Shucking a Patent: How a Simple Best Available Technology Law Can Break the Shell of Patent Protections
Shucking a Patent: How a Simple Best Available Technolog y Law Can Break the Shell of Patent Protections
Antonio G. Fraone 0 1 2
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Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Recommended Citation 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 (), http://lawdigitalcommons.bc.edu/bclr/vol59/iss3/6
Abstract: Best available technology laws attempt to force the utilization of the
most efficient and environmentally friendly technology that iesconomically
achievable for a regulated actor to implement. Sustainability and numerous
environmental benefits come from these laws. Although simple to create, the impl
ementation 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 ot
hers from utilizing their intellectual property. Thus, if the best available technol
ogy is protected by a patent, the holder controls its use and anyone seeking to e
xploit the technology must obtain permission. Patent rights are normally absolute,
allowing the holder full control over their intellectual property.Arecent 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 tec
hnology. 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 p
atent protections in all cases.
Archaeological evidence indicates that early man engaged in shellfishing
over 150,000 years ago.1 In the United States, Native Americans harvested
shellfish by hand and later utilized rakes and canoes to access deeper waters. 2
The amount of shellfish remains, discovered in previously inhabited precolon
ial areas throughout New England, indicates the importance of shellfishing to
the indigenous people and the extent to which it occurred. 3 Since the arrival of
1 U.S. DEP’T OF COMMERCE, NAT’L OCEANIC & ATMOSPHERIC ADMIN., NMFS-NE-220,
REVIEW OF THE ECOLOGICAL EFFECTSOF DREDGINGINTHE CULTIVATIONAND HARVESTOF
MOLLUSCAN SHELLFISH 3 (Dec. 2011) [hereinafter NAT’L OCEANIC & ATMOSPHERIC ADMIN.]; Torben C.
Rick & Jon M. Erlandson, Coastal Exploitation, 325 SCI. 952, 952 (Aug. 21, 2009).
2 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 3; Clyde L. MacKenzie, Jr. et al.,
Quahogs in Eastern North America: Part 1, Biology, Ecology, and Historical Uses , 64 MARINE
FISHERIES REV. 1, 11 (2002); Rick & Erlandson, supra note 1, at 952.
3 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 3; MacKenzie et al., supra note 2, at
Europeans, harvesting has modernized and increased, starting with hand ope
rated specialized rakes and tongs and developing to modern day dredges.4
Dredges are large metal devices that function as seafloor rakes and are
towed by fishing vessels to harvest shellfish. 5 Dredges vary in design and size
depending on the species of shellfish being harvested and the sediment within
the area. 6 These devices are attached to the end of a towing line and scrape the
ocean floor to collect the target species.7 Dredges can be mechanical or
hydraulic, with the latter utilizing pressurized water to enhance the performance
of the device.8 Commercial fishermen utilize dredging because it is the most
effective way to harvest shellfish from the ocean floor. 9 Current dredges have
the ability to collect over ninety percent of the shellfish from the area it covers,
allowing fishermen to obtain large catches tosustain industry and market
Dredging, however, is like a tornado passing through a town, causing
significant environmental harm to the organisms within its path and the ecology
of areas where it occurs. 11 Mortality among target shellfish can reach as high
as ninety percent or more.12 There is also the potential for substantial shell
breakage among those harvested or subjected to the device. 13 Moreover,
4 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 3.
5 See 322 MASS. CODE REGS. 6.08 (2018) (providing a definition).
6 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4.
8 Id. at 5; C.M. HAWKINS, POTENTIAL IMPACTS OF INSHORE HYDRAULIC CLAM DREDGES ON
INSHORE AREA HABITAT WITH FOCUS ON LOBSTER HABITAT, FISHERIES AND OCEANS CANADA 1
[https://perma.cc/RW4S-8WL3]. Average hydraulic dredges weigh hundreds of pounds and measure
over two feet in width. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 5.
9 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4 –6 (indicating that dredging is
highly efficient and the primary means by which commercial fisherman harvest shellfish).
10 Thomas L. Meyer et al., The Performance and Environmental Effects of a Hydraulic Clam
Dredge, MARINE FISHERIES REV., Sept. 1981, at 14, 18; see NAT’L OCEANIC & ATMOSPHERIC
ADMIN., supra note 1, at 4 –6 (discussing current dredge performance); Thomas Lampert, Note, Stopping
Illegal Fishing and Seafood Fraudsters: The Presidential Task Force’ s Plan on Tackling IUU Fishing
and Seafood Fraud, 58 B.C. L. REV. 1629, 1630 (2017) (discussing the high value of the seafood
industry in the United States); Seafood &Human Health, NAT’L OCEANIC & ATMOSPHERIC ADMIN.
(Apr. 3, 2017), http://www.nmfs.noaa.gov/ aquaculture/faqs/faq_seafood_health.html [ https://perma.
cc/H4K2-VS2H] (stating that each American consumes about 15.8 pounds of seafood and shellfish
per year, which is half of the USDA’s recommended amount).
11 See Ronald Goldberg et al., Effects of Hydraulic Shellfish Dredging on the Ecology of a Cult
ivated Clam Bed, 3 AQUACULTURE ENV’T INTERACTIONS 11, 11 (2012) (discussing the shellfish
mortality rates resulting from dredging); Meyer et al., supra note 10, at 19–20 (same).
12 Meyer et al., supra note 10, at 19–20.
13 JEAN LAMBERT & PRICE GOUDREAU, PERFORMANCE OF THE NEW ENGLAND HYDRAULIC
DREDGE FOR THE HARVEST OF STIMPSON’S SURF CLAMS, DEP’T OF FISHERIESAND OCEANS
CANADA 5 (1996), http://www.dfo-mpo.gc.ca/Library/197697.pdf. [https://perma.cc/4YWL-QA86].
Substantial shell breakage from dredging is important because of the environmental waste it causes and
for the impact it has on the ecology of an area. See id. at 4–5 (discussing the shell breakage and eff
iing negatively impacts the ecology of an area physically, biologically, and
chemically.14 As the device passes through an area, the ocean floor is altered
leaving behind a trench and eliminating any natural structures or features.
Any present marine life, flora or fauna, is subjected to the same destruction
directly and indirectly from post dredging effects.16 The effects also alter ox
ygen levels, sediment nutrient quality, and other aspects of the natural habitat. 17
The Commonwealth of Massachusetts regulates dredging in its waters in
an attempt to mitigate the impact this shellfishing method has on th e
environment while still allowing the industry to operate. 18 These restrictions, however,
do not completely prevent the harm posed by dredging and no alternative
device exists that can match the yield of current devices without the negative
environmental impacts. 19 An environmentally optimal device would be beneficial
to all parties involved and therefore creating it should be an immediate goal. 20
This coincides with the goals of sustainability which strives to preserve
natural resources.21 Sustainability principles aim to establish, monitor, and
maintain conditions where humans and nature coexist harmoniously and with
mutual benefit.22 By working to achieve this goal, nature and everything it
provides will be available to the present population and future generations.23
If a more sustainable dredging device were created, it would likely be p
atented and, therefore, would prevent anyone from freely utilizing the device
ciencies of dredges); infra notes 79–112 (discussing the physical and ecological effects of dredging on
shellfish and their habitats).
14 Goldberg et al., supra note 11, at 12.
15 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–13. Dredges are destructive to
the ocean floor. Id. As the device passes through an area, it destroys any natural sediment structures or
formations on the ocean floor, unbeds any flora rooted in its path, and leaves a deep track mark behind
that remains, further affecting the area. Id.; infra notes 93–112 and accompanying text.
16 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 17–18, 26; infra notes 93–112 and
accompanying text (discussing the impact of dredging on flora and fauna).
17 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–13, 17– 18, 24; infra notes 93–
112 and accompanying text (discussing the chemical and biological effects of dredging).
18 See DIV. OF MARINE FISHERIES, MARINE FISHERIES REGULATION SUMMARIES (2017), http://
(summarizing the Division of Marine Fisheries regulations that govern the shellfish dredging industry).
19 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4–7 (discussing the technologies
currently being used in the shellfish dredging industry); DIV. OF MARINE FISHERIES, supra note 18;
Meyer et al., supra note 10, at 19–20 (discussing the high shellfish mortality rates resulting from
20 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4–6 (discussing several
negative environmental harms resulting from the dredging process).
21 See Learn About Sustainability, ENVTL. PROT. AGENCY (Oct. 18, 2016), https://www. epa.
gov/sustainability/learn-about-sustainability#what [https://perma.cc/5A4Y-UKVP] (discussing
sustainability, its principles and goals, and its importance).
22 Id. Sustainability is a basic concept grounded on the simple principle that nature provides ever
ything that is needed to survive. Id.
even if it is environmentally optimal. 24 Apatent provides its holder with a great
deal of property rights and protections. 25 The most significant of which is the
right to exclude others from using what is set forth in the patent. 26 Should
anyone violate this right, the patent holder can bring an infringement suit with the
ability to obtain damages and an injunction to cease all unpermitted us2e7.
Thus, anyone who wishes to utilize the patent must receive permission or wait
until the patent expires.28
There are no state or federal patent laws that can force a patent holder to
utilize their intellectual prop erty.29 In the absence of any such law, local legi
slation in the form of a best available technology law could be enacted to force
the use of an environmentally optimal patent. 30 Best available technology laws
set a standard for an industry to utilize the best technology within their oper
ations that is economically achievable. 31 If certain conditions are met, the env
ironmentally optimal patent could be deemed the best technology and become
the industry standard.32
This Note argues that unutilized environmentall y optimal patents can be
pushed into use by inducing or indirectly forcing the granting of licenses
through the enactment of a best available technology law3.3 Part I sets forth
and explains the current laws and regulations that govern shellfishing in the
Commonwealth of Massachusetts. 34 Part II details the environmental impact of
24 See 35 U.S.C. § 154(a)(1) (2012); infra notes 125–159 and accompanying text (analyzing
patent laws and policy).
25 35 U.S.C. § 154(a)(1); see id. § 261 (stating the ownership and assignment rights of a patent
26 See id. § 154(a)(1) (setting forth a patent holder’s right to exclude others from utilizing their
27 Id. §§ 154(a)(1), 271, 281, 283–284.
28 See id. § 261 (stating that holders may assign property rights to the patent); Types of Patents,
U.S. PAT. & TRADEMARK OFF. (Mar. 31, 2016), https: //www.uspto.gov/web/offices/ac/ido/oeip/taf/
patdesc.htm [https://perma.cc/3AEE-MYQS] (explaining patent durations by type).
29 See U.S. CONST. art. I, § 8, cl. 8 (reserving patent law for Congress). See generally 35 U.S.C.
§§ 1–390 (omitting any forcing provisions in the federal regulation of patents).
30 See 33 U.S.C. § 1311(b)(2) (2012) (utilizing a best available technology standard to set
performance requirements); Learn About Effluent Guidelines , ENVTL. PROT. AGENCY (Dec. 30, 2016),
https://www.epa.gov/eg/learn-about-effluent-guidelines [https://perma.cc/Q6FF-8CV2] (summarizing
best available technology laws); infra notes 240–266 and accompanying text (discussing best avail
able technology laws).
31 See 33 U.S.C. § 1311(b)(2) (utilizing a best available technology standard to set performance
requirements); Learn About Effluent Guidelines , supra note 30 (describing the effect of best available
32 See 33 U.S.C. § 1311(b)(2) (utilizing a best available technology standard); Learn About Effl
uent Guidelines, supra note 30 (describing the factors considered in determining what is the best avai
lable technology for the standard); infra notes 240–266 and accompanying text (discussing best avail
able technology laws).
