THE ENVIRONMENTAL AND PUBLIC HEALTH IMPACTS OF U.S. PATENT LAW: MAKING THE CASE FOR INCORPORATING A PRECAUTIONARY PRINCIPLE.

Decades often pass before scientists attain—and governments recognize—scientific certainty regarding the possible harmful effects of a newly invented technology or activity. Prior to 1970, governments were generally reluctant to regulate activities until harm was proven to a high degree of certainty and this led to significant damage to the environment and public health. In response, many nations incorporated some version of the precautionary principle—which asserts that mitigating measures either can or must be taken in the face of scientific uncertainty—into their domestic and international environmental laws and policies. A precautionary philosophy is also used by many nations in other areas of the law, including patent law, where statutes frequently exclude potentially harmful inventions from patentability. However, the United States consistently opposes the precautionary principle, and does not take a precautionary approach in either its environmental laws or its patent laws. This comment examines the environmental and public health consequences of U.S. patent law, and argues that incorporating a form of the precautionary principle would be a practical and effective means of mitigating the harm caused by advancing technology in the absence of such a principle. After examining the methods by which various nations exclude potentially harmful inventions from patentability, the author concludes that explicitly limiting the scope of patentable subject matter in U.S. patent law is an appropriate means for removing the patent incentive to develop and produce technologies that are known, or strongly suspected, to produce harmful impacts on the environment or public health. Furthermore, to ensure an objective scientific basis for excluding inventions from patentability, the U.S. Patent and Trademark Office should apply the new limits to patentable subject matter in consultation with other federal agencies, such as the Environmental Protection Agency, the Department of Health and Human Services, and their subagencies. [ABSTRACT FROM AUTHOR]