- Seth Jaffe, Manufacturing a System of Remanufacturing: How the Patent Office Can Facilitate Environmentally Conscious Product Design, 48 Hous. L. Rev. 919 (2012). (Westlaw)
Environmental concerns pose real problems for the manufacturing industry. Not only do producers face constrained access to natural resources, but they are also under pressure from environmental action groups to reform wasteful processes. To remain competitive, manufacturers can either fashion cheaper, more disposable products or they can design products to promote repair, remanufacturing, and repurposing. But the latter solution both increases manufacturing costs and diverts potential revenue to third party remanufacturing companies. Without means of recovering these costs, manufacturers will be dissuaded from employing environmentally conscious solutions.
The patent system allows inventors to internalize research and development costs without worrying about unencumbered competition in the market for the patented item. By doing so, the patent system provides incentives to invent, disclose, and innovate. It can also provide an incentive to design for remanufacturing. Implementation of an ancillary system for tracking claims of environmental improvement within the overall body of an existing patent allows the Patent Office to offer a simple means for recovering front-end investments in environmentally conscious manufacturing. Quantitative methods already exist to classify these environmental design improvements. Patent examiners would only need to verify the improvement level of a given design process against these methods in allowing the claims. In an issued patent, remanufacturing claims would offer a defense to the doctrine of exhaustion, allowing a company to retain limited use rights in the refurbishment of its product.