33 See infra notes 267–352 and accompanying text.
34 See infra notes 38–74 and accompanying text.
current dredging technology and the value it provides the industry.35 Part III
provides legal background to the law surrounding this scenario and focuses on
patent, antitrust, monopo ly, and best available technology laws. 36 Finally, Part
IV introduces an unused hypothetical environmentally optimal patent and di
scusses the enactment of a best available technology law to achieve its use.37
I. BACKGROUND OF MASSACHUSETTS LAW GOVERNING
The Commonwealth of Massachusetts and its agencies perform a great
number of duties to protect all of the wildlife contained within the state ’s
border.38 Section A discusses the numerous laws and regulations that
shellfisherman need to follow to ensure their day to day operations are compliant. 39
Section B covers additional laws specifically targeting dredges and dredging that
also impact operations.40
A. Massachusetts Fish and Game Laws
The Massachusetts Department of Fish and Game ( “DFG”) is an agency
under Massachusetts Executive Office of Energy and Environmental Affairs. 41
The DFG is responsible for the preservation and protection of the
Commonwealth’s marine and freshwater fisheries, wildlife species, plants, natural
communities, and habitats.42 The DFG also works to uphold and enforce
Amendment 49 of the Massachusetts Constitution, which sets out the rights of
the people to the environment and natural resources. 43 The agency is divided
into four divisions, including the Division of Mrinae Fisheries (“DMF”),
which is responsible for the conservation of marine fisheries resources
throughout the Commonwealth. 44 The DMF controls and manages recreational
35 See infra notes 75–119 and accompanying text.
36 See infra notes 120–266 and accompanying text.
37 See infra notes 267–352 and accompanying text.
38 See infra notes 41–74 and accompanying text.
39 See infra notes 41–57 and accompanying text.
40 See infra notes 58–74 and accompanying text.
41 About the Department of Fish &Game , ENERGY AND ENVTL. AFFAIRS (2018), http://www.
43 MASS. CONST. amend. 49 (“The people shall have the right to clean air and water, freedom
from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their
environment; and the protection of the people in their right to the conservation, development and
utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared
to be a public purpose.”); About the Department of Fish & Game, supra note 41.
44 About the Department of Fish & Game, supra note 41. The other three divisions are the
Division of Ecological Restoration, the Office of Fishing and Boating Access, and the Division of
Fisheries and Wildlife. Id. The Division of Ecological Restoration protects and restores rivers, wetlands, and
watersheds throughout the Commonwealth for the benefit of the people and all wildlife. Id. The Office
and commercial harvesting of fish, shellfish, and crustaceans. 45 Within its role,
the DMF strives to promote sustainability while balancing Massachusetts’
expansive fishing industry.46
The DMF sets out rules and regulations that govern how commercial
fisherman may harvest shellfish and other aquatic organisms. 47 In order to fish
Massachusetts’ waters, each commercial fisherman must obtain a license or
permit from the DMF.48 The DMF also determines annual open seasons for
each species, providing a timeframe for lawful harvesting. 49 Additionally, the
rules set the possession limits that range from da ily allotted amounts and hou
rly limits, to total pounds per season. 50 Further, there are also size requirements
for each species, setting a minimum length, width, combination of
measureof Fishing and Boating Access provides and maintains boat and canoe access sites to the various water
sources of the Commonwealth and works jointly with the Department of Fish & Game to obtain
easements, design access points, and facilitate operations. Id. The Division of Fisheries and Wildlife
(“DFW”) is responsible for the conservation, restoration, protection, and management of fish and
wildlife resources throughout the state. Id. The DFW’s effort balances the needs of the people and
nature to protect the resources under its protection and ensure their availability for all future gener
46 Id.; Division of Marine Fisheries Mission Statement , ENERGY AND ENVTL. AFFAIRS (2017),
(“Mission Statement: To manage the Commonwealth’s living marine resources in balance with the
environment resulting in sustainable fisheries and contributions to our economy, stable availability of
diverse, healthy seafood and enriched opportunities that support our coastal culture.”).
47 MASS. GEN. LAWS ch. 130, § 1A (2018).
48 Id. § 1 (defining “fish” as any wildlife that inhabits the ocean or connected waters and includes,
all crustacean or marine fish, that may swim or move freely, as well as any shellfish or sea worms); id.
§ 80 (stating that no person can fish or take fish for commercial purposes from any waters in the
Commonwealth unless they are issued a state commercial fishing permit individually or upon a vessel
that has been issued a permit); 322 MASS. CODE REGS. 7.01(2) (2018) (detailing commercial fishing
permits and required information); id. 7.01(4) (detailing additional commercial fishing permit
erquirements, special permit requirements, and endorsement requirements if applicable). Most are
obtained through an application process from the Commonwealth of Massachusetts. 322 MASS. CODE
REGS. 7.01(5) (setting out the application process requirements); Massachusetts Commercial Fis
hing Permits, ENERGY AND ENVTL. AFFAIRS (2017), http://www.mass.gov/eea/agencies/dfg/dmf/
commercial-fishing/fishing-permits/ [https://perma.cc/U47N-JBZ4] (detailing Massachusetts
commercial fishing permit and endorsement types).
49 See 322 MASS. CODE REGS. 4.01–.15 (Detailing specific restrictions for the annual season,
area restrictions, timeframe restrictions, and rules for specific areas); Commercial Regulations Tables ,
ENERGY AND ENVTL. AFFAIRS (2017),
http://www.mass.gov/eea/agencies/dfg/dmf/laws-andregulations/commercial-regulations/ [https://perma.cc/CGA9-H3YX] (detailing the timeframe
for lawful harvesting and seasons).
50 See 322 MASS. CODE REGS. 6.05(3) (limiting Atlantic Sea Scallop fisherman to 200 pounds of
shucked meat or 2,000 pounds in shell at any time); id. 6.08(3)(a) (limiting Surf Clam harvesting to
200 bushels per twenty-four hours and 400 bushels per forty-eight hours); id. 6.08(4)(a) (limiting
Ocean Quahog harvesting to 836 bushels per twenty- four hours); id. 6.36(3) (limiting Quahog h
arvesting to forty bushels per twenty-four hours).
ments, or other specific characteristics. 51 Municipalities may also add in
additional requirements that apply in their local waters. 52 Additionally, local
governing bodies control where commercial fishing may occur and have the ability
to designate certain waters as conservation, protected, and contaminated ar
eas.53 Multiple factors influence what areas are open to fishermen. 54
Sustainability and public health serve as the basis for most regulations. 55 In general, the
DMF does a great deal to protect its wildlife by issuing a wide variety of co
ntrols and regulations to ensure sustainability, healthy populations, and the su
rvival of local species. 56 Fishermen must comply with each and every
applicable regulation or face consequences that can include fines, permit revocation,
vessel impoundment, criminal charges, and other costly punishments.57
51 See id. 6.05(2) (requiring Atlantic Sea Scallops to be at a minimum 3.5 inches in diameter from
the hinge to the outer edge); id. 6.08(3)(c) (requiring ninety- five percent of harvested Surf Clams per
batch to be larger than five inches in the longest shell diameter); id. 6.11(2) (requiring harvested Bay
Scallops to have a well -defined raised annual growth line that measures at least ten millimeters from
the hinge of the shell); id. 6.20(2)(a) (requiring that Quahogs be larger than one inch in shell thickness
or hinge width); id. 6.20(2)(b) (requiring that Soft Shelled Clams be larger than two inches in area of
longest diameter); id. 6.20(2)(c) (requiring that Oysters be larger than three inches in area of longest
52 See MASS. GEN. LAWS ch. 130, § 54 (stating that municipalities may create, issue, and enforce
local restrictions on shellfish harvesting in waters under their control that add or expand on state laws
and regulations); id. § 56 (stating that state agencies and the agencies of municipalities shall work
jointly and cooperatively to enforce and uphold all laws and regulations governing waters controlled
by more than one governmental body).
53 Id. §§ 54, 56; 322 MASS. CODE REGS. 4.01–.15 (detailing several restrictions for specific
areas and locations).
54 See MASS. GEN. LAWS ch. 130, § 20 (stating that the DMF shall assist and cooperate with
municipalities to increase the supply and population of shellfish which includes the extermination or
incapacitation of causes of harm within the municipality’s jurisdiction); 322 MASS. CODE REGS.
16.04 (stating that efforts to protect and increase shellfish populations, such as restrictions on
commercial and recreational harvesting, are a cooperative effort between the Commonwealth and
municipalities which is guided by many factors that include public health and shellfish sustainability).
55 See, e.g., MASS. GEN. LAWS ch. 130, § 20 (focusing on sustainability); 322 MASS. CODE
REGS. 4.01–.15 (detailing several restrictions for public health purposes); id. 16.04 (supporting
sustainability and public health).
56 See 322 MASS. CODE REGS. 1.01–16.06 (setting forth DMF regulations).
57 MASS. GEN. LAWS ch. 130, § 9 (stating that any law enforcement agency with the jurisdiction
to enforce any law or regulation related to marine fisheries of any kind may conduct warrantless
searches and arrests in their enforcement efforts and may seize any container, storage device, motor
vehicle, boat, vessel, or fish related to a violation); id. § 13 (stating that law enforcement may demand
for the ability to inspect any fish in the possession of any person believed to have violated any marine
fisheries law, and may arrest or fine that person for refusal or violation);id. § 17 (stating the wide
range of powers provided to the director of marine fisheries to enforce and create regulations);id.
§ 67 (stating that the taking of shellfish from licensed grounds or beds without consent may lead to
fines and imprisonment); id. § 68 (stating that digging, taking, or carrying away shellfish from waters
at night may lead to fines and imprisonment); id. § 72 (stating that violating a catch limit may lead to
a fine and imprisonment); id. § 75 (stating that shellfishing in restricted areas without permission may
lead to fines and imprisonment).
B. Dredging Laws and Regulations
The Division of Marine Fisheries also regulates dredges which are used
by commercial fisherman to harvest various kinds of shellfish. 58 Dredges are
large metal devices which function as seafloor rakes that are towed by fishing
vessels and use blades, knives, or teeth to dig into the ocean floor to harvest
shellfish.59 Mechanical and hydraulic versions exist, with the latter utilizing
pressurized water to enhance the performance of the device.60 Starting in the
1950s, hydraulic dredges became the primary devices used in the cultivation of
The Division of Marine Fisheries regulates commercial dredging by
requiring permits that come with restrictions, reporting requirements, gear
erstrictions, and other species -specific rules. 62 Specific permit types are
differentiated by vessel size, with larger vessels paying more to secure their right to
operate the dredge. 63 Permit cost is also affected by the applicant ’s residence,
with non-residents paying double for the samelicense.64 Before a permit is
valid, an applicant may also need to obtain certain endorsements and sign -offs
from local municipalities and other agencies. 65 Permitted commercial
fisherman must also abide by the reporting rules and regulations of Massachusetts.66
All shellfish must be tagged at the time of harvest, and the tag must contain the
permit holder’s name and permit number, date and time of harvest, shellfish
type and quantity, and state of harvest and growing area information.67
58 322 MASS. CODE REGS. 4.06, 4.10, 6.08, 6.36.
59 See id. 6.08 (defining “Dredge” and “Dredging”). Dredges can vary in design and size
depending on the type of shellfish being harvested. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1,
60 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 5. Mechanical dredges are attached
to the end of a line and scrape the ocean floor to collect target species in a chain or mesh bag. Id. at 4.
Hydraulic dredges function in the same way, but highly pressurized water is used to blast the ocean
floor to loosen the sediment and the species within, making it easier for the dredge to collect its target
as it is towed. Id. at 5. There are various types of dredges used throughout the United States which
include hydraulic escalators, shallow water clam kicking, and hydraulic suction dredges. Id. at 4.
