In what seems to be a novel way of exploiting the public disclosure function of patent applications, the U.S. Environmental Protection Agency (EPA) recently began reviewing applications for pesticides in connection with the agency’s disclosure requirements and enforcement actions.
As discussed in this article by Lawrence Culleen, an environmental lawyer at the Arnold & Porter law firm, makers of pesticides are required to inform the EPA of potential adverse effects of certain chemicals and products.
In a recent lawsuit objecting to its decision to register a pesticide, EPA officials found additional details in patent filings showing that the chemical components of the product could have a synergistic effect such that the product might more effectively control unwanted weeds.
This information about the combination of active ingredients, the article says, may be relevant to the agency’s product registration terms, approval of instructions for use, application rates, and warnings, and suggests that the product might have adverse effects on “non-target organisms.”
The type of information the EPA officials discovered is fairly common in patent applications and related documents submitted to the U.S. Patent and Trademark Office (USPTO). In attempting to demonstrate the patentability of an invention, applicants sometimes point to data that they argue show “unexpected results” or levels of effectiveness significantly better than state of the art products.
Pharmaceutical and chemical patent applications, in particular, often provide multiple examples of compositions or solutions and testing data showing their effectiveness.
The interesting question is whether the EPA (or other agencies, for that matter) will use this tactic in fields other than pesticides. Is there a need for review of patent applications in other technology areas?
Theoretically, the Federal Drug Administration might be interested in patent applications relating to pharmaceuticals, biologics, and medical devices. But the FDA approval process is rigorous and the reporting requirements strict.
Query whether other technologies relating to the environment would lend themselves to this type of scrutiny by the EPA, or whether green technology patent applications would interest other agencies (e.g., the Department of Energy).
In light of the Volkswagen emissions scandal, it would have been prescient of the EPA to search for patent filings relating to VW’s electronic control module, the software that activated its vehicles’ emissions controls during testing. If they had found such documents a while ago, they might have provided an important early clue about the scandal to come.