Patent Law, HIPPO, and the Biodiversity Crisis

Abstract

Planet earth is host to a dazzling variety of living organisms. This diversity of life, or – biodiversity, is vital to the survival and prosperity of humanity, supplying such vital amenities as food, clothing, shelter, natural biochemicals useful in medicine, industry, and agriculture, and even irreplaceable ecosystem services, such as clean air and water. Despite the prodigious amount of biodiversity on earth, human activities have been depleting it at an accelerating rate that has now reached the level of a mass extinction event. The five greatest threats to biodiversity can be summarized by the – HIPPO acronym: (1) Habitat loss, (2) Invasives, (3) Pollution, (4) Population, and (5) Overexploitation. Together, these five factors describe the phenomena largely responsible for the current mass extinction event, and patent law offers valuable assistance in combating each one. Though it cannot offer a complete solution to the biodiversity crisis, the patent system can offer powerful tools to help save biodiversity. On first inspection, patent law might appear an unlikely ally for conserving biodiversity for at least two reasons. First, beyond bioprospecting, patents would seem only tangentially relevant to biodiversity loss. Second, as a tool for promoting economic growth, the patent system might be viewed as contributing to biodiversity loss by those who assume that economic growth and environmental protection are mutually antithetical. However, patents can indeed benefit biodiversity. This article illustrates how patents can combat each of the major threats to biodiversity that constitute the HIPPO acronym. By creating an extinction bar to patentability, patents create incentives for bioprospectors, biopharmaceutical firms, and countries that host abundant biodiversity to prevent habitat destruction. Sovereign immunity provides the federal and state governments with the right to make use of patented inventions useful for countering invasives. Existing compulsory licensing schemes provide models for how patented pollution abatement technologies could be widely disseminated to combat pollution. The incentives created by the patent system can help to create more efficient new technologies capable of counteracting the damage inflicted on biodiversity by human population growth. Finally, the patent system has already proved itself adept at spurring the creation of ingenious inventions capable of alleviating overexploitation of biodiversity. Though far from a panacea, the patent system does have important roles to play in ameliorating the biodiversity crisis.