Innovazione (in)sostenibile e incentivo brevettuale

Despite the common observation that granting a patent is an ethically neutral act, patent protection is aimed at promoting only those technological innovations that may be deemed to be desirable in ethical terms: in fact, both international and supranational legislation tendentially exclude the patentability of inventions the commercial exploitation of which would be contrary to ordre public or morality. In this regard, Article 27(2) TRIPs makes clear, in particular, that patentability may be excluded when the prevention of the commercial exploitation of an invention is necessary to “protect human, animal or plant life or health or to avoid serious prejudice to the environment”. In a way, therefore, one may conclude that patents are a tool to pro- mote a technological development which is also environmentally sustainable. The ex-ante evaluation that the commercial exploitation of an invention is contrary to ordre public because it implies the risk of a serious prejudice to the environment is a typical prognostic assessment based on a probabilistic judgement which a patent examiner is ill suited to make. And it is no surprise, in this regard, that – also considering that according to the EPO Guidelines “the threat to the environment [must] be sufficiently substantiated at the time the decision is taken” – the European Patent Office has never refused to grant a patent on environmental grounds. But there’s more than this. What could be reasonably perceived as a low risk before the patent is granted (and the commercial exploitation takes place), may become an effective harm afterwards. In other words, even if the assessment is correctly made, there is no doubt that, after a patent is granted, the commercial exploitation of an invention may be such that a serious prejudice to the environment actually occurs. Looking also at how the environmental impact of human activities is assessed, monitored and regulated in other fields of law, the paper examines if the substantial and procedural norms governing the granting and revocation of a patent are well suited to (i) encourage the patent holder to exploit the patented invention in an environmentally responsible way and, therefore, (ii) keep the economic benefits of the patent protection only available with respect to environmentally friendly technologies.