61 Id. at 5. Average hydraulic dredges weigh approximately 4 50 to 900 pounds and measure 24 to
40 inches in width. Id.
62 322 MASS. CODE REGS. 4.06, 4.10, 6.08, 6.36.
63 Application for Commercial Saltwater Fishing Permits,DIV. OF MARINE FISHERIES,
COMMONWEALTH OF MASS. (2017), http://www.mass.gov/eea/docs/dfg/dmf/commercialfishing/
65 MASS. GEN. LAWS ch. 130, §§ 54, 56; 322 MASS. CODE REGS. 10.10; Application for
Commercial Saltwater Fishing Permits, supra note 63.
66 MASS. GEN. LAWS ch. 130, § 21 (making it illegal to falsify or underreport required
information pertaining to harvesting yields).
67 322 MASS. CODE REGS. 16.03.
Dredges are also regulated by the type of species being harvested. 68
Depending on the type of shellfish, a specific fencing size will be required. 69
Further, some specie specific regulations dictate the permitted size and width of
the mechanism and limit the number of dredges that may be used at one time
per vessel. 70 The hydraulic pump, which blasts the pressurized water, is reg
ulated as well. 71 Specific firing distances between the dredge and the pump are
set by specie along with its maximum power in gallons per minut7e2.This
spacing and pressure control determines the force that is exerted on the shel
lfish and ocean floor. 73 Controlling the amount of force exerted on the shellfish
protects shellfish from being severely injured or fatally damaged.74
II. ENVIRONMENTAL IMPACT OF SHELLFISH DREDGING,
VALUE OF THE PRACTICE, AND THE NEED FOR A NEW
ENVIRONMENTALLY OPTIMAL DEVICE
Shellfish dredging negatively impacts a harvested area tremendously and
affects the local environment as well. 75 Section A discusses how shellfish are
directly affected, details the extremely high mortality and damage rates caused
by dredging, and explains the increased exposure to other harms that are exa
cerbated by the passing of a dredge. 76 Section B covers the harm caused to the
68 Id. 4.10, 6.08, 6.36.
69 Id. 4.10(3)(a) (requiring a specific fencing size for a dredge). Fencing here is referring to the
walls or outer area of the cage or collection bag of a dredge where lawfully harvestable shellfish are
held. See id. (describing required “ring” sizes for a dredge); Elizabeth Brown,Fishing Gear 101:
Dredges—The Bottom Scrappers, SAFINA CTR. (June 6, 2016), http/:/safinacenter.org/2015/05/
fishing-gear-101-dredges-the-bottom-scrapers/ [https://perma.cc/AB8F-L8M2] (describing dredges
and how they function). These holding mechanisms are lined with fencing of a certain size that allows
lawfully sized targeted shellfish to remain while all others filter and fall through to remain in the
ocean. See 322 MASS. CODE REGS. 4.10(3), 6.08 (detailing dredge regulations); Brown, supra
(describing dredges and related functions).
70 322 MASS. CODE REGS. 4.10(2) (stating that it is unlawful to operate or possess a scallop
dredge, or combination of scallop dredges, that is wider that ten feet in the waters of the
Commonwealth); id. 6.08(3)(b) (stating that it is unlawful for any vessel to operate a hydraulic dredge that is
wider than forty-eight inches or more than one dredge while harvesting surf clams);id. 6.08(4)(b)
(stating that it is unlawful for any vessel to operate any hydraulic dredge wider than forty -eight inches
or more than one dredge while harvesting ocean quahogs); id. 6.36(5) (stating that it is unlawful for
any vessel to operate any hydraulic dredge wider than fortye-ight inches or more than one dredge
while harvesting quahogs).
71 Id. 6.08(3)(b)(3).
72 Id. (stating that it is unlawful to operate a dredge to harvest surf clams in the waters of
Chatham, Massachusetts unless it is hydraulic, with a maximum width of sixteen inches, and a three inch
or smaller pump at a ten-foot head with a maximum power of 300 gallons per minute).
74 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 5 (discussing the effects of pressure
and forces from dredging operations on shellfish).
75 See infra notes 79–112 and accompanying text.
76 See infra notes 79–92 and accompanying text.
ecology of an area by detailing the physical, chemical, and biological
alterations dredging causes that may subside after a small period of time or remain
indefinitely.77 Although harmful, Section C shows that this practice remains
the most effective commercial option, but the introduction of an environme
ntally optimal device can change this situation.78
A. Impact on Shellfish
Although certain regulations exist to protect shellfish, dredging results in
potentially significant mortality and damage rates7.9 Dredge mortality and
damage is caused from the device cutting or crushing the target species. 80
Numerous studies vying to measure the impact of dredging on these rates have
resulted in a wide range of findings. 81 Mortality rates range from seven percent
to ninety-two percent, and figur es increase once the device fills while
harvesting.82 Damage rates range from under ten percent to over fifty percent. 83 This
77 See infra notes 93–112 and accompanying text.
78 See infra notes 113–119 and accompanying text.
79 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 17 (discussing that dredge mortal
ity is also caused from other impacts from the gear, pressure inside the collection device, surface
anoxia, and complications from exposure to certain temperatures); Meyer et al., supra note 10, at 19.
80 Meyer et al., supra note 10, at 19.
81 See infra notes 82–84 and accompanying text (discussing mortality and damage test results
from dredging activities).
82 Meyer et al., supra note 10, at 20; LAMBERT & GOUDREAU, supra note 13, at 7. One study
consisting of two tows of a hydraulic dredge targeting clams beneath the ocean floor resulted in these
types of mortalities. Meyer et al., supra note 10, at 20. The two tows utilized different dredge settings
and setups. Id. The first tow resulted in an eighteen percent mortality rate for small clams and an
eighty-three percent mortality rate for large clams. Id. This rate increased after the dredge had filled
within the first ten meters to twenty- six and ninety-two percent respectively. Id. Among the
mortalities, it is estimated that sixty percent had been crushed and the remainder had been cut. Id. One bushel
of the entire catch showed none of the large clams had been damaged, but about fifteen percent of
small clams were damaged. Id. The second tow resulted in a seventeen percent mortality rate for small
clams and a seven percent mortality rate for large clams. Id. This rate increased after the fi rst ten
meters to twenty -eight and thirty percent respectively. Id. Among the mortalities, calculations estimated
that eighty-five percent had been crushed and the remaining fifteen percent had been cut. Id. In a sa
mple bushel of the harvest, eighteen percent of large clams and twenty- one percent of small clams were
damaged. Id. Other tests resulted with some sample sites with a near 100% mortality rate for clams of
a retainable size. LAMBERT & GOUDREAU, supra note 13, at 7.
83 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 59–78; L AMBERT & GOUDREAU,
supra note 13, at 5; J.H. MANNING, THE MARYLAND SOFTSHELL CLAM INDUSTRY AND ITS EFFECTS
ON THE TIDEWATER RESOURCES, MD. DEP’T OF RES. & EDUC. RES. STUDY 5 (1957), http://aquatic
commons.org/6775/1/57-14.pdf. [https://perma.cc/SDF5-N6EZ]. A study attempting to determine the
efficiency of hydraulic dredges resulted in a finding that less than ten percent of surf clams, fifty
percent of razor clams, and less than twenty-five percent of northern propeller and truncated soft-shell
clams are damaged due to the device.LAMBERT & GOUDREAU, supra note 13, at 5. Other studies
have resulted in lower figures. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 59– 78. For
example, one study resulted in fin dings of about one percent shell breakage for the harvested shellfish.
Id. at 61. Another study reported a one to four percent rate of shell breakage of oysters in the harvest.
wide range of mortality and damage rates indicates that the current dredging
practices are unable to account for the various habitat and sea floor conditions
that may directly affect the efficiency of each harvest.84
In addition to directly killing many shellfish in the dredging process,
dredging also leads to an increase in predation mortality. 85 Towing the dredge
along the ocean floor leaves behind a track. 86 Predators are normally active in
dredging areas, but the activity increases after the device passes through, sp
ecifically within the dredge ’s track. 87 Shellfish that are exposed and brought to
the surface of the ocean floor by the device are left unprotected and open to
predators, further exacerbating shellfish mortality. 88 This increase in predation
occurs within hours of a dredge passing and activity rates return to normal a
fter about twenty-four hours.89
Only some shellfish exposed t o predation after a dredge passes are able to
rebury themselves back below the sediment for protection. 90 The density of the
sediment in the area, other environmental aspects, and temperature also factors
into the probability of success. 91 Shellfish, however, are also resilient and can
repair themselves after sustaining non-fatal damage from dredging.92
MANNING, supra, at 5. Finally, a third study determined that clams suffered from a breakage rate
seven to ten percent. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 63.
84 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 59–78 (listing studies and
findings); Meyer et al., supra note 10, at 20 (discussing mortality rates); LAMBERT & GOUDREAU,
supra note 13, at 5 (discussing a wide range of mortality and damage rates in various harvesting areas
on comparable species); MANNING, supra note 83, at 5 (discussing damage rates and efficiencies).
85 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22; Meyer et al., supra note 10, at
21. Predation mortality means the rate of mortality caused by the efforts of predatorsS.ee NAT’L
OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22 (discussing predation mortality); Meyer et al.,
supra note 10, at 21 (discussing predation mortality). Predation is defined as “a relation between
animals in which one organism captures and feeds on others.” Predation, DICTIONARY.COM (Feb. 10,
2018), http://www.dictionary.com/browse/predation [https://perma.cc/VNY6-G8E2].
86 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22; Meyer et al., supra note10, at21.
87 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22; Meyer et al., supra note10, at21.
88 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22; Meyer et al., supra note10, at21.
89 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 22; Meyer et al., supra note10, at21.
90 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 23. The size of the specific shel
lfish relates to how fast it will be able to complete this task. Id. Studies have shown that larger shellfish
rebury at a slower pace compared to smaller ones. Id.
92 Id. at 17. For example, oysters can rapidly heal from minor shell damage and abrasions.Id.
Some species of shellfish are stronger than others, allowing them to suffer less damage. NAT’L
OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 17. Shell strength and resilience, however, cannot
completely protect any species from the effects of dredging. See id. (discussing these qualities but still
detailing high rates of damage and mortality); Meyer et al.,supra note 10, at 20 (discussing these
B. Impact on the Ecology of a Dredged Area
The ecology of an area is negatively affected after it is dredged. 93 After a
device is towed through, there can be significant physical, biological, and
chemical effects. 94 The impact is dependent on the length of the operation, i
ntensity, and the amount of area covered.95
Dredges leave behind tracks due to the dragging of the device on the
ocean floor. 96 The depth and width of the tracks vary and remain until natural
processes restore the sediment that has been displaced. 97 As the device passes
it also disrupts the sediment ’s composition, as well as forming plumes and i
ncreasing turbidity. 98 This has a direct effect on sediment and water quality that
affects the surrounding area.99 Although these effects can naturally subside,
local organisms can be harmed by a reduction in visibility and oxygen
lveels.100 The dredge also affects the surface of the ocean floor by changing its
natural quality and topography by erasing physical structures, burrows, subsu
rface contents, and other natural features.101
93 Goldberg et al., supra note 11, at 11. The ecology of an area refers to the relationship between
an areas living organisms and the natural environment they inhabit and rely upon. See Ecology,
ENCYCLOPÆDIA BRITANNICA (Jan. 18, 2018), https/:/www.britannica.com/science/ecology [https://
perma.cc/4GQJ-WVV7] (defining and discussing ecology).
