Best available technology laws attempt to force the utilization of the most efficient and environmentally friendly technology that is economically achievable for a regulated actor to implement. Sustainability and numerous environmental benefits come from these laws. Although simple to create, the implementation of a best available technology law is difficult and the sought effects of it are unrealized due to vagueness, reliance on the regulated to change, and lack of specifics to ensure true compliance. Patent law adds to this problem due to the protections available to patent holders that grants them the power to exclude others from utilizing their intellectual property. Thus, if the best available technology is protected by a patent, the holder controls its use and anyone seeking to exploit the technology must obtain permission. Patent rights are normally absolute, allowing the holder full control over their intellectual property. A recent ruling in the Supreme Court, however, allows for a once protected patent to be utilized in certain scenarios by non-holders, breaking the total control and freeing the technology. This ruling can now allow for future best available technology laws that can force the use of the best available technology without being hindered by patent protections in all cases.
Antonio G. Fraone, Shucking a Patent: How a Simple Best Available Technology Law Can Break the Shell of Patent Protections, 59 B.C.L. Rev. 1049 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss3/6