Intellectual property (IP) is often unrecognized as a form of governance, but it shapes the development of technology in pivotal ways. Both the US and UK governments have recognized this in their discussions about the governance of geoengineering, suggesting that perhaps this new high-risk, high-reward technology should be “regulated as a public good” (United Kingdom, 2010; Royal Society 2010). Our preliminary research assesses the current geoengineering patent landscape in the United States and demonstrates that, while relatively few patents have been granted to date, certain trends – including the provision of broad patent language, dramatically increasing numbers of applications, and the concentration of patent ownership – suggest that patents will play an important role in how this technology develops. These developments are particularly troubling because of the high risks and uncertainties of geoengineering, and because of their resemblance to the biotechnology patent landscape in the US, which has been increasingly attacked because it may be stifling innovation and working against the public interest.
This memo explores the possibility of creating a sui generis system for geoengineering patents, and investigates the current approach to atomic energy patents in the United States as a potential model. If we act now, we have a window of opportunity to avoid the problems that arose in biotechnology and establish a patent system that will guide geoengineering technology toward the best interests of innovators and the public at large.
A preliminary investigation of the geoengineering patent landscape reveals the following findings:
- different levels of activity between different types of geoengineering;
- a recent rapid increase in patent applications covering geoengineering technologies;
- broad patent language, likely covering many future innovations;
- concentration of patent ownership among a few entities;
- patents owned by non-practicing entities (NPE’s); and
- geoengineering patents issued by multiple patent offices to inventors across the world.
The risks of geoengineering are no less than those of atomic energy. Geoengineering stands to have a global effect with irreversible consequences. Experimentation and implementation of geoengineering technologies are extremely difficult to differentiate, further complicating the issue. Government must therefore be able to reach in and take ownership of certain patents deemed too risky be to left in private hands. Given the incredibly high stakes of geoengineering and climate change, a body with responsibility to the public—and with a broad, interdisciplinary, perspective—must use the power of the patent system to ensure the public good. If geoengineering is a ship, patents are the rudder, providing a mechanism to direct its path, maximizing its potential benefits while minimizing its potential risks. However, the narrow window in which we have to act is rapidly closing. Geoengineering will continue to follow the path already tread by biotechnology, if no patent intervention occurs soon.