94 Goldberg et al. , supra note 11, at 12. Dredging operations cause chemical and biological alter
ations to an area. NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 16–30. Organisms that
live on the seafloor that are removed, harmed, or killed by the passing of a device are vital to the
area’s ecology. See id. at 28. (discussing the impact of dredging on the ecology of an area and specific
affects it has on local organisms’ survivability). Many contribute to the natural sediment and water
recycling process that regulates chemical levels, mixes and maintains sediment quality, and sustains
proper oxygen levels. Id. Therefore, mass removal can disrupt the area’ s biochemistry. Id.
Biochemistry is important to ecology and affects vital aspects such as nutrient quality and the environments
95 Goldberg et al., supra note 11, at 12.
96 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11.
98 Id. Turbidity is a measurement or observation of how diluted water is as a result of foreign
sediment, bacteria, chemicals, or other items. Turbidity Measurement, WORLD HEALTH ORG. (1996),
[https://perma.cc/S83VWRWP] (discussing turbidity). A simple example can be seen incomparing clear water and water
mixed with dirt, the latter which being cloudy and diluted. See id. (comparing a muddy river to a fresh
water spring to illustrate turbidity).
99 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 12 (discussing the suspension of
sediment in dredged area water and turbidity and its harmful effects); ROBERT B. RHEAULT, REVIEW
OF THE ENVIRONMENT IMPACTS RELATEDTOTHE MECHANICAL HARVESTOF CULTURED SHELLFISH,
CASHIN ASSOCS. 12–13 (July 11, 2008), http//:www.ecsga.org/Pages/Sustainability/Rheault%20
EIS%20dredge%20impacts.pdf [https://perma.cc/MX8Q-FY6N] (discussing the eff ect of dredging on
sediment and water quality).
100 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 12, 17 (detailing the impact of
dredging on an area and the resulting harms it causes flora and fauna in the affected area).
101 Id. at 13.
These physical effects have the potential to severely impact m arine
organisms.102 Turbidity can disrupt a variety of organisms, including those that rely
on sight to feed, the productivity of macroscopic benthic organisms, and plan
kton that rely on photosynthesis.103 It can also affect the respiration of
organisms by causing hypoxia, anoxia, and gill clogging.104 The variety and
abundance of area organisms can be negatively impacted as well due to the comb
ination of disruptions.105
Dredging in seagrass habitats is currently restricted by state and federal
law.106 Other aquatic vegetation, however, is susceptible to the impact of
dredging and is harmed as a resul1t0.7 Dredging has been compared to the
plowing of plants on land because of its similar outcomes1.08 Every form of
aquatic flora in the device ’s path is highly likely to be harmed or destroyed. 109
Additionally, the utilization of highly pressurized water has the ability to
uproot, destroy, and displace vegetation as well.110 Flora that is away from the
affected area is still negatively impacted by turbidity because it can block any
light from reaching the seafloor, therefore stalling or preventing vital
photosynthesis activity. 111 Overall, dredging causes short term and long term effects
102 Id. at 17.
103 Id. Benthic organisms live on and beneath the ocean floor and are vital to the ecology of an area.
See Aquatic Life: BenthicOrganisms, BATIQUITOS LAGOON FOUND. (2011), http://www.batiquitos
(discussing benthic organisms). Without their natural presence in an area, food chains are disrupted,
harmfully affecting others in the chain. See id. (discussing the importance of benthic organisms).
104 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 17–18.
105 See id. (discussing how the harmful effects of dredging can lead to an area being deadly or uni
nhabitable for certain organisms); MITCHELL TARNOWSKI, A LITERATURE REVIEWOFTHE ECOLOGICAL
EFFECTS OF HYDRAULIC ESCALATOR DREDGING, FISHERIES TECHNICAL REPORT SERIES 6–7 (2006),
http://ecsga.org/Pages/Sustainability/Tarnowski2001(rev2006).pdf[https://perma.cc/WU5P-LTLJ](discussing how dredging can move or bury vital sources of materials needed for shelters or nests).
106 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 26. Seagrass is protected because
of the vital purpose it serves as a habitat and for the ecology of an area. See Seagrass Bed, OCEANA
(Feb. 11, 2018), http: //oceana.org/marine-life/marine-science-and-ecosystems/seagrass-bed [https://
perma.cc/P6QM-T4MP] (discussing the importance of seagrass). This flora forms beds that are
essential for the survival of certain organisms. See id. (detailing that seagrass beds provide shelter,
protection, refuge, and sources of food).
107 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 26.
109 See id. (comparing the effect of dredging on aquatic flora to plowing a field on land); S.J.M.
Blaber et al., Effects of Fishing on the Structure and Functioning of Estuarine and Nearshore
Ecosystems, 57 ICES J. MARINE SCI. 590, 596 (2000) (sharing a similar comparison for seagrass beds).
110 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 26. The highly pressurized water
comes from nozzles attached to hydraulic dredges that work to blast the ocean floor and loosen
sediment to aid in the harvesting of shellfish. Goldberg et al., supra note 11, at 12. The pressure utilized to
accomplish this varies on the sediment of the area andthe species targeted. Id. The proper power
needs to be used to ensure that the dredge can harvest the shellfish in the area while not destroying
them in the process. Id.
111 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 26; MICHAEL C. BARNETTE, U.S.
DEP’T OF COMMERCE, NAT’L OCEANIC & ATMOSPHERIC ADMIN., NMFS-SEFSC-449, A REVIEWOF
that may naturally subside or persist depending on the intensity of
C. Value of Dredging and the Need for an Environmentally Optimal Dredge
Commercial dredging is the most effective way to harvest shellfish from
the ocean floor. 113 Current dredges have the ability to collect over ninety pe
rcent of the shellfish within a track. 114 This process allows fisherman to obtain
large catches to sustain industry needs and meet market requirements. 115
Ending this practice would harm the shellfishing industry and leave fisherman with
inefficient and ineffective options to continue shellfishing commercially.116
A new process or device to commercially harvest shellfish that mitigates
or removes the impact of current dredging operations would substantially be
nefit the environment.117 If this technology was available, its immediate use
would be targeted by everyone involved.118 If patented, however, the holder
THE FISHING GEAR UTILIZED WITHIN THE SOUTHEAST REGION AND THEIR POTENTIAL IMPACTS ON
ESSENTIAL FISH HABITAT 4 (Feb. 2001); Turbidity, NOAA OCEAN SERV. EDUC. (July 6, 2017),
perma.cc/RYC6-SPNM] (discussing turbidity’ s negative effect on organisms dependent on
photosynthesis to survive, and the additional negative effect to the food chain due to its impact).
112 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–30 (discussing the physical,
biological, and chemical impact dredging has on an area and the length of time needed for the harm to
the area to revert to previous natural conditions).
113 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4–6 (discussing the history
and development of shellfish harvesting); Meyer et al., supra note 10, at 18 (discussing the high eff
iciency of current dredges at ninety percent); How Seafood Is Harvested, J.J. MCDONNELL (2017),
(illustrating and explaining shellfish dredging).
114 Meyer et al., supra note 10, at 18; see NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1,
at 4–6 (discussing dredges and methods of shellfish harvesting); Seafood &Human Health, supra note10
(stating that each American consumes about 15.8 pounds of seafood and shellfish per year).
115 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4–6 (discussing the
performance of dredges); Meyer et al., supra note 10, at 18 (discussing the high efficiency of current dred
ges); Seafood & Human Health,supra note 10 (stating that each American consumes about 15.8
pounds of seafood and shellfish per year).
116 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 4–6 (discussing the
performance of dredges); Meyer et al., supra note 10, at 18 (discussing the high efficiency of curr ent
dredges); Seafood & Human Health, supra note 10 (detailing levels of U.S. seafood consumption).
117 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11 –30 (detailing the harms of
dredging); Meyer et al., supra note 10, at 19 –20 (discussing shellfish mortality rates from dredging).
118 See NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–30 (discussing the harms
of dredging to the environment which impact harvestable shellfish); Meyer et al., supra note 10, at
19–20 (discussing shellfish mor tality rates from dredging which shows the loss of potentially harves
table shellfish); Seafood & Human Health, supra note 10 (detailing levels of U.S. seafood consum
would have no obligation to introduce it into the market or utilize its benefits
because of intellectual property rights.119
III. LEGAL BACKGROUND
This Part provides an overview of four different areas of law that are vital
to the argument made in this Note.120 Patent law is vital to this Note’s
argument and is covered in Section A with an overview of patents, the rights
conveyed to the holder, protections, and the policies behind the system within the
United States. 121 Patents, however, do not automatically prevent unauthorized
utilization of the intellectual property they contain, any such activity needs to
be acted upon through an infringement suit detailed in Section B. 122 Section C
covers Monopoly and antitrust law, focusing on the relation between this topic
and patents.123 Finally, Section D explains best available technology laws,
providing an overview of these standard setting mandates.124
A. Patent Law
Technological advancements, inventions, and innovations have brought
about the modern world and continue to propel mankind into the future. 125
Inventors come forward and introduce their creations into the public and offer its
uses and benefits to everyone.126 The inventors are also free to demand their
own benefits in exchange.127
The invention alone, however, is open to theft, copying, and unauthorized
reproduction.128 To prevent this outcome, inventors and creators may apply for
and be granted a patent on their inventions, which provides them with several
rights and protections.129 In the United States, the Federal Government
pro119 See 35 U.S.C. § 154(a)(1) (2012) (setting forth a patent holders rights which does not include
any duty to utilize the protected intellectual property);id. § 261 (stating that patents are treated as
120 See infra notes 125–274 and accompanying text.
121 See infra notes 125–212 and accompanying text.
122 See infra notes 160–212 and accompanying text.
123 See infra notes 213–247 and accompanying text.
124 See infra notes 248–274 and accompanying text.
125 See Seymour v. Osborne, 78 U.S. (11 Wall.) 516, 533–34 (1870) (stating that patents provide
holders with personal property and exclusion rights which ensure that an inventor ’s work and
ingenuity is protected from free utilization so that they can benefit from their labor while simultaneously
promoting progress in science and arts for the publics benefit).
128 See JOHN GLADSTONE MILLS III ET AL., 1 PATENT LAW FUNDAMENTALS § 1:3 (2d ed.
2016) (discussing how others may freely copy one’s invention without repercussion). Without any
protections, an inventor ’s work, efforts, and ideas can be swept away, potentially leaving the
innovator with nothing. See id. (discussing the value patent rights provide to a holder).
