, the IPCC opines that to combat Earth's increasing temperature, humans cannot ignore the problem but instead must implement "indispensable" mitigation actions.¹⁶ Finding new ways to reduce human reliance on fossil fuel energy sources, like natural gas, oil, and coal, would reduce the stress on the planet.¹⁷ The many forms of renewable energy, such as biopower, solar power, geothermal energy, hydropower, and wind energy,¹⁸ need to be made more accessible to the general population as reliable sources of energy. society needs

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inventors and engineers to make this possible. Thus, society should incentivize such innovation in renewable energy by adopting more enticing patent policies.

To address the growing problems of environmental degradation and the need for more efficient renewable energy for a growing population, the United States could consider looking to existing statutory schemes that might be adapted to benefit inventors, the government, and the public. With helpful tweaks to this system, the answer to all energy problems would be on their way to being solved. Like the many phases of common technology, American patent law is no stranger to evolution. Patent origins date back to England as early as the sixteenth century before being officially codified into English law in the Statute of Monopolies of 1624, giving the owner of new products a fourteen-year monopoly.¹⁹

Patent rights were used in America long before 1790 when President George Washington signed the first American patent bill.²⁰ States were issuing their own patents and assigning various patent lives to America's earliest inventions.²¹ Article I, Section 8, Clause 8 of the U.S. Constitution "grants Congress the enumerated power 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'"²² The original patent bill protected novel ideas for a maximum of fourteen years and cost applicants between $4 and $5.²³ The basis of this first intellectual property clause was the British statute of Monopolies.²⁴ Later nicknamed "the cornerstone of American Patent Law," fourteen years was automatically assumed to be an adequate patent life as no discussion was held on the topic at the First Federal Congress.²⁵ Later, in an 1836 amendment, under certain circumstances, patents could be granted an extension for seven years, making the full patent life twenty-one years for some

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inventions.²⁶ At a cost of $40, this first swing at extending the patent life required inventors to present to the Secretary of State, the Commissioner of the Patent Office, and the Solicitor of the Treasury...