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Soaring Patent Activity in Biofuel Technology Part I

One indicator of innovation activity is volume of patent filings. According to a report by Thomson Reuters, "Innovation Hot Spots: IP Market Report" (June 2009), in the field of biofuels from algae, the number of patents issued in 2008 (1,878) increased 550% over 2003 (341). Through only the first quarter of 2009, 2,466 patents on algal biofuels have issued. Thomson Reuters reported that global patenting activity in algal biofuels ranked as one of the top three technologies based upon overall growth trend in the past 5 years.

Patent activity surrounding biofuels in general has experienced similar growth, with an increase of over 600% in the total of patents issued and applications published from 2002 (147) to 2007 (1,045). In 2007, the number of biofuel patents was more than the combined total of solar power (555) and wind power (282) patents published in that year.

The Obama administration has expressed a commitment to environmental issues in general, and biofuels in particular, by forming a new Biofuels Interagency Working Group, to be chaired by the Secretaries of Energy and Agriculture and the EPA administrator. USDA Secretary Tom Vilsack has been quoted as saying that more than $1.1 billion in Federal funds will be available to the biofuels sector.

Even prior to the Obama Administration, Congress passed the Energy Independence and Security Act of 2007, which required that 36 billion gallons of U.S. transportation fuel be cellulosic biofuel by 2022. The Act also required that, by 2022, 21 billion gallons of U.S. transportation fuel be derived from non-cornstarch sources.

What are biofuels/environmental problems/forms of protection/ and more…

Wikipedia defines a biofuel is a "solid, liquid or gaseous fuel obtained from relatively recently lifeless or living biological material and is different from fossil fuels, which are derived from long dead biological material."

First-generation biofuels are formed from sugar, starch, vegetable oil, or animal fat. The most common first-generation biofuel is ethanol developed from corn. A common criticism of this class of biofuels is that it diverts food from human or animal consumption. Additionally, corn ethanol does not offer substantial improvements in greenhouse gas emissions, overall environmental impact, or energy efficiency, and, moreover, is significantly more expensive per unit of energy than gasoline.

Second-generation biofuels use biomass from non-food sources. Waste plant matter such as wheat stalks, corn cobs, and wood are in this category. While the sources for second-generation biofuels are plentiful, cellulosic ethanol is difficult to produce cost effectively with currently known methods. Research is continuing on new ways of creating biofuel from waste plant matter.

Third-generation biofuels are made from algae, which can produce 30 times more energy per acre than land crops such as soybeans, and are easy to grow. One problem confronting this type of biofuel production is that the extraction of algal oil from the source algae is difficult and expensive. Another is that scale-up is challenging owing to environmental contaminants and predatory microbes that feed on algae.

What environmental problems are caused by generating biofuels?

At first glance, the use of biofuels might seem to have no downsides. After all, advanced second and third-generation biofuels come from materials that are not usable as food and in some cases need to be disposed of anyway.

However, biofuels do have an environmental footprint. First are “lifecycle emissions,” the emissions caused by feedstock production, refining, and use in motor vehicles, which have been mandated to be less than gasoline. That is, the effect of biofuels on the environment is not simply what happens when the fuels are used; one must also take into consideration how the biofuel is made, and how it gets into one’s gas tank.

The second footprint is caused by what is referred to as “indirect land-use changes,” a controversial topic among environmentalists. Land clearing to grow a biofuel crop can result in excess greenhouse gas emissions, thereby incurring a carbon debt that could take, according to some estimates, 100 years to repay by the replacement of gasoline with the biofuel.

What forms of protection are available to biofuel innovators?

Utility patent protection is available for new biofuels and innovative processes for producing them. For example, a novel algal oil extraction method could be patentable. New gene sequences, genetically modified organisms, and methods of modifying feedstock could also be patentable.

Plants used in the production of biofuels themselves have a variety of avenues of intellectual property protection available. Under U.S. patent law, asexually reproduced plants made, for example, via rooting of cuttings, and not by means of seeds, can be the subject of plant patent protection.

Utility patent protection, typically broader than that provided by a plant patent, is also available to all types of plants, seeds, methods of creating the plant line, and methods of using the plant. Corn varieties have been the subject of utility patents, for example.

Plants can further be protected under the Plant Variety Protection Act, certificates under which are granted by the Plant Variety Protection Office under the U.S. Department of Agriculture. Protection is available to sexually reproduced plants, that is, those reproduced via seeds that satisfy the criteria of being distinct, uniform and stable. The distinctness criterion is the most critical, wherein a plant variety must differ by one or more identifiable characteristics from other known varieties.


©Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2020. All rights reserved.National Law Review, Volume , Number 27



About this Author

Founded in Orlando, Florida in 1969, Lowndes, Drosdick, Doster, Kantor & Reed, P.A., is a multi-practice law firm with over 100 attorneys. We represent clients across a myriad of industries locally, nationally and beyond our borders, advising on almost every aspect of business: from high-stakes, high-profile litigation to labor and employment law; from tax issues to trademark and patent protection; from bankruptcy and creditors’ rights to wealth management; from complex commercial and residential real estate issues to healthcare; from capital raising and entity...