129 Id. § 1:4.
vides this protection, and the power to grant these rights is enshrined in the
United States Constitution. 130 When a patent is issued, the government grants
the inventor numerous protections for a limited time, including full property
rights and the power to exclude.131 Through exclusion, the inventor can
prevent anyone from using their patented invention. 132 Therefore, when the inve
ntor goes public with their work, using it as they see fit, no one can lawfully
copy, reproduce, or utilize the invention without permission.133
Although a patent provides its holder with a great deal of protections and
benefits, in exchange, the holder must publicly disclose their work in its entir
ety.134 In the patent application, the invention is detailed providing the knowledge
needed for others to utilize the idea1.35 Essentially, a patent is an incentive to
disclose, which provides the inventor with a monopoly on their work for a li
mited time.136 However, when the time period expires, the disclosed invention is
freed to the public domain, allowing unrestricted use without any recourse that
could have been brought when the patent was active.137
This exchange benefits both the inventor and the public by creati ng a ba
lance that facilitates progress and advancement. 138 Disclosure, although a key
aspect, is not the main reason for granting patent protections.139 Patents
mote and encourage innovation by assuring inventors and creators that their
work will be protect ed and allow for them to benefit from their efforts. 140 With
their work guarded, patent holders can freely introduce their invention into the
public and utilize it how they see fit. 141 The public benefits from the new
technology and innovation in exchange for a time-limited monopoly.142
Patents are issued through the Unites States Patent and Trademark Office
(“USPTO”).143 This agency oversees the applications and reviews submitted
materials in order to determine if a patent should be issued, granting the appl
icant the protections it carries.144 A new idea alone is insufficient to receive a
patent.145 An applicant must also meet specific criteria, technical aspects, and
have legal merit.146 Further, the patent application cannot conflict with an a
lready patented idea, thus requiring something new and non -public in order to
proceed.147 As a result, applicants should conduct a search to ensure that their
invention is not already patented.148 Conflicts with active patents can lead to
infringement suits for violations of the property and exclusion rights that pr
Utility, design, and plant patents are the three major types of patents
issued by the USPTO. 150 Utility patents, or patents for invention, are issued for
the invention of a new and useful process, machine, manufacture, or compos
ition of matter, or a new and useful improvement thereof. 151 Patent holders are
allowed to exclude others from producing, using, or selling the invention for
up to twenty years from the day the application is filed.152 These protections
and rights are subject to the payment of maintenance fees.153 In recent years,
approximately ninety percent of the patents issued by the USPTO have been
utility patents.154 The USPTO also issues design and plant patents, however,
this Note centers on a hypothetical utility patent. 155
Patents are treated as the personal property of the holder. 156 As such, a p
atent can be utilized, sold, divided, transferred, licensed, assigned, and any other
action that is generally associated with the free use of personal propert1y5.7
Additionally, the interest in a patent application is treated the same as an issued
patent.158 Therefore, an application, once filed with the USPTO can be sold or
transferred before it is final.159
B. Patent Infringement
When the personal property or patent ri ghts of the holder are violated, the
violator has infringed upon the patent1.60 Various actions can qualify as
nifringement, but every type shares the common element of utilizing intellectual
property that belongs solely to the holder.161 A patent holder can bring an
infringement suit, which is a civil cause of action, in order to enforce their
USPTO Fee Schedule: Patent Maintenance Fee,s U.S. PAT. & TRADEMARK OFF. (Jan. 16,
[https://perma.cc/K4UH-RLEB]. Current fees are $400, $900, and $1850 respectively per per
iod. Id. These maintenance fees work to ensure that patent holders are currently utilizing their
intellectual property. Patent Maintenance Fees , Bus. Pats. (2017),
http://www.the-business-ofpatents.com/patent-maintenance-fees.html [https://perma.cc/DE7G-ADF4]. Thus, if a payment
is purposely missed, the protections can be extinguished and the intellectual property can be
released into the public domain. Id.
154 Types of Patents, supra note 28.
155 See infra notes 272–276 and accompanying text (setting forth hypothetical patent created for
the purposes of this Note). The USPTO issues design patents for a new, original, and ornamental
design exemplified in or applied to a holder ’s product. Types of Patents, supra note 28. Holders of this
type are allowed to exclude others from producing, using, or selling the design set forth in the patent.
Id. Design patents granted from applications filed on or after May 13, 2015, provide protections for
fifteen years. Id. Design patents granted from applications filed before May 13, 2015 , provide
protections for fourteen years.Id. Unlike utility patents, design patents do not require the payment of
maintenance fees for protections to continue. Id. Plant patents are issued for a newly invented or di
scovered asexually reproduced plant that is distinct. Id. Such plants include cultivated sports, mutants,
hybrids, and newly found seedlings. Id. A tuber propagated plant or a plant found in an unrefined state
are excluded and not patentable. Id. Plant patent holders can exclude others from produ cing, using, or
selling the plant for up to twenty years from the date the application is filed. Id. Protections continue
for the specified time and are not subject to the payment of maintenance fees of any kind. Id.
156 35 U.S.C. § 261.
157 Id. (stating that patents are personal property and may be freely used as such which allows the
holder to assign, grant, convey and interest in, and perform any other act exercisable with personal
rights.162 In a successful action, a patent holder can receive monetary damages,
such as a reasonable royalty, injunctive relief, and other equitable remedies. 163
A court can also award treble damages for infringement if deemed
appropriate.164 Such an increase in damages is normally ordered in cases of willful and
The most effective way to stop infringement is through a permanent
injunction, which is a court order commanding an action. 166 The common belief
is that the courts will generally issue an injunction in an infringement case. 167
The Supreme Court, however, ruled that injunctions for infringement are not
automatic, and a court is free to apply the principles of equity and rule accor
dingly.168 The Supreme Court held that to grant an injunction, the patent holder
must satisfy a four -part test and show that it is the sole available remedy. 169 To
do so, the plaintiff must establish (1) that irrepa rable harm has been suffered,
(2) that remedies at law are insufficient, (3) that within a balance of hardships,
an equitable remedy is justified in favor of the plaintiff, and (4) that the interest
of the public will not be harmed from the grant of an injunction.170 Through
these factors, a holder can show that an immediate halt is warranted, but such a
grant of relief does not automatically flow from the protections provided to a
patent.171 If an injunction is not granted, the plaintiff can still receive dama ges
through remedies at law for past, present, and continued infringement.172
Although the Supreme Court held that this test applies in infringement
cases brought under the Patent Act, it provided little guidance for future dec
isions.173 The Court expressly st ated that it takes no position in which types of
infringement cases merit injunctive relief. 174 Rather, the decision is to the
discretion of the district court judges, subject to traditional principles of equity. 175
Further, discretion must be limited to the extent that similar cases result in the
same outcome to promote uniformity and justice.176 The Supreme Court did,
however, state that categorical approaches to certain circumstances within a
case should be avoided and that the specific facts of every case need to be r
eviewed prior to issuing a decision.177
Subsequent to the Supreme Court’s four-part test ruling, district courts
have resolved numerous and various cases. 178 For example, in Mercexchange,
L.L.C. v. eBay, Inc., a patent holder sought a permanent injunction against an
online business that willfully infringed on its patent that the business utilizes in
order to operate and function. 179 The District Court for the Eastern District of
Virginia denied the injunction because the patent holder failed to meet the
requirements of the four -part test. 180 The plaintiff ’s consistent practice and wil
lingness to license its patent, lack of commercially utilizing the patent, and its
use of patent protections to collect, negotiate for, and recover money rather
than to protect its intellectual property prevented a showing of irreparable
harm.181 Therefore, the court believed that remedies at law were adequate to
compensate the patent holder for the infringement because it did not utilize the
patent and consistently granted use pe rmissions.182 The hardships of the parties
were balanced because the patent holder licenses its patents which will be u
ndiscretion of the district courts, and that such discretion must be exercised consistent with traditional
principles of equity, in patent disputes no less than in other cases governed by such standards.”).
175 See eBay, Inc., 547 U.S. at 394 (setting out the test, but remanding the case to the district court
for application); Roche Prods., Inc. v. Bolar Pharm. Co., 733 F.2d 858, 856 (Fed. Cir. 1984) (discus
sing the considerable discretion district courts have in their evaluation of whether to grant injunctive
176 eBay, Inc., 547 U.S. at 394; Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005);
Roche Prods., Inc., 733 F.2d at 856.
177 eBay, Inc., 547 U.S. at 393. For example, a holder not utilizing a patent in their possession
does not preclude that holder from obtaining an injunction. Id. (stating that the injunctive relief test
should not be applied categorically and that lack of commercial activity utilizing the patent would not
preclude the grant of injunctive relief). Further, a patent holder’s willingness to license or grant
permissions to another also does not bar a holder from equitable relief. Id. Although either of these
factors can lead to a denial of a permanent injunction, they should not be viewed as an automatic bar
from exercising patent exclusion rights. Id. at 393–94. The Court reinforced this approach because it is
a normal occurrence for patent holders, who are unable to bring their work to market, to grant permi
ssions to practice their work to others in order to obtain a profit, benefit, or satisfaction. Id. at 393.
178 Robert Bosch L.L.C. v. Pylon Mfg. Corp., 659 F.3d 1142, 1145 (Fed. Cir. 2011); Acumed
L.L.C. v. Stryker Corp., 551 F.3d 1323, 1326 (Fed. Cir. 2008); MercExchange L.L.C. v. eBay, Inc.,
500 F. Supp. 2d 556, 560 (E.D. Va. 2007); Praxair, Inc. v. ATMI, Inc., 479 F. Supp. 2d 440, 441–42
(D. Del. 2007).
179 500 F. Supp. 2d at 560.
180 Id. at 590–91.
181 Id. at 569–72. The plaintiff’s failure to show that an injunction is needed to protect its brand
name, market share, reputation, and good will also prevented a showing of the first part of the test. Id.
182 Id. at 582.
affected regardless of an injunction and the infringer is now believed to have
designed around the patent and eliminated its dependence on the intellectual
property.183 Finally, it is evident that the public benefits from the patent system
and the exchange of benefits that result from the granting of protections. 184 The
court, however, believed that the public is best served without enjoining the
infringer because the defendant is a multibillion dollar company with a
substantial impact on the United States economy and the patent holder is a two
person company that solely licenses its intellectual property.185
In Praxair, Inc. v. ATMI, Inc., a paten t holder filed a motion to enjoin an
infringer from utilizing its intellectual property to create a mechanical-based
safety control device for the discharging of pressurized fluids from pressurized
tanks.186 The plaintiff and defendant are the only two producers of this
technology and are in direct competition in their market. 187 The District Court for
the District of Delaware denied the patent holder’s request for an injunction
because it failed to satisfy the equitable remedy test.188 Plaintiff attempted to
show that it will face irreparable harm because it could lose additional market
share, profits, and goodwill, but it failed to provide detailed figures, market
data, or revenues that amount to more than speculation. 189 Additionally,
plaintiff argued that its right to exclude allows for it to be a monopoly supplier of
the product, but the court dismissed this as a common factor and useless in
meeting any part of the test1.90 Thus, the patent holder could not show that
monetary damages are inadequate to compensate f or infringement. 191 Further,
the court acknowledged that protecting patent rights is important to the
public’s interests.192 Enjoining the defendant, however, posed a far greater harm
because it would force the defendant to cease production of the device, whic h
would then force its customers, billion dollar fabrication plants, to cease oper
ations and embark on a costly search for an alternative.193
Conversely, in Robert Bosch L.L.C. v. Pylon Manufacturing Corp., the
Court of Appeals for the Federal Circuit ordered a permanent injunction
against an infringer who utilized a patent to produce a product it sold in direct
183 Id. at 583–84.
184 Id. at 586–87.
186 Praxair, Inc., 479 F. Supp. 2d at 441–42. The plaintiff’s patents disclose a device that
provides increased safety and help in the handling, storage, and transporting of highly pressurized mater
ials in day to day operations or in the event of mistakes and failures. Id.
