Upcycling and Patent law: finding the contours for Social Innovation and sustainability

The move towards Social innovation is increasingly gaining strength within the UN sustainable development (SDG) goals for 2030. Upcycling forms a part of social innovation in reassessing existing innovation and transforming them value added invention making them socially useful and sustainable for the long run. In contrast to this patent laws protect inventions that are new, inventive and susceptible of industrial application. While this can also contribute to social innovation goals, the question is how far patent laws may enhance or hamper the use or exploitation of such upcycled inventions. In addition it also raises a related question as to whether patents as a system to enhance innovation could be used to incentivize upcycled inventions. The notion of upcycling is innately different from mere repair. Upcycling offers to revitalize old materials to find new ways of using it. This adds the value for the upcycled product. The foundation of patent law rests on the quid pro quo of disclosure of an invention in the interest of the society in exchange for the exclusivity offered by law. Patent law not only protects new inventions but also protects new uses of existing products. However, in many jurisdictions such as EU the new use is limited to known substance or composition. In contrast patent laws in other prominent jurisdictions like USA offers a better scope for considering any new and useful improvement to any existing inventions so long as they meet other stands of patentability. While there is no uniformity in approach to upcycled and transformative uses under patent law both in EU and USA, there is a growing jurisprudence on altered use of patented products that could have implications for value added transformation of existing inventions. This chapter aims to examine the foundation of upcyclying and its implications for patent law. In this effort part I of the chapter will examine the concept of Novelty as a requirement under patent law and how it impacts the approach to upcycling; Part II will examine the judicial discussions from a European and comparative perspective on the intersection of patent law and reconstructive use and finally Part III will identify the policy considerations for encouraging and incentivising upcycled inventions for global justice. In finding a role for intellectual property rights in sustainable development, this chapter will specifically consider the impact of patent law in supporting social innovation.