Environmental Patent Litigation: A Filewrapper® Series on Environmental Technology and Patent Protection-Part VOctober 31, 2016

In this final week of the Filewrapper® series on considerations for environmental technology, we will be discussing environmental intellectual property litigation and wrap up with final conclusions and thoughts.

The grant of a patent is the right to exclude others from the practicing the invention. On the other end of the spectrum is technology that is well within the public domain.As previously discussed, environmental technology may serve the public good by being in the public domain, however under the technology driven standards of the CAA and CWA, seeking patent protection may be economically favorable both in terms of licensing and litigation.

Between the years of 1999 and 2006, approximately 1.6 million patents were granted. Of those, approximately 6% have been in the area of environmental technology with a steady increase during that time according to the Organisation for Economic Co-Operation and Development. During this same time frame, the number of patent litigation cases filed increased as well. While exact figures regarding environmental patent litigation are not readily available, if we assume that litigation in environmental technology has kept pace with patent litigation in general, it is a reasonable assumption that environmental patent litigation has increased as well. Due to the tension between public welfare and economic capitalization, the secondary implications of patent litigation for environmental technology are perhaps amplified, including the need for protective orders, involvement of licensees, and marketing and business concerns. Further, strategy for maintaining patent validity and some level of enforceable claim scope should be considered in order to continue to benefit from the regulatory structures of the CAA and CWA.

In conclusion, consideration of public health and welfare is certainly a cornerstone of environmental law and as the public continues to become more informed, it is unquestionably in the best interest of environmental technology developers and patent owners to consider strategies that balance societal concerns with the incentives of seeking patent protection, economic or otherwise.  A patent life cycle analysis that includes consideration of front-end protection and commercialization strategies as well as litigation and enforcement could begin addressing the tensions felt in the area of environmental technology. 


We hope that this series of posts has been informative and beneficial.  If you have any questions or comments, please contact the author directly at www.caitlin.andersen@ipmvs.com or


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