187 Id. at 442.
188 Id. at 443.
189 Id. at 443–44.
190 Id. at 444.
192 Id. at 443.
competition with the patent holder. 194 Infringement caused the patent holder to
suffer irreparable harm because it directly competed with the infringer which
resulted in an unrebutted documented loss of market share, profits, access to
potential customers and an erosion of its produc’ts price.195 Thus, the court
found that monetary damages were inadequate because they cannot remedy the
harm caused by the infringement. 196 Further, the Circuit Court ruled that a ba
lance of hardships comes out in favor of the patent holder because failing to
enjoin the infringer would further the irreparable harm and force com petition
against its own product in a highly competitive market.197
Similarly, in Acumed L.L.C. v. Stryker Corp. , the Court of Appeals for the
Federal Circuit affirmed the enjoining of an infringer that utilized the patent of
another to develop and manufacture a similar medical device that treats bone
fractures.198 The court found that the patent holder suffered irreparable harm
because the infringer is a direct competitor and its product led to a loss in pro
fits, sales, and market share.199 Therefore, the irreparable harm could not be
remedied adequately by a monetary award. 200 The infringer referred to licenses
granted by the patent holder to other competitors in an attempt to show the
holder had a willingness to license its intellectual property and therefore rem
edies at law were sufficient. 201 The Circuit Court, however, found that the two
licenses granted did not display willingness because one had been granted on
account of a settlement agreement from an infringement suit and the other
granted permission to a non-direct competitor.202 A balance of hardships also
came out in favor of the patent holder because the infringer was a much larger
company, the infringing product only accounted for a small portion of its sales,
and it had a non -infringing alternative that it had previously chose not to utilize
for business reasons.203 Finally, the court reasoned that granting a permanent
injunction against the infringer would not harm the public because alternatives
194 Robert Bosch L.L.C., 659 F.3d at 1145.
195 Id. at 1151, 1153.
196 Id. at 1155. The patent holder also introduced evidence that the infringer faced financial
problems and is currently under severe financial stress which made its ability to pay a monetary judgment
questionable. Id. at 1154.
197 Id. at 1156. The court also held that the public interest part of the test is neutral and
unmiportant in this decision. Id.
198 551 F.3d at 1326.
199 Id. at 1327–28.
200 Id. at 1329.
201 Id. at 1328–29.
202 Id. at 1328. The Court also noted that past licenses do not automatically show a willingness to
grant to others because adding a new competitor may create irreparable harm that did not exist with
current licensees. Id. at 1329.
203 Id. at 1329–30.
to both the plaintiff’s and defendant’s product existed on the market and no
public health concerns existed.204
C. Monopoly and Antitrust Law
Essentially, a patent is a government issued monopoly that protects the
holder’s idea or invention by allowing them to exclude others from utilizing
what is set forth in the patent.205 Traditionally, a monopoly exists when one
economic entity has control or a significant advantage over a market within a
specific area, region, or nation.206 As a result of the entity’s efforts, it moves
into a position that allows for control of prices and other market factors that
lead to an ability to suppress and remove competition. 207 This power can also
harm the public, as it will be subject to the entity’ s prices if no viable compet
Although control is an important factor in defining a monopoly, the term
can also apply to circumstances where the entity substantially approaches the
economic position. 209 For example, controlling ninety percent of a market has
been held to be enough to be considered a monopoly. 210 Other percentages of
lesser amounts can qualify as well, but no exact set percentages are available
to compare and review all situations. 211 Thus, a court will review all available
circumstances to determine if a monopoly exists.212
Since the formation of the United States, the public hasfeared the
economic power that a monopoly provides to an entit2y1.3 By 1890, a limited
number of corporations and individuals amassed an immense amount of wealth
by forming monopolies and bringing the control of a market into their
hands.214 As a result, competition was eliminated, prices were controlled, and
the public was subject to their position that fueled the fear and concern.215
To combat this economic issue, Congress passed the Sherman Antitrust
Act in July 1890. 216 This new law sought to prevent abuse by monopolies and
suppress economic actions that lead to their formation. 217 Such economic
actions include restrictions on trade and production, restraining competition and
commercial transactions, and other acts that lead to control of a market. 218
Essentially, the monopolistic entity uses its position to influence the market and
drive out competition. 219 All of these actions are regarded as harmful to public
welfare and the consumer economy. 220 Congress believed that public welfare is
best served when resources are used in the most efficient and effective ways,
through competition fueled by quality and price, and when the market is driven
to create and offer the best products and services2.21 Therefore, through the
Sherman Antitrust Act, Congress sought to promote and protect competition
while making certain actions that stifle it illegal. 222 The ShermanAntitrustAct
is not designed to protect businesses from capitalism and market forces. 223 If
213 JOHN BOURDEAU ET A L., 54 AMERICAN JURISPRUDENCE: MONOPOLIES AND
RESTRAINTS OF TRADE § 1 (2d ed. 2016).
216 Id.; Sherman Antitrust Act, ch. 647, § 1, 26 Stat. 209– 210 (1890) (codified as amended
at 15 U.S.C. §§ 1–7 (2012)).
217 BOURDEAU ET AL ., supra note 213, § 1; see 15 U.S.C. §§ 1–3 (setting forth anti -competitive
acts and abuses).
218 BOURDEAU ET AL., supra note 213, § 1.
223 Id. § 2. The actions that are illegal under the Act are ones that are manipulative and unfairly
destroy competition. Id. The Act does not prevent conduct that is competitive or business driven that
may remove a competitor from the market. Id. Thus, it is key to understand that the preservation of
true competition is the goal of the Sherman Antitrust Act, and not the competitors within a given ma
rket. Id. Restraint on trade is a product of competition and occurs between competitors vying for the
greatest market share. Id. § 46. It must be proven that an economic entity’ s actions have or are
intended to have an influence on pricing, the market, or affect purchasers ’ or consumers’ positions in a way
that is anti-competition and manipulative. Dickson v. Microsoft Corp., 309 F.3d 193, 202, 206, 211
an entity, through efficient and effective competitive business practices moves
into a position where market share is controlled and obtains monopoly status, the
Sherman Antitrust Act will not be invoked and the monopoly will be law ful.224
If a patent holder enters a market and is successful, leading to monopoly
status, the holder will not automatically face antitrust lawsuits. 225 The right to a
monopoly is one of the major benefits of the patent system and is essentially
its entire purpose. 226 The protections offered by the law to safeguard a holder ’s
monopoly ensures that no one can utilize the patent without permission and
protects the economic value of the invention.227
Patent protections can be suspended or unenforceable if the patent holder
engages in misuse. 228 Misuse is a common law defense to an infringement
action and is based on the equitable doctrine of unclean hands. 229 An example of
misuse is “tying” which is the act of making the sale or license of a patent co
ntingent on another transaction, sale, or other financial obligation.230 The
Supreme Court first recognized patent misuse in Morton Salt Co. v. G. S.
Suppiger Co., a 1942 case where the plaintiff licensed a machine, but also required
that licensees purchase another product unrelated to the patent.231 The Court
found this conduct anticompetitive and an attempt by the holder to abuse it
position through its patent.232 Therefore, the Court blocked the infringement
action because of the plaintiff’s patent misuse.233
The doctrine of patent misuse has been developed since its recognition by
the Supreme Court.234 The doctrine, however, relies greatly on antitrust law
and shares numerous similarities, specifically, the anticompetitive conduct it
scrutinizes.235 In 1988, Congress passed the Patent Misuse ReformAct, which
codified the defense and grew the similarities between the two doctrines2.36
For example, a defense based on tying now requires a showing that the patent
holder has market power and position which allows them to manipulate the
market.237 Previously, the defense did not require this element and a defendant
could rely on the anticompetitive conduct of the patent holder. 238 Overall, the
doctrine is essentially the Sherman Antitrust Act of patent law, even though
both bodies of law can apply simultaneously to a situation where a patent
holder engages in anticompetitive conduct.239
D. Best Available Technology Laws
The Government cannot pass a law that directly forces holders to utilize
their patent.240 It can, however, pass a “Best Available Technology ” law that
forces the use of the best available option for a particular purpos2e41. Best
available technology laws set a standard that essentially requires the use of the
most efficient and environmentally beneficial technology within a regulated
field so long as it is economically feasible. 242 Generally, it does not require that
the party affected by the regulation develop its own technology to meet the
standard.243 It does, however, require that the most efficient and affordable
technology that is available is used in order to meet the standard of the law. 244
No exact figures or numerical standards are set and the regulation solely calls
for the use of the available technology2.45 Through this, the law essentially
calls for the highest standard possible for the regulated field without setting a
237 Olson, supra note 230, at 572.
239 Id. at 570–72.
240 See 35 U.S.C. § 154(a)(1) (2012) (setting out the rights of a patent holder and not providing
any statutory basis for forcing a patent’s use).
241 See 33 U.S.C. § 1311(b)(2)(A) (2012) (setting out the best available technology performance
requirement under the Clean Water Act); Learn About Effluent Guidelines , supra note 30 (summari
zing best available technology standards).
242 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology standard to mandate the
use of the most optimal technology that is economically feasible); Learn About Effluent Guidelines,
supra note 30 (discussing what is required from mandates that set standards).
243 See 33 U.S.C. § 1311(b)(2)(A) (requiring the use of the best available technology);Learn
About Effluent Guidelines, supra note 30 (discussing what is required from standards set through
244 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology law standard);Learn
About Effluent Guidelines, supra note 30 (discussing best available technology law standards).
245 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology law standard wtihout
setting an exact level); Learn About Effluent Guidelines, supra note 30 (discussing mandates that
require the utilization of optimal technology without requiring specific levels).
mark that needs to be achieved. 246 The law, and what it requires, aims to attain
the best result for the item that is being regulated.247
Through best available technology laws, optimal but unutilized technol
ogy can be forced into use because of the need to comply with the law. 248 Any
entity under the regulation that chooses not to do so will violate the law and
face consequences. 249 Thus, to be compliant, the entity will need to utilize the
best technology available that is economically feasible to implement. 250
Therefore, if a patent holder has control of a patent that is the best available techno
logy that is economically achievable, it could be pulled into the standard and
will be the technology that must be used to comply with the law. 251
The Clean Water Act ( “CWA”) utilizes a best available technology stan
dard to achieve Congress’s goal of eliminating the discharging of pollutants
from point sources and its national goal to protect, preserve, and restore the
waters of the United States. 252 The standard sets effluent limitations for certain
entities regulated under the statute.253 The Environmental Protection Agency
(“EPA”) generally determines the best available technology that is economica
lly achievable through the guidelines established by Congress. 254 Accordingly,
the standard requires the use of the best practices and control methods c
urrently achievable which include pollution treatment techniques, innovations, opt
imal modes of operation, and any other alternative techniques, methods,
processes, or procedures.255 These elements are further examined through other
246 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technolog y standard to set a required
level without stating an exact requirement, leading to the level to progress with time); Learn About
Effluent Guidelines, supra note 30 (discussing standards that develop from mandates).
247 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology standard to mandate the
use of optimal technology and processes); Learn About Effluent Guidelines , supra note 30 (discussing
mandates that require a certain level or standard be met).
248 See 33 U.S.C. § 1311(b)(2)(A) (requiring a standard to be met in order for a regulated entity to
be compliant); Learn About Effluent Guidelines , supra note 30 (discussing standards from mandates).
249 See 33 U.S.C. § 1311(b)(2)(A) (requiring a standard to be met for compliance); Learn About
Effluent Guidelines, supra note 30 (discussing standards from mandates).
250 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology standard to set the level
required for compliance); Learn About Effluent Guidelines , supra note 30 (discussing standards
formulated from mandates).
251 See 33 U.S.C. § 1311(b)(2)(A) (utilizing a best available technology standard); Learn About
Effluent Guidelines, supra note 30 (discussing what formulates compliance with a standard).
252 33 U.S.C. § 1311(b)(2) (stating that compliance “shall require application of the best available
technology economically achievable for such category or class, which will result in reasonable further
progress toward the national goal of eliminating the discharge of al l pollutants”); Id. § 1251(a) (setting
forth the national goal and including seven objectives to achieve it).
253 33 U.S.C. § 1311(b)(2) (requiring the use of best available technology that is economically
254 Id. (stating that the EPA shall make this determination); Id. § 1314(b)(2) (granting the EPA
the ability to determine what satisfies mandated standards and the ability to“specify factors to be
taken into account in determining the best measures and practices available to comply with subsection
(b)(2) of section 1311”).
