Patenting the Sun? Possible Exclusion of SRM Technologies from Patenting and Risk Regulation

Abstract In an interview with Jonas Salk, the inventor of the first polio vaccine, when asked whether he owned the patents for the vaccine, Salk replied with a rhetorical question: “Could you patent the sun?” Decades later, patents about the Sun indeed emerged as solar radiation modification (SRM) technologies advanced. The current international legal system does not preclude the patenting of SRM technologies, primarily on the basis of the principle of technology neutrality in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Since SRM has inherent dual effects – its potential benefits in helping reduce climate risk coexist with significant potential risks, including environmental harm and governance challenges. Risk regulation may require the exclusion of patents for certain SRM technologies. This article examines the potential grounds and current proposals to prohibit patents on certain SRM technologies, and the challenges these proposals may face under the principle of technology neutrality under the TRIPS Agreement. It then seeks to overcome the challenges by proposing to incorporate ex ante risk considerations into the patent system, which could be best implemented through a sui generis regulatory framework for SRM regulation that includes a prohibition on SRM patents.