Wil Schueler, Associate Member 2025-2026
Intellectual Property and Computer Law Journal
I. Introduction
Ninety-nine percent of coral reefs, which house thirty percent of marine life, will be lost if the world warms 3.6°F.[1] Yet, the current patent incentive framework is scarcely utilized and offers inadequate motivation.[2] This blog explores how patent incentives can impact climate change and sustainability. Part II examines the general U.S. patent framework, the application process, and current green patent incentives. Part III discusses the strengths and weaknesses of the current incentive framework and the potential for reform in the United States. Finally, Part IV concludes by recognizing the need for reform within the field and suggests a solution.
II. Background
U.S. Patents in General
Patents are often cited as a cornerstone of innovation.[3] In 2020, there were nearly 650,000 total patent applications in the U.S. alone.[4] Many people, however, struggle to understand what exactly a patent is and what exactly constitutes a patentable invention.[5] A U.S. patent gives the inventor the right to exclude others from making, using, or selling an invention in the U.S.[6] There are three types of patents: a utility patent for inventing a new or improved and useful process, machine, or composition of matter; a design patent for inventing a new and original design for an article of manufacture; and a plant patent for inventing or discovering and asexually reproducing any new variety of plant.[7] Utility and plant patents have a term for up to 20 years, while a design patent has a term of 15 years.[8]
For a patent to be issued, the invention must meet four conditions: (1) the invention must be able to be used (i.e., it cannot only be theoretical); (2) there must be a clear description of how to make and use the invention; (3) the invention must be new or novel; and (4) the invention cannot be obvious as related to a change or something already invented.[9] If your invention meets these four conditions, it is likely patentable. Assuming the idea or invention is patentable, the process to apply for a patent consists of five steps.[10] First, the inventor must prepare to apply by determining if the invention is patentable, searching to see if the invention already exists, deciding what type of patent is needed, preparing for the costs of filing an application, determining whether international protection is warranted, and hiring a patent attorney, or agent, if desired.[11]
Second, the inventor must file their application.[12] This step consists of creating a United States Patent and Trademark Office (USPTO) account, preparing the application to meet detailed legal requirements, submitting the application to the USPTO patent center, paying the corresponding filing fees, and making pre-prosecution edits if the application is incomplete at the time of filing.[13] Third, the application will be prosecuted.[14] Here, the USPTO will assign the patent application to a technology center that will examine whether the application meets the legal requirements, and the patent will also be reviewed for conflicting patents that may already exist.[15] Fourth, the inventor will be notified whether their patent has been granted or rejected.[16] If the inventor is granted the patent, they will have to pay an issue fee and possibly a publication fee.[17] Fifth, and finally, the inventor must maintain legal protection for their invention by paying maintenance fees at set dates to keep the patent valid.[18]
Receiving a patent is neither easy nor quick; step three alone, prosecution, takes more than two years on average.[19] Recognizing this, certain countries have taken steps toward incentivizing patents they deem worthy of special treatment.
Current Patent Incentives
In the U.S., the most prominent incentive program is Patents for Humanity, a program created by the USPTO, which awards green patent incentives.[20] According to the USPTO, a green patent may be granted for technologies that help protect the environment or improve sustainability.[21] Eligible inventions must be directed toward green energy technologies including areas of wind, solar, green hydrogen, hydropower, geothermal, and biofuel technologies.[22] Patents for Humanity is an awards competition managed by the USPTO and recognizes innovators who use game-changing technology to meet global humanitarian challenges.[23] Applicants are evaluated on the effectiveness of their technology in addressing humanitarian issues, their contributions to increasing the use of the technology among the impoverished, and the impact those contributions have made.[24] Winners receive an acceleration certificate to expedite certain USPTO proceedings, as well as recognition of their work.[25] The winners may use the certificate to expedite a patent application, an ex parte reexam, or an ex parte appeal to the Patent Trial and Appeal Board.[26] If the winner elects to accelerate a patent application, the USPTO aims to issue a final disposition within twelve months, which is an acceleration of more than a year.[27] For example, one of the 2024 Patents for Humanity: Green Energy award recipients was the University of South Florida, T2CE Biofuels, which developed a method to convert everyday waste material into diesel, marine, and aviation fuel.[28]
Another incentive for green technology comes from 37 C.F.R. § 1.102, which allows patent applicants to request a “special” designation.[29] Under 37 C.F.R. § 1.102, a petition to make an application special must be based on a claim that the invention enhances the quality of the environment, conserves energy resources, or counters terrorism.[30] Similar to Patents for Humanity, the program’s goal is to offer accelerated examination within twelve months of being granted special status.[31] As of July 10, 2025, this program is no longer available for utility patents and is now only available for design patents.[32]
While these programs offer important benefits and incentives, it remains uncertain whether they provide sufficient motivation for innovators to invest in the development of technologies capable of combating the climate change crisis.[33]
III. Discussion
Are Green Patent Incentives Enough?
