Article I, Section 8 of the Constitution provides Congress with the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”^[1] This endeavor has historically been carried out by the United States Patent and Trademark Office (USPTO), which issues patents granting inventors exclusive rights to their inventions.^[2] More specifically, a patent gives an inventor the authority to stop others from “making, using, offering for sale, or selling the invention in the United States…” for a twenty-year term.^[3] This exclusivity often facilitates innovation as it provides an incentive for investment into research and development. Inventors and investors, assured of a temporary monopoly, are more likely to commit significant resources with the expectation that they will recoup their investments and potentially earn a sizable return.^[4] The public, too, eventually receives a benefit from this system: once the patent term on an invention has expired, the innovation is freely accessible for all to use and market.^[5]

While there are clear advantages to protecting intellectual property interests with patents, there are also serious detriments, especially when it comes to environmentally sustainable technologies (ESTs). Patent protection does not equate to the dissemination and utilization of the actual technology, most notably due to the expectation of payment for licenses and/or royalties.^[6] Developing countries are affected by this issue the most, as they often lack the means necessary to purchase a license for a patented EST, as well as the resources to expand and maintain the technology and its development.^[7] This is a serious hindrance to the widespread adoption and development of critical technologies as new ESTs are typically improvements of existing, patented technologies and such enhancements “…require international dissemination and research.”^[8] Furthermore, there appears to be a difference in focus areas for patents between more and less developed countries. Over 60% of patents covering technology designed to mitigate or adapt to the effects of climate change are centered around energy and transport in wealthy countries, while adaptation-critical areas receive far less investment into R&D, likely because trade agreements often focus on innovations that serve the interests of wealthy countries more.^[9] Even if local communities manage to gain access to ESTs, there are often trade secret protections in place that allow patentholders to withhold instructions and insights into the invention’s know-how, which leaves recipients to rely on external expertise.^[10] These extensive protections severely limit a developing country’s ability to adapt an invention to their specific climate needs. It also prevents such countries from contributing their own developments to green technology. One recent study of the effects of patents on carbon emission mitigation technologies even showed that patents on low-carbon technologies drive up the cost of these products, causing developing countries to rely more on traditional technologies with higher carbon emissions.^[11] Cost-based barriers to access thus not only inhibit the diffusion of green technologies but also undermine broader efforts to mitigate climate change.

To better protect the original spirit and goal of the patent system surrounding the progression of science and innovation, Congress should consider implementing alternative frameworks of intellectual property management that have been proposed in other countries, such as patent pooling, royalty-free compulsory licensing of ESTs, or potentially excluding ESTs from patenting altogether.^[12] Some researchers have also suggested the creation of a prize system that compensates inventors based on development costs and research risks.^[13] Such approaches could preserve incentives for innovation while significantly reducing the economic barriers that impede the diffusion of climate-critical technologies. It is worth noting that the USPTO does run a prize program, called Patents for Humanity, to recognize “innovators who use game-changing technology to meet global humanitarian challenges.”^[14] The program also has a specific category dedicated to green energy technologies for inventions that specifically address climate change issues via green energy sources.^[15] The program, however, is run biennially and does not include a monetary award but boasts being a source of significant business incentives and public recognition.^[16] To truly be a functional alternative to the traditional patent system, the USPTO and/or Congress should consider including a monetary award with the program’s recognition and perhaps issuing awards more frequently. Without such reforms, the patent system risks frustrating, rather than fulfilling, its foundational goal of advancing innovation in service of the public good, particularly in the context of an escalating global climate crisis.

 

 

^[1] U.S. Const. art. I, § 8, cl. 8.

^[2] E.g., Patent Essentials, USPTO (Apr. 27, 2023), https://www.uspto.gov/patents/basics/essentials

^[3] 35 U.S.C. § 154.

^[4] See Innovation and Intellectual Property, World Intell. Prop. Org., https://www.wipo.int/en/web/ipday/2017/innovation_and_intellectual_property (last visited Jan. 19, 2026).

^[5] Id.

^[6] Charlotte Tyhurst, Are Intellectual Property Incentives Ill-Equipped to Respond to the Global Climate Change Fight?, McGill Bus. L. Platform (Apr. 10, 2023), https://www.mcgill.ca/business-law/article/are-intellectual-property-incentives-ill-equipped-respond-global-climate-change-fight.

^[7] Id.

^[8] K. Raiser, H. Naims & T. Bruhn, Corporatization of the Climate? Innovation, Intellectual Property Rights, and Patents for Climate Change Mitigation, 27 Energy Rsch. & Soc. Sci. 1, 4 (2017).

^[9] Pratap Devarapalli, Patent or Planet? Rethinking IP for Just Climate Tech Transition in the Global South, 25 Glob. Env’t Pol. 128, 133 (2025).

^[10] Id. at 135.

^[11] Pengfei Cheng, Yuhao Wang & Mengzhen Wang, Does Intellectual Property Rights Protection Help Reduce Carbon Emissions?, 11 Humanities and Soc. Sci. Commc’ns 1, 7 (2024).

^[12] Chris Helmers & Bronwyn Hall, The Role of Patent Protection in (Clean/Green) Technology Transfer, VoxEU: Columns (Oct. 24, 2010), https://cepr.org/voxeu/columns/role-patent-protection-cleangreen-technology-transfer.

^[13] Mahatab Uddin, Patent as a Tool for Facilitating Innovation: Lessons from Green Technology 1 (Ctr. for Int’l. Governance Innovation, Digital Policy Working Paper, 2024), https://www.cigionline.org/static/documents/DPH-Paper-Uddin.pdf.

^[14] Id., Patents for Humanity, USPTO (Oct. 29, 2019), https://www.uspto.gov/ip-policy/patent-policy/patents-humanity.

^[15] Patents for Humanity: Green Energy, USPTO (Mar. 6, 2023), https://www.uspto.gov/ip-policy/patents-humanity-green-energy.

^[16] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Patents for Humanity Program and Trademarks for Humanity Program, 90 Fed. Reg. 15454 (Apr. 11, 2025), https://www.federalregister.gov/documents/2025/04/11/2025-06166/agency-information-collection-activities-submission-to-the-office-of-management-and-budget-for (last visited Jan. 23, 2026).