Patent and Trade Secret Protection Considerations: A Filewrapper® Series on Environmental Technology and Patent Protection-Part IVOctober 19, 2016

In this fourth week of the Filewrapper® series on considerations for environmental technology, we will be discussing the tensions that arise in protecting environmental technology through either patents or trade secrets.

As with any invention, the selection of trade secret or patent protection comes down to value of the technology as either proprietary or a commercial product. However, this area can be muddled in the environmental field of endeavor where there is a question of public welfare as well. This gets to the heart of the tension between intellectual property protections-which are designed to aid inventors and owners-and the technology-based permitting and regulatory structures for environmental control-which are ultimately designed to aid the public health and welfare.

In the situation where such environmental technologies are placed in the patent system, the implementation of technologies which reduce emissions or discharges can be accompanied by potentially expensive licensing fees. However, under the regulatory structures of the CAA and CWA as previously discussed, it is arguable that when there is a new source of pollution that requires “best available control technology,”there is an expectation that such technology will be used, regardless of potential licensing costs as cost-benefit analysis is impermissible per the statute in selecting such technologies.

Even if it is believed that all environmental technology is best placed in the patent system so that it eventually ends up in the public domain, it may be that some environmental technologies are better kept as a trade secret. This is particularly true if such technology provides additional processing benefits, such as reduction of energy or raw material expenses, which would provide an economic advantage.

Accurate valuation and future projections of valuation of any technology is important when deciding which avenue of protection to pursue; however, it is especially important in the context of environmental technologies where licensing is almost compulsory in nature. Seeking out this valuation and advice on protection for each particular technology is imperative in order to protect rights, but to effectively balance these financial considerations with the societal needs of environmental mitigation.

In next and final Filewrapper® post in this series, we will look at environmental intellectual property litigation and wrap up with final conclusions and thoughts on this issue.

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