Sarah Tran on Expediting Green Patents

The PTO's Green Technology Pilot Program, which expedites review of green patents, "looks far greener than it actually is," argues Sarah Tran (SMU Law) in Expediting Innovation: The Quest for a New Sputnik Moment (forthcoming in the Harvard Environmental Law Review). Tran argues that the PTO should reduce obstacles to expedition in order to "better optimize the constitutional patent bargain while responding to critical public needs." Although there are problems with the Sputnik analogy, I agree that developing green technologies should be a top priority, and we should think about how to support both creation of and access to green patents.

The Green Technology Pilot Program was launched in December 2009 in response to green patent programs in the UK, Japan, Australia, and Korea. But Tran points out that it was limited to patents already in the system falling within a small subset of technology classes, with further limitations on types and number of claims. Perhaps more problematic, "accelerated review was only available for one year to applications already in the system—the program had no relevance to technologies that had not yet been invented." But even now that many of these restrictions have been removed, the program remains under-enrolled. What's wrong with it, and how can it be improved?

Tran argues that "the PTO overstated the benefits" of the program, and that patentees rationally decided that the few months they might gain were not worth "the costs associated with hiring a lawyer to file a petition for expedited review and the [appreciable] risk that the petition will be dismissed or denied." And the limited period of the program is insufficient to provide innovation incentives; Tran interviewed an anonymous PTO representative who explained that "the PTO did not want to provide incentives for additional patent applications to be filed because that would contribute to the PTO's backlog problem," which Tran argues is "antithetical to the rationale underlying the existence of the patent system."

How does Tran think the PTO should improve the Green Technology Pilot Program? She makes three suggestions in Part IV:

1. "Eliminat[e] the majority of the ill-conceived eligibility constraints . . . such as the restrictions on the number and types of claims . . . ."
2. "[M]ake the opportunities for accelerated review last sufficiently long for an inventor to conceive of an idea, reduce it to practice, and prepare an application for it."
3. "[A]ctively collaborat[e] with other agencies and . . . rely[] on Presidential declarations of what constitutes a socially-valuable technology . . . [to] better select and more narrowly define the categories of inventions that are eligible for expedited review," as allowed under 37 C.F.R. § 1.102(b).

These seem like sound suggestions. I wonder, however, if the patent system is the best way to address the green technology needs that Tran describes. If we really want green technologies to be available as quickly and cheaply as possible, that may argue in favor of more government prizes and contracts, or some scheme like Michael Kremer's patent auctions. Steven Shavell and Tanguy Van Ypersele, for example, argue that optional reward systems are superior to IP rights. These options would avoid the deadweight loss associated with patents, and they would allow the new technologies to be produced at marginal cost immediately, rather than only after 20 years.

Still, to the extent that some green technologies will be promoted through the patent system, Tran's suggestions seem to make sense. Indeed, the PTO seems like it could learn something from the FDA, which provides extra incentives for drugs with significant social benefit through programs like Fast Track review for drugs for serious diseases and special incentives to create orphan drugs, and which has maintained these programs for long enough to have some effect on innovation.