Technology Driven Environmental Standards: A Filewrapper® Series on Environmental Technology and Patent Protection--Part II

October 03, 2016
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Filewrapper® previously introduced a new series of blog postings on the considerations for patent protection of environmental technology. Before discussing patent protection for these emerging technologies, it is beneficial to understand the regulatory system in which environmental technology must live in order to be placed into a commercial setting.

While concerns about the quality of the environmental have persisted throughout the nation's history, many cite the publishing of Silent Spring by Rachel Carson in 1962 as the spark that ignited the fire driving the regulation of practices and technology in industries that impact the environment. As regulations and laws have been passed over the past fifty years, technology considerations have been built into the two preeminent environmental regulatory statutes: the Clean Air Act ("CAA‚¬) and the Clean Water Act ("CWA‚¬).

Broadly, environmental technologies can be classified into two categories: mitigation and adaptation. Mitigation technology is a term used for projects or programs that are intended to offset impacts to a natural resource, and in the context of climate change, mitigation technology is specifically directed toward the reduction of greenhouse gas emissions. In contrast, adaptation technology is defined as that which anticipates the adverse effects of climate change and taking appropriate action to prevent or minimize the damage caused.

Provisions contained within the CAA and CWA are considered to be technology based and have arguably helped drive innovation. For example, the CWA establish three technology classifications: (1) best practicable control technology; (2) best control measures and practices achievable; and (3) best conventional pollutant control technology. Each of these technology classifications are applied to a particular class of pollutant, rather than on a source-by-source basis. For example, toxic pollutants (i.e., those listed at 40 C.F.R. §401.15—arsenic, benzene, cyanides, etc.) are subject to best available control technology standards, making any cost-benefit analysis of the technology an impermissible factor in developing the standards of regulation. As such, when new technology enters the market for control of toxic pollutants, industries are required to utilize these best available technologies for any new sources of pollution within the category. The regulations under the CAA are similar and both systems are considered to be designed to be "technology forcing"or motivate development of new environmental technology.

This regulatory structure creates interesting considerations for companies developing and using environmental technologies that would benefit from patent protection and/or licensing structures. In the next Filewrapper® posting in this series, we will explore USPTO efforts and programs designed specifically for environmental technologies.

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