Patents traditionally are used for the private good of the property holder. At best, the public benefits only indirectly from the resulting technology innovations. But what if patents were used directly for the public’s good, to reduce carbon emissions?
Specifically, what if one of more Green NPEs assembled and enforced a portfolio of patents to impose, in effect, a carbon royalty on moving greenhouse gases from ground to air?
Using patents to impose a carbon royalty has some fundamental advantages.
First and foremost, patents are private property and private-property owners have huge advantages in civil litigation over mere concerned citizens. For example, unlike traditional environmental civil litigation, there is no difficult “standing” hurdle to clear.
Second, patent licensing is extremely flexible, particularly given the weakened state of the “patent misuse” defense today. Once a patent-infringement suit gets a target’s attention, there is no end to the variety of licensing agreements and royalty-payment structures that can be tailored to a particular targeted practice and actor to serve both private business interests and also publicly beneficial carbon-emission-reduction goals.
For example, the Green NPE might seek an injunction under 35 U.S.C. § 271(g), against sale of bitumen-derived petroleum coke produced by the patented method, and license the patent only for use with improved petroleum coke processing techniques or equipment but not for coke derived from tar sands bitumen.
Third, despite some weakening over the past decade, patents still are monopolies with powerful exclusionary rights, and the “public interest” is a key factor courts consider when deciding whether to enjoin infringements.
What kinds of patents?
First, obviously, patents on inventions important to the offending technology. E.g., a patent covering a method or component widely used in the production or processing of bitumen-derived petroleum coke. Such patents can be enforced against selected targets to either enjoin the offending activity outright or to license it with restrictions geared toward curbing impacts on the climate.
Second, less obviously, patents on important ancillary technology, such as information technology, used by the targeted entity in connection with the targeted activity. This category includes patents on “beneficial” technologies that, e.g., decrease the emissions from a particular activity, but that companies need to use to remain competitive. These too can be enforced and licensed in ways that curb the offending activities of selected targets.
What’s needed to pursue this idea?
A network of patent attorneys, industry engineers and scientists, environmentalists, and investors. Perhaps the network would form one or more Green NPEs to build and enforce the patent portfolio, possibly in cooperation with the most progressive companies in the industry.
Comments? If you’re interested in exploring this idea please e-mail John D. Vandenberg, a patent litigator in Portland, Oregon, at firstname.lastname@example.org.
John Vandenberg has been representing clients in patent litigation for more than 30 years and recently argued successfully before the U.S. Supreme Court on the issue of patent “indefiniteness.”