Liscow & Karpilow on Innovation Snowballing and Climate Law

Patent scholars are often skeptical of the government "picking winners," but in Innovation Snowballing and Climate Law, Zach Liscow and Quentin Karpilow (Yale Law) argue that the government should target specific technologies to address social harms like climate change.

It is well known that green technologies present a double externality problem. Both innovation and environmentally friendly goods have significant positive spillovers (and thus will be undersupplied absent government intervention), and the problem is magnified for environmentally friendly innovations. The standard policy solution is to correct each externality, such as through carbon taxes (or cap and trade) and innovation subsidies (e.g., patents, grants, and R&D tax incentives).

Liscow and Karpilow argue that this approach misses the dynamics of cumulative innovation. We know that innovators stand on the shoulders of giants, but Innovation Snowballing describes recent research on how innovators "prefer to stand on the tallest shoulders in order to get the quickest, largest financial returns." Specific "clean" technologies (like solar) thus need a big push to snowball past "dirty" technologies (like fossil fuels):

Kiesling & Silberg on Incentives for Rooftop Solar

I've written about innovation policy experimentation and about incentives beyond IP, so I was interested in a new working paper posted by Lynne Kiesling and Mark Silberg, Regulation, Innovation, and Experimentation: The Case of Residential Rooftop Solar. They are not lawyers, but their description of incentives for the development and commercialization of rooftop solar will be of interest to legal scholars of innovation, as it underscores that the role of the state is far more complex than simply providing IP incentives. (Indeed, the paper never mentions IP.)

These incentives include a 30% federal tax credit (set to expire at the end of 2016), as well as many state-level incentives, such as volumentrically reduced subsidies to benefit first movers, net metering policies requiring credits to consumers who produce excess energy, and financial regulations that allow third-party financing to help consumers avoid upfront capital expenses. As they note, "the details matter," and "[n]ot all renewable portfolio standards are equal." This paper seems to nicely encapsulate many of those details.

Elizabeth Burleson & Winslow Burleson - Innovation Cooperation: Energy Biosciences and Law

Can the world avert catastrophic climate change through sustained legal cooperation resulting in environmentally efficient, sustainable technology? In Innovation Cooperation:Energy Biosciences and Law, Professors Elizabeth Burleson and Winslow Burleson discuss how different organizations must work together to overcome the imminent threats of climate change. The article delves into the international, legal, and societal barriers that prevent the diffusion of climate change technology while addressing the innovative steps that are being taken to overcome these obstacles.

Cultural Cognition Project: Rationality and Climate Change

While I was in law school, I worked on survey design and data analysis for the Cultural Cognition Project, led by Professor Dan Kahan. We just posted a new working paper to SSRN: The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change. Here is the abstract:

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

Comments are welcome!

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?

Fighting Over Green Patents: How To Appease China & India Without Hurting U.S. Business

Tomorrow at the Yale Climate & Energy Congress Symposium, I will be presenting on a Comment I published in the Yale Law Journal last May: Addressing the Green Patent Global Deadlock Through Bayh-Dole Reform. (I also wrote a nontechnical version of this argument for Slate: License To Green: Can We Have Clean Energy and Patents, Too?) Rather than summarizing the whole argument here, I will just point out the three pieces that I think are novel contributions:

1. One way to address global concerns about green patents is by changing the way federally funded green technologies are patented and licensed. A number of articles had recognized that conflicts over IP are contributing to the deadlock in climate change negotiations, but none made the distinction between the patent incentives needed for public-sector and private-sector innovation. I examine the justifications for Bayh-Dole patents as applied to green technologies and conclude that in light of available evidence, patents will impede dissemination of most green technologies.
2. Market segmentation should be used for green technologies. The strategy of allowing strong patent protection in rich countries (to recoup development costs) while allowing broad access in poor countries has been made by scholars, advocates, and universities in the medical context (see, e.g., this policy statement from AUTM and many universities), but I'm not aware of anyone who had extended this argument to green engineering technologies. And market segmentation is even more compelling for green technologies because patent protection is less important for them than it is for pharmaceuticals.
3. Funding agencies should use their ex ante control over who receives federal grants to influence licensing policies. Several scholars, particularly Professor Arti Rai, have looked at the impact that funding agencies can have on Bayh-Dole reform, but their focus has been on the ex post influence of these agencies on technologies that have already been developed. I argue that agencies could influence university licensing more effectively through their ability to determine who receives federal grants in the first place. For example, the National Science Foundation's "broader impacts" criterion could be used to encompass access-promoting licensing policies.

I welcome feedback, either in the comments or by email. And for readers in New Haven, feel free to stop by the symposium!