255 Id. § 1314(b)(2).
factors such as cost, development over time, environmental impact on
nonwater aspects, engineering requirements, and the specific industry that will be
affected.256 Further, the EPA will review an entire industry and research met
hods and practices currently utilized to determine wh at standard is possible. 257
Thus, an optimal operation within an industry will be used in determining what
the standard should require.258 The agency also looks to pilot plant studies,
bench scale studies, and even foreign operations.259
Setting such a standard is an efficient option that avoids the need for
constantly updated legislation that would otherwise be needed to mandate the use of
optimal technology. 260 Accordingly, the standard can progress with the develo
pment of new technology that ensures the highest economically achievable
efficiency is attained by those governed by the statutes and regulations. 261 Further, a
best available technology law sets a performance requirement and not a design
requirement.262 This requires the entity regulated by the standard to achieve that
level of performance, but allows for the entity to freely choose how to attain
it.263 Although there is a level of choice, it is likely that the use of the most mo
dern technology with the greatest efficiency will be used to comply2.64 Entities
regulated by the standard must meet their performance level, which creates an
environmental benefit that would otherwise be lost or delayed. 265 An entity can
receive a variance that excludes them from the standard, but these are rarely
granted which ensures that the standard is upheld wherever possible.266
256 Id. (“Factors relating to the assessment of best available technology shall take into account the
age of equipment and facilities involved, the process employed, the engineering aspects of the
application of various types of control techniques, process changes, the cost of achieving such effluent
reduction, non-water quality environmental impact (including energy requirements), and such other factors
as the Administrator deems appropriate.”).
257 Kennecott v. U.S.E.P.A., 780 F.2d 445, 448 (4th Cir. 1985); ENVTL. LAW INST., 2 LAW OF
ENVIRONMENTAL PROTECTION § 3:59 (2017) (covering the best available technology standard and
the factors that influence the level of performance required by regulated entities).
258 Kennecott, 780 F.2d at 448; ENVTL. LAW INST., supra note 257, § 13:59 (discussing factors
for the standard as well as anomalies within industries).
259 Karen M. Wardzinski et al., Water Pollution Control Under the National Pollutant Discharge
Elimination System, in THE CLEAN WATER ACT HANDBOOK 8, 20 (Parthenia B. Evans ed., 1990)
(discussing sources of information used by the EPA to set the standard for compliance with the Clean
Water Act and other mandates).
260 See DIETRICH H. EARNHART & ROBERT L. GLICKSMAN, POLLUTION LIMITSAND POLLUTERS’
EFFORTS TO COMPLY 36 (2011) (discussing mandates that require a certain standard to be reached
rather than a specific level or utilization of a certain technology or process).
261 See id. (discussing mandates that require the utilization of technology that is optimal without
stating directly what must be utilized at that present time).
262 Id. at 36–37.
264 See id. (discussing the mandated standards that are likely updated with the advancement of
technology and processes).
265 See Wardzinski et al., supra note 259, at 24 (indicating that entities regulated by best available
technology standards are only excepted from the requirements under limited circumstances).
IV. ANALYSIS OF THE EFFECT OF A BEST AVAILABLE TECHNOLOGY LAW
ON A PROTECTED ENVIRONMENTALLY OPTIMAL PATENT
This Part contains the central argument of this Note and relies on a hyp
othetical patent to an environmentally optimal shellfishing dredge, detailed in
Section A, that is owned by a shellfishing entity in the industry2.67 With the
intellectual property in place, an overview covering the likely status of the p
atent in the current shellfishing industry is discussed in Section B and concludes
that the environmentally optimal device will go unused and its benefits unrea
lized.268 To combat this issue, Section C suggests that the Commonwealth of
Massachusetts should formulate a best available technology law that will
mandate the utilization of the optimal device through its required standard of pe
rformance.269 This solution, however, is problematic due to the protections the
patent provides its holder, no legal obligations to license the device, and the
creation of a mon opoly status for the holder due to the mandate. 270 Therefore,
Section D argues that any shellfisherman that are unable to lawfully use the
device, should willfully infringe which will result in an infringement suit that
will end with an order for reasonable royalties to be paid, the equivalent of a
lawfully granted license.271
A. Hypothetical Environmentally Optimal Patent
Assume, for the purposes of this Note, that a commercial fisherman in the
Commonwealth of Massachusetts purchased a patent that contains the rights to
an environmentally optimal dredge that would substantially mitigate the harm
caused by current dredges. 272 The fisherman purchased the patent because the
new device, although slightly more expensive, was believed to increase shel
lfish yield and allow for cheaper operational costs, thus providing an edge in
the market. 273 When tested, the yield remained the same, but the environmental
267 See infra notes 272–276 and accompanying text.
268 See infra notes 277–298 and accompanying text.
269 See infra notes 299–325 and accompanying text.
270 See infra notes 299–325 and accompanying text.
271 See infra notes 326–352 and accompanying text.
272 See 35 U.S.C. § 261 (2012) (stating that patents are treated as personal property); NAT’L
OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11– 30 (detailing the harmful environmental impact of
dredging); Meyer et al., supra note 10, at 19–20 (detailing the high shellfish mortality rates).
273 See 35 U.S.C. § 261 (stating that patents are treated as personal property); NAT’L OCEANIC &
ATMOSPHERIC ADMIN., supra note 1, at 11– 30 (detailing the harmful environmental impact of
dredging); Meyer et al., supra note 10, at 18–20 (discussing high dredge efficiency and shellfish mortality
rates from dredging); Seafood & Human Health, supra note 10 (providing insight in to the U.S.
harm decreased substantially. 274 Due to the lack of increased yield and the cost
to implement this new device, the commercial fisherman decided not to utilize
the environmentally optimal dredge for business reasons2.75 As a result, the
environmental benefit this new device can create is stored away, unused, and
protected by patent law.276
The availability of an environmentally optimal patent should trigger an
effort to promote its use.277 Generally, there are no laws that force a patent
holder to utilize their invention or idea. 278 Patent laws protect the inventor, a
llowing the holder to use their rights in any way they choose2.79 The right to
exclude is also an inherent right to a patent holder, further allowing them to
prevent others from using their invention. 280 Normally, when an op timal
invention is created, it is both economical and beneficial to introduce it into the
market and into the public. 281 The patent holder benefits from its use econom
ically and earns satisfaction from their work while the affected market becomes
better and more efficient. 282 Essentially, all parties involved benefit from tec
nological advancements and this continued cycle has driven every industry and
market in the world.283
In this situation, the holder of an environmentally optimal patent has no
obligation to utilize the invention. 284 Due to the rights that accompany a patent,
the holder is free to choose what actions to take. 285 The patent holder can sell,
transfer, license, produce, or perform any other action associated with personal
property.286 They also have the right to simply hold the patent and do
nohting.287 Thus, if the holder does not utilize the patent in any way its benefits will
be unrealized. 288 Further, if anyone acts without the consent of the holder and
utilizes the patented invention they will be infringing. 289 Generally,
infringement will lead to a lawsuit to enforce patent rights and can result in an award
of compensatory damages, punitive damages, and injunctive relief. 290 Without
permission, a license, or ownership of the patent, the best option for som eone
that hopes to use the invention is to essentially wait until the protections
exSeymour, 78 U.S. (11 Wall.) at 533–34 (discussing the benefits patents provide the public and hol
pire.291 As such, the individual will need to wait twenty years from the
application filing date of the patent.292
The hypothetical patent holder is active in the commercial sh ellfishing
industry.293 Regardless of what technology is used in its operations, the entity is
not utilizing the environmentally optimal patent. 294 The current technology, so
long as regulations set forth by the Massachusetts Division of Marine Fisheries
(“DMF”) are followed, is lawful. 295 The DMF sets out specific regulations that
set permit requirements, catch limits, seasons, and dredge dimensions, but do
not specify what technology must be used. 296 Thus, current DMF and
Massachusetts law is ineffective in promo ting the use of the optimal patent and pla
ces no pressure on the patent holder to utilize the invention. 297 Additionally, no
violations of these regulations can be used to force the use of the patent
because they do not address efficiency standards or technology standards.298
To force the environmentally optimal patent into use, the Massachusetts
Legislature or the DMF should act and pass a best available technology law
pertaining to dredging in state waters. 299 Due to the new invention ’s efficiency,
capability to decrease the mortality rate, decreased impact on the environment,
and ability to match current harvesting rates, it will be the best available
technology.300 When enacted, every commercial dredging operation will be forced
291 See Aronson, 440 U.S. at 262 (discussing patent protections and the balanced benefit of
providing a patent holder with those protections for a period of time in exchange for the intellectual
property eventually being released for public use upon the expiration of those rights); MILLS ET AL.,
supra note 128, § 1:2 (discussing a patent holder ’s protective rights and the expiration of those
rights after a patent specific period of time when the intellectual property moves into the public
292 See Aronson, 440 U.S. at 262 (discussing patent rights and expiration, whereupon the
intellectual property is released into the public domain); MILLS ET AL., supra note 128, § 1:2 (discussing
patent rights and their expiration); Types of Patents, supra note 28 (stating that a utility patent
expires after twenty years from the application date).
293 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 3–7.
294 Id. at 3–7, 11–30; Meyer et al., supra note 10, at 19–20.
295 Supra note 41–74 and accompanying text (covering current laws and regulations).
296 Supra note 41–74 and accompanying text (covering current laws and regulations).
297 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–30; Meyer et al., supra note
10, at 19–20; supra notes 41–74 and accompanying text (covering current laws and regulations which
include no mandates of that kind).
298 MASS. GEN. LAWS ch. 130, §§ 9, 13, 17, 67, 68, 72, 75 (2018); supra notes 41–74 and
accompanying text (covering current laws and regulations).
299 See 33 U.S.C § 1311(b)(2) (utilizing a best available technology standard to force the use of
environmentally optimal technology).
300 NAT’L OCEANIC & ATMOSPHERIC ADMIN., supra note 1, at 11–30; Meyer et al., supra note
10, at 19–20; see supra notes 272–276 and accompanying text (detailing a hypothetical patent for the
purposes of this Note).
to adapt and utilize the optimal patent in order to continue dredging3.01 The
commercial actor in control of the patent will be forced to use the technology
Enacting a best available technology law will circumvent patent prote
ctions that prevented the utilization of the new technology3.03 Under the new
law, the patent holder must utilize the technology or cease operations, the latter
of which is unlikely. 304 Such a law will not qualify as infringement and will not
violate any patent protections.305
Although an environmental benefit will come from the passage of a best
available technology law, its enactment will essentially hand control of the
Massachusetts commercial shellfishing industry to the patent holder. 306 Due to
patent protections, the holder has sole access to the technolog3y0.7 If other
commercial fishermen attempt to lawfully continue their operations with the
use of the new technology, they will be infringing on the patent3.08 This
infringement will also be intentional, which may lead to treble damages. 309 With
complete control of the mandated technology, the patent holder will enjoy the
benefits of a monopoly and remove all competition.310
This monopoly will be lawful which further adds to the repercussions of
enacting a best available technology law. 311 By simply utilizing the technology
that it owns to achieve control of the commercial shellfishing industry, the patent
holder will not commit any type of anticompetitive activity that would invoke
antitrust law. 312 No market manipulation, pricing control, o r other antitrust viol
ations are likely to occur in this situation because the new law has already elim
inated competition.313 Thus, the patent holder will be in a monopolistic position
that, without antitrust violations, will be uninterrupted and lawful.314
Further, it is unlikely that any patent misuse will occur that will lead to a
suspension of patent protections and an inability to sue for infringement3.15
Misuse is similar to anticompetitive activity, which under current circumstan
ces will not occur. 316 No tying is necessary to build the holder ’s market position,
309 See id. § 284 (stating allowed damages for infringement); i4i Ltd. P’ship v. Microsoft Corp.,
598 F.3d 831, 858 (Fed. Cir. 2010) (stating that willful infringement can lead to and is required to
award treble damages).
310 See United States v. Aluminum Co. of Am., 148 F.2d 416, 424 (2d Cir. 1945)(discussing
what constitutes control of a market); Edison Elec. Light Co., 53 F. at 598 (finding that patent rights
are equal to a lawful monopoly on intellectual property); Monopoly, supra note 206 (defining
monopoly as having control over a market in an area); MILLS ET AL., supra note 128, § 1:6 (stating patents
311 See Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir. 2007) (discussing
unlawful monopolies and anticompetitive conduct which the court “generally defined as conduct to obtain or
maintain monopoly power as a result of competition on some basis other than the merits ”); Dickson v.
Microsoft Corp., 309 F.3d 193, 202, 206, 211 (4th Cir. 2002) (discussing anti-competitive conduct
and anti-monopoly law); United States v. Westinghouse Elec. Corp., 648 F.2d 642, 647 (9th Cir.
1981) (discussing monopolies derived from patents and what categorizes them as lawful or unlawful);
Edison Elec. Light Co., 53 F. at 598 (equating patent rights to a lawful monopoly to the protected
intellectual property); BOURDEAU ET AL., supra note 213, § 1, 2, 46 (discussing monopolies and
what qualifies as unlawful anticompetitive behavior); MILLS ET AL., supra note 128, § 1:6
(discussing the monopoly granted with a patent).
312 See 15 U.S.C. §§ 1–3 (2012) (setting out what qualifies as illegal anticompetitive acts);
BOURDEAU ET AL., supra note 213, §§ 1, 2 (discussing what violates anti-monopoly law).
313 See 15 U.S.C. §§1–3 (setting forth what qualifies as a violation of an-mti onopoly law);
BOURDEAU ET AL., supra note 213, §§ 1, 2 (discussing anti-monopoly law and what constitutes a
314 See 15 U.S.C. §§ 1–3 (setting out what is a violation of an-mti onopoly law); 35 U.S.C.
§ 154(a)(1) (setting out patent rights); BOURDEAU ET AL., supra note 213, §§ 1, 2 (discussing
monopolies and restraint of trade).
315 See Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 490–91, 494 (1942) (holding that
patent misuse can lead to a suspension of patent rights and make an infringement action unavailable);
Frischmann & Moylan, supra note 229, at 867 (stating that patent misuse is a defense to an
316 See 15 U.S.C. §§ 1–3 (containing anti -monopoly law); Olson, supra note 230, at 570– 71
(discussing patent misuse); BOURDEAU ET AL., supra note 213, §§ 1, 2 (discussing monopolies and r
estraint of trade).
and other manipulation is unnecessary because control of the market is already
held.317 Unless a similar or a newer and more efficient patent is introduced that
competes with the holder ’s patent, which leads to an attempt to manipulate the
market to hold control of its monopoly, no misuse is likely to occur.318
Similarly, it is unlikely that an administrative agency or legislative body
will proceed to enact such a law if it will simultaneously disrupt an en tire
industry and create a monopoly for a private entity.319 Meeting the supply and
demand of an entire market overnight, however, is not an easy or relatively
feasible task to accomplish.320 Thus, it is likely that other commercial
shelfishing operations can obtain a license or other form of permission to gain a
ccess to the patented technology.321 As a result, commercial actors already
active in the industry can obtain the ability to utilize the technology and continue
their operations in an environmentally optimal manner. 322 As previously stated,
there is no law or force that can order the patent holder to agree to license or
provide access to others in the industry. 323 Hypothetically, it is unlikely that the
patent holder’s operation alone can fill or even substantially meet the current
output of the industry because it is just one shellfishing operation among many
in Massachusetts. 324 Thus, it would be wiser, both economically and
financially, to grant permission to other commercial operations and profit from agre
ements, sales, or license fees.325
317 See Morton Salt Co,. 314 U.S. at 491 (discussing the lawful monopoly that patent rights
grant); Edison Elec. Light Co., 53 F. at 598 (equating patent rights to a lawful monopoly to the pr
otected intellectual property); MILLS ET AL., supra note 128, § 1:6 (discussing patents and the m
onopoly they provide); Olson, supra note 230, at 570 (defining tying as “the practice of making a sale
or license of a product contingent on the purchase of some other good” and classifying this as patent
318 See Morton Salt Co., 314 U.S. at 491 (discussing that patent rights can be manipulated and
abused to obtain a monopoly, but the monopoly status granted with a patent does not qualify as such
alone); Olson, supra note 230, at 572 (discussing patent misuse and the potential for waiver of
enforcement of patent rights as a result of misuse).
319 See 15 U.S.C. § § 1–3 (setting forth the Sherman Antitrust Act and laws against unlawful m
onopolies); BOURDEAU ET AL., supra note 213, § 1 (discussing the national fear monopolies insight
due to the concentrated economic power that can lead to public harm and exploitation).
320 See Seafood &Human Health, supra note 10 (finding that Americans in 2009 consumed 4.833
billion pounds of seafood and detailing the dietary health benefits).
321 See 35 U.S.C. § 261; eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393 (2006)
(discussing patent licensing that occurs regularly).
322 See 35 U.S.C. § 261 (stating ownership and assignment rights for patent holders); 33 U.S.C.
§ 1311(b)(2) (utilizing a best available technology standard to mandate the use of optimal
323 See 35 U.S.C. § 154(a)(1) (setting out patent rights that are exclusive to the holder).
324 See Lampert, supra note 10, at 1630 (discussing the high value of the seafood industry in the
United States); Seafood & Human Health, supra note 10 (finding that Americans in 2009 consumed
4.833 billion pounds of fish and shellfish).
325 See infra notes 326–352 and accompanying text (arguing for unauthorized shellfisherman to
infringe upon the patent to indirectly force licensing).
D. Infringing to Indirectly Force Licensing
Commercial shell fisherman can also choose to infringe upon the patent
and utilize the technology rather than ceasing operations. 326 By doing so, they
will be intentionally violating the rights of the patent holder which will likely
result in an infringement suit. 327 The holder will likely press for an injunction
to protect its intellectual property interests and its monopoly position32.8 A
court, however, will not automatically grant an injunction unless the holder
meets the requirements of the four-part test.329 A plaintiff must establish that
irreparable harm has been suffered, that remedies at law are insufficient, that
within a balance of hardships, an equitable remedy is justified in fa vor of the
plaintiff, and that the interest of the public will not be harmed from the grant of
an injunction.330 Reviewing the test, the patent holder likely could not fully
meet the requirements and display that it is in a position that necessitates an
The patent holder would likely be unable to establish irreparable harm
because an infringing commercial fisherman is not a direct competitor in the
dredge market. 332 The patent will be infringed upon solely to gain access to the
device to continue its own shellfishing operation which removes it from that
direct market. 333 Further, the patent holder will not lose any of its newly found
dredge market share because its con trol on the market will be unaffected by an
infringer utilizing the patent for its own use. 334 If the patent holder can argue
326 See 35 U.S.C. § 271 (setting forth what qualifies as infringement of a p atent); id. § 283
(granting courts the power to enjoin infringement); id. § 284 (setting out damages for infringement).
327 See id. § 281 (allowing civil actions for infringement); id. § 271 (setting forth what qualifies as
infringement of a patent); eBay, Inc., 547 U.S. at 391 (discussing infringement and the four -part
injunction test); Infringement, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining infringement as
an action that violates the exclusive intellectual property rights of a patent holder).
328 See 35 U.S.C. § 281 (allowing civil actions for infringement); id. § 271 (setting forth what
qualifies as infringement of a patent); Infringement, supra note 327 (defining infringement as an
action that violates the exclusive intellectual property rights of a patent holder).
329 See eBay, Inc., 547 U.S. at 391 (discussing infringement and the four-part injunction test).
330 See id. (setting forth the four parts of the injunction test that need to be satisfied).
331 See id. (setting forth the four -part injunction test); infra notes 332–352 and accompanying text
(arguing that infringement to force licensing of a patent)
332 See Robert Bosch L.L.C. v. Pylon Mfg. Corp., 659 F.3d 1142, 1151, 1153 (Fed. Cir. 2011)
(holding that the patent holder faced irreparable harm from continued infringement because both
parties directly competed in the same market, utilizing the same business plan, which led to a loss of
market share, customers, and sales for the holder); Acumed L.L.C. v. Stryker Corp., 551 F.3d 1323,
1327–28 (Fed. Cir. 2008) (holding that a competitor infringing on a patent leading to a loss of market
share, profits, and sales satisfies the irreparable harm element).
333 See Robert Bosch L.L.C. , 659 F.3d at 1151, 1153 (discussing infringement and the harm from
it due to the patent holder directly competing with the infringer); Acumed L.L.C., 551 F.3d at 1327– 28
(discussing infringement and agreeing that a past grant of a license does not remove the possibility of
future irreparable harm).
334 See Praxair, Inc. v. ATMI, Inc., 479 F. Supp. 2d 440, 443–44 (D. Del. 2007) (requiring
evidence that un-enjoined infringement will lead to a loss in market share, profits, or sales).
that losing its control over the Massachusetts shellfish dredging industry qual
ifies as irreparable harm, the fact that it is unlikely to be able to meet the
demand of the market and match the output of the numerous operators in the i
ndustry will further show that no market share is lost.335 Additionally, prior to
the passage of the new law, the holder did not commercially use the patent due
to business reasons, which further adds to a showing that there is no irrepar
Due to the inability of the patent holder to show irreparable harm, it is
likely that a court will find that monetary damages are adequate to remedy the
infringement.337 Further, the monetary damages that are awarded would likely
be the equivalent of a reasonable royalty that the patent holder could receive if
it had granted a license to infringing commercial fisherman.338 Additionally,
there is no harm within this scenario that cannot be remedied monetarily
because there is no loss of profits, goodwill, or business opportunities that are
more than speculative or feasible. 339 Further, the ability to operate a monopoly
or opportunity to do so is not meaningful to a review under the equitable re
A balance of hardships will likely come out in favor of the infringer
because an injunction will force every commercial shellfishing operation out of
business.341 The lack of irreparable harm and the ability to compensate
monetarily also weigh in favor of the infringer because it is evident that only the
infringer stands to face significant harm. 342 Additionally, allowing the infringer
to utilize the patent in exchange for monetary damages will essentially leave
335 See id. (requiring evidence of a loss of market share to have a possibility of receiving an i
336 See Mercexchange L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 569–72 (E.D. Va. 2007)
(holding that a lack of commercial use and willingness to license can be used as a factor in determining the
irreparable harm element, but cannot be used as a categorical denial for an equitable remedy).
337 See Praxair, Inc., 479 F. Supp. 2d at 444 (denying an injunction for an infringement action
and holding that monetary damages are adequate to compensate the patent holder due to an inability to
show irreparable harm).
338 See 35 U.S.C. § 284 (stating that monetary damages should relate to the value of a reasonable
royalty owed on a license of the intellectual property); eBay, Inc., 547 U.S. at 391. (discussing
monetary damages as an appropriate award when the factors required for injunctive relief are unsatisfied).
339 See Praxair, Inc., 479 F. Supp. 2d at 443–44 (requiring evidence that un-enjoined
infringement will lead to a loss in market share, profits, or sales).
340 See eBay, Inc., 547 U.S. at 391 (setting forth the fou-rpart test to obtain injunctive relief);
Praxair, Inc., 479 F. Supp. 2d at 444 (dismissing evidence of potential monopoly status as irrelevant
to determining whether an injunction is warranted).
341 See Mercexchange L.L.C. , 500 F. Supp. 2d at 