Is it Ethical to Patent Emerging Climate Tech?

The U.S. is fast-tracking patent applications for climate tech. Is this a good move?

This story was originally published by GreenBiz and is part of Covering Climate Now, a global journalism collaboration strengthening coverage of the climate story.

Way back in January 2021, newly inaugurated President Joe Biden signed Executive Order (EO) 14008. If you missed it, don’t worry. Most news was covering the events from earlier in the month, and this act of executive power went through with relatively little fanfare — despite its far-reaching implications for the climate tech community.

Essentially, EO 14008 placed the effort to mitigate climate change back onto the priority list of the federal government. One way in which this has manifested is with the U.S. Patent and Trademark Office’s (USPTO) June announcement of an exciting new program, the Climate Change Mitigation Pilot Program (the USPTO is not famous for its witty way with words). Henceforth, this program will be known as CCMPP for brevity’s sake.

The CCMPP was designed to “positively impact the climate by accelerating examination of patent applications for innovations that reduce greenhouse gas emissions,” according to the official announcement. While the pilot is intended to scale up production and distribution of climate tech, to potential funders, acquiring a U.S. patent increases the viability of the tech, protecting the value of the intellectual property and mollifying investors about their stakes.

Patents provide the holder exclusive intellectual property rights to the invention. In a capitalist system, the idea and practicality of a patent make sense. Profits made directly from the use of that invention go exclusively to the holder. Even President Abraham Lincoln himself once said, “The Patent System added the fuel of interest to the fire of genius.”

So, assuming a given technology meets CCMPP’s required criteria, it will bypass the average 18-month wait for patent application approval. Additionally, the application fees are waived.

But what if this pilot does just as much – or more – harm than good?

Lincoln did not forsee climate change

When an invention, such as a hypothetical GHG emission mitigating technology, serves a public benefit and could potentially affect the current path of the climate crisis, the implications of sole ownership become potentially insidious, given the literal life-or-death stakes.

Aidan Hollis, professor of economics at the University of Calgary, expressed the negative impact of climate tech patent holding well in a recent Grist op-ed. Citing a new technology that can smelt aluminum without emitting carbon dioxide, Hollis describes the boon the mechanism will bring to wealthy aluminum producers and countries that can afford to license the machine. However, Hollis continues, less affluent countries and producers will have to wait 20 years for the patent to expire and the tech to enter public domain, “but the world can’t wait that long to access breakthroughs that could help to save our planet.”

And thus the woes of patenting climate tech become apparent. In a time when communities across the globe are acutely and painfully feeling the impact of climate change, sequestering the rights to potentially life-changing technology poses moral and ethical quandaries. Should one person (or a board of people) be allowed the absolute power and distributive control of technology that can, hypothetically, prevent flooding or drought and with it the associated loss of life? Additionally, with the timeline to halt global temperature rise by 2030 becoming shorter by the hour, should patenting any technology aiding that goal even be allowed?

In terms of accessibility, does the concept of patenting climate tech reinforce the notion that the wealthy will weather the storm of the climate crisis and emerge on the other side while the poor are expected to bear the brunt of extreme weather and commodity shortages? Adversely, should the individuals who create the technology be expected to shoulder the burdens of solving the climate crisis without any kind of compensation for their efforts?

And who, precisely, is the patent program meant for? Due to imprecise language in the “Qualifications” section of the pilot program, an immediate question comes to my mind: Can a technology with ancillary GHG emitting effects qualify for the expedited application process offered in the CCMPP?

An example. If Company X figures out a way to cool homes without emitting hydrochlorofluorocarbons, can Company X apply for expedited patent approval through the CCMPP, even though GHG emission mitigation effects are ancillary to the main purpose of the machine, a.k.a. cooling buildings? It would make sense to allow these types of applications to proceed.

But, because the language isn’t clear, those arguing against ancillary impact could easily assert that applicants could take advantage of the pilot program to further their own economic ends. This notion is supported by one of the CCMPP’s vague application requirements: “the applicant has a good faith belief that the expediting patent examination will likely have a positive impact on the climate.” So much subjectivity lies within the meaning of “good faith belief.”

Another example. Company X has eliminated the toxic release of the hydrochlorofluorocarbons from its product, but the true purpose of Company X is to cool buildings and sell cooling units, not mitigate GHG emissions to have a positive impact on the climate. The CCMPP could be seen as an expedited path to market for Company X, providing an unfair economic advantage.

The supercharged injection of the Executive Branch

The Biden Administration aims to address the historical precedent of uneven accessibility. The White House created the Justice40 Initiative, pledging that 40 percent “of the overall benefits of certain Federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.”

Michelle Moore, CEO of Groundswell and a senior adviser of the White House Office of Management and Budget during the Obama administration, spoke to GreenBiz regarding the connection between this initiative and the CCMPP. Moore said, “The USPTO’s program to supercharge the patent process for climate mitigating technologies is also going to benefit scientists, researchers, innovators, entrepreneurs [and] inventors who have historically been underrepresented … and that really helps to realize the wealth-building promise of the innovation that’s being unleashed by the IRA’s historic investment.”

Both the Justice40 program and the CCMPP got their start due to EO 14008, indelibly connecting the effectiveness of the former to benefit the latter.

And the CCMPP is moving forward. As of last week, 71 applicants have been filed, with 28 granted. The CCMPP will allow only 1,000 applications to proceed through June 5.

With luck, federal bureaucracy will actually aid in the stimulation of the climate tech sector while simultaneously increasing hitherto universal accessibility. As with all government initiatives, only time will reveal the true success or failure of the program.

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