To begin, it is necessary to acknowledge the strengths of green patent incentives. First, patents in general inherently provide an incentive to technological innovation by providing innovators exclusive rights to their inventions.[34] Further, the innovator can potentially recoup their research and development investments through licensing fees or royalties.[35] Another strength of current incentives, particularly application acceleration, is the expedited nature of the application process.[36] The Patents for Humanity program, for example, allows innovators to cut the application time in half.[37] Along with this, winners of the program are awarded public recognition which can draw investors, showcase the work, attract support for green technology, and raise awareness of the importance of the technology.[38] Despite these advantages, there remains evident weaknesses.
One of the most noticeable weaknesses is the lack of market or financial motivation.[39] While the legal attribution of incentives is important, most motivation comes from the market.[40] Within the field of green technology, there is often a lack of individual demand in the market.[41] For example, researching and developing a new drug for an extremely rare disease may be morally laudable, but the market is not demanding enough to provide sufficient monetary incentive.[42] Another weakness is that large companies, the primary actors who engage in research and development, may not desire a fast-tracked pathway.[43] The accelerated process may be appealing for smaller start-ups seeking funding, but for larger companies, a longer timeline can be critical for the research and development needed to finalize a green patent.[44]
Additionally, the appeal to approve and fast-track green patents to promote innovation within green technology could also have the opposite effect.[45] Patents can be used not only to prevent imitators but also to drive competitors out of an innovation market.[46] For example, patents in the IT and pharmaceutical sector have been used as strategic weapons.[47] Using patents in this way obstructs dynamic competition and further innovation.[48] This makes it clear that while green patent incentives have benefits, current practices may still be insufficient to address the harm posed by climate change.
Possible Solutions and Reform
Current approaches do not adequately motivate innovators to combat climate change. However, there are potential reforms that could change the outlook. One possible reform would be to implement positive state intervention. This could come in the form of incentivizing green technology innovation by promising monetary advantages to companies that are willing to invest in the clean energy sector.[49] Monetary advantages could be offered in the form of grants, tax breaks, or direct investment in research and development for certain innovations.[50] The challenge with this type of reform would be deciding how to prioritize the different technological innovations.[51]
Another possible reform would be to disincentivize environmentally harmful innovation, which in turn would promote green technology innovation. Scholars argue that disincentivizing harmful innovation could be accomplished utilizing Art. 27.2 Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the international agreement from the World Trade Organization (WTO).[52] This agreement allows patent applications to be denied when their commercial exploitation must be prevented for reasons of ordre public, a concept that includes protecting human life and avoiding serious harm to the environment.[53] However, this is not mandatory and gives the deciding country the discretion to deny patentability based on environmental interests.[54] If the USPTO started to invoke and read Art. 27.2 TRIPS more broadly, the U.S. could combat harmful innovation while promoting productive innovation.
Finally, the U.S. should keep the fast-track routes open and let innovators decide if they want to take advantage of those programs. While statistics show that companies rarely apply for fast-track options,[55] those options still provide meaningful benefits by reinforcing and broadening the availability of utility patents. A granted patent can also be a sign of a company’s innovative strength.[56] Allowing start-up companies to receive a patent faster, if desired, would better equip them to seek investments, attract recognition, and prevent unauthorized use.[57] Overall, while these reforms are theoretical, they could spark the innovation of desperately needed technology if implemented in the U.S. and abroad.
IV. Conclusion
Climate change is undoubtedly an issue. The Executive Director of the International Energy Agency warned in 2021 that “around half the emissions reductions to get to net zero by 2050 may need to come from technologies that are not yet on the market.”[58] Green patent incentives are a meaningful start, but the current framework in the United States must be bolstered to increase motivation for sustainable innovation. By implementing positive state intervention, disincentivizing patent applications for harmful innovations, and strengthening current fast-track procedures, the U.S. would be off to a good start in addressing the climate crisis.
[1] 5 Alarming Facts About Climate Change, UN Office for Partnerships (Sept. 17, 2022), https://unpartnerships.un.org/news/2022/5-alarming-facts-about-climate-change [https://perma.cc/8UEG-U4XT].
[2] Charlotte Tyhurst, Are Intellectual Property Incentives Ill-Equipped to Respond to the Global Climate Change Fight?, McGill Business Law Platform (Apr. 10, 2023), https://www.mcgill.ca/business-law/article/are-intellectual-property-incentives-ill-equipped-respond-global-climate-change-fight [https://perma.cc/E3KD-AX2W].
[3] The Significance of Patents in Fostering Innovation and Progress, Barsik Law Office (Jan. 9, 2024), https://www.barsiklaw.com/resources/blog/the-significance-of-patents-in-fostering-innovation-and-progress/ [https://perma.cc/ZT35-FCHW].
[4] U.S. Patent & Trademark Off., U.S. Patent Activity Calendar Years 1790 to the Present, https://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.hdtm [https://perma.cc/6DC6-EXL6] (last visited Nov. 16, 2025).
[5] Bruce Berman, Study Finds that Americans Have the Wrong Impression About Intellectual Property, CloseUp Media (Oct. 25, 2022), https://ipcloseup.com/2022/10/25/study-finds-that-americans-have-the-wrong-impression-about-intellectual-property/ [https://perma.cc/P9PT-2UD2].
[6] U.S. Patent & Trademark Off., Patent Essentials, https://www.uspto.gov/patents/basics/essentials [https://perma.cc/2YBA-TUQ5] (last visited Nov. 16, 2025).
[7] Id.
[8] Id.
[9] Id.
[10] U.S. Patent & Trademark Off., Patent Process Overview, https://www.uspto.gov/patents/basics/patent-process-overview#step5 [https://perma.cc/5NNA-YSJ9] (last visited Nov. 16, 2025).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] U.S. Patent & Trademark Off., Patent FAQs, https://www.uspto.gov/help/patent-help#type-browse-faqs_1903 [https://perma.cc/3MSR-MLRZ] (last visited Nov. 16, 2025).
[20] U.S. Patent & Trademark Off., Patents for Humanity: Green Energy, https://www.uspto.gov/ip-policy/patents-humanity-green-energy [https://perma.cc/GJY5-DNBP] (last visited Nov. 16, 2025).
[21] Id.
[22] Id.
[23] U.S. Patent & Trademark Off., Patents for Humanity Announcements, https://www.uspto.gov/ip-policy/patent-policy/patents-humanity [https://perma.cc/FT94-KRE9] (last visited Nov. 16, 2025).
[24] Id.
[25] Id.
[26] U.S. Patent & Trademark Off., supra note 20.
[27] U.S. Patent & Trademark Off., Patents for Humanity Award FAQ, https://www.uspto.gov/sites/default/files/patents/init_events/patents_for_humanity/humanitarian_faq.pdf [https://perma.cc/PX8B-CG9E] (last visited Nov. 16, 2025).
[28] U.S. Patent & Trademark Off., 2024 Patents for Humanity: Green Energy Category Award Recipients, https://www.uspto.gov/ip-policy/patent-policy/patents-humanity/2024-recipients [https://perma.cc/Y8R9-XHSU] (last visited Nov. 16, 2025).
[29] Benjamin Desch, Fast-Tracks and Prizes: A Multi-Pronged Approach to Incentivizing Green Technology Innovation, 98 Wash. L. Rev. 625 (2023), https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5267&context=wlr [https://perma.cc/UE57-DTBT].
[30] U.S. Patent & Trademark Off., Accelerated Examination, https://www.uspto.gov/patents/initiatives/accelerated-examination [https://perma.cc/5H59-AFDL] (last visited Nov. 16, 2025); Desch, supra note 29.
[31] U.S. Patent & Trademark Off., Patents Pendency Data September 2025, https://www.uspto.gov/dashboard/patents/pendency.html [https://perma.cc/AV92-GZ56] (last visited Nov. 16, 2025).
[32] U.S. Patent & Trademark Off., supra note 31.
[33] U.S. Patent & Trademark Off., supra note 28.
[34] How Do Patents Act as an Incentive to Technological Innovation, Cypris (Apr. 28, 2023), https://www.cypris.ai/insights/how-do-patents-act-as-an-incentive-to-technological-innovation [https://perma.cc/28FC-2F75].
[35] Id.
[36] Craig Thompson, The USPTO Announces Patents for Humanity Program Newest Category “Green Energy”, Thompson Patent Law (Apr. 19, 2023), https://thompsonpatentlaw.com/the-uspto-announces-patents-for-humanity-program-newest-category-green-energy/ [https://perma.cc/8C6F-ZRXZ].
[37] U.S. Patent & Trademark Off., supra note 28.
[38] Bo J. Peng & Soma Saha, U.S. Patent and Trademark Office’s Green Energy Awards Seek Hydropower Innovations, Nat’l Hydropower Ass’n (Sept. 5, 2023), https://www.hydro.org/powerhouse/article/u-s-patent-and-trademark-offices-green-energy-awards-seek-hydropower-innovations/ [https://perma.cc/25G6-XB3G].
[39] Reto M. Hilty & Pedro Henrique D. Batista, Potential and Limits of Patent Law to Address Climate Change, 72 GRUR Int’l 821 (2023) (No. 9), https://academic.oup.com/grurint/article/72/9/821/7226090.
[40] Id.
[41] Id.
[42] Id.
[43] Tyhurst, supra note 2.
[44] Id.
[45] Hilty, supra note 39.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Vincenzo Iaia, Eco-Patents at the Crossroads Between Technological Neutrality and Environmental Sensitivity, 73 GRUR Int’l 308 (2024) (No. 4), https://academic.oup.com/grurint/article/73/4/308/7617581.
[53] Id.
[54] Id.
[55] Tyhurst, supra note 2.
[56] Id.
[57] Hilty, supra note 39.
[58] Faith Birol, Executive Director Speech at the Leaders Summit on Climate, International Energy Agency (Apr. 23, 2021), https://www.iea.org/news/executive-director-speech-at-the-leaders-summit-on-climate [https://perma.cc/9ZTQ-T65F].
The University of Cincinnati Intellectual Property and Computer Law Journal 
Leave a comment