The Untapped Potential of Patent Law in Deterring Environmentally Unsustainable Innovation

Abstract Despite the common belief that the granting of a patent is a neutral act, patent protection is intended to encourage technological innovations that are acceptable from an ethical point of view: in fact, both international and supranational legislation exclude from patentability inventions whose commercial exploitation would be contrary to ordre public, a notion that certainly encompasses also the prevention of serious damage to the environment. However, the provisions excluding the patentability of inventions whose commercial exploitation is contrary to ordre public (and in particular to environmental ordre public) have rarely been applied in Europe. After outlining the reasons why ordre public exceptions have had very limited application in Europe so far, the paper offers a new perspective through which such exceptions should be interpreted and suggests how patent offices can play a new and more decisive role in promoting environmentally sustainable innovation.