In the World of Green Patents, Does Chaos Equal Opportunity?

Posted on 11-14-2012 by
Tags: Real Law

Brought to you by the Real Law Editorial Team

Few industries present as much promise as green technology. And few industries are in such need of legal help. As a result, making green products or generating energy in more efficient and environmentally friendly ways is a mix of opportunity and confusion that any lawyer—particularly any patent lawyer—should know more about. One particularly interesting and relatively untapped corner of the green technology market is green buildings.

Every Building Is a Unique Snowflake

Celebrated architect Frank Lloyd Wright suggested that buildings should be “qualified by light, bred by native character to environment, married to the ground.” Each one should be adapted to its particular situation. In the drive to create buildings perfectly suited to their environments, architects and engineers are innovating like crazy, creating structures both beautiful and strange. More and more often, they are developing entirely new approaches to deal with the unique challenges that each project presents. For example, a few projects have already tried out concrete that eats pollution. There are roof shingles that double as solar panels. Many innovations are specific to the needs of one building, such as the adaptive shades that keep the Al Bahar Towers in Abu Dhabi cool. This emerging field of green building represents a potential bonanza of innovation—and patents.

The Golden Green Building Opportunity

Many kinds of lawyers already work in this field. Companies can hire them to identify and manage the risks inherent in green building. Lawyers can also help their clients navigate the complex layers of taxes and exemptions that apply to green buildings, and can consult on the potential benefits that green technologies can bring to a project’s efficiency and marketability. They can also look at a project and see what it might mean for potential patents. As construction attorney Christopher G. Hill describes it, “We’re using old materials in new ways and using new materials that hadn’t been used before in these types of projects.” Any typical green construction project may be a source of patentable ideas. The materials, protective coatings and designs can all lead to identifying new white spaces or green fields in the patent market.

Changing and Overlapping Laws and Standards

The rules and regulations governing green buildings today are a reason for hope, but also caution. In the relative absence of federal laws, companies that innovate face a complex and contradictory web of state and local laws. Even when there are federal standards, the results are not always clear. In fact, many independent standards bodies have moved in to fill this vacuum in green construction. These groups have been competing in interesting ways, even if the resulting standards haven’t necessarily been the safest or most consistent. If there isn’t even an agreement about how to manage a tree, how is it possible to follow standards in a multi-story urban complex?

Uneven Government Support

Despite their reluctance to regulate the industry, governments have still touted the value of green patents from the perspectives of efficiency, climate protection and national competitiveness. In the United States and Canada, they have looked to patenting procedures as a mechanism to promote and accelerate green innovation. Their efforts have included fast-track programs to expedite the examination and approval of green patents. “Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs,” said David Kappos, undersecretary of commerce for intellectual property and director of the USPTO. This sounds promising, yet the U.S. government allowed its fast-track patent program to expire recently. Despite this, the Canadian program still seems to be going strong, and there have been recent proposals to extend and harmonize these programs internationally.

Weighing Risks and Rewards

“There are challenges with each building,” says David Heckadon (the first U.S. lawyer who is both a registered patent attorney and a LEED Accredited Professional certified by the U.S. Green Building Council), “and with new green building legislation and regulations, state and municipal governments are effectively telling us that we literally have to invent our way out of the problems common to many existing buildings.” There are certainly risks in green technology, but it may be one of the most compelling global opportunities to create and own patents—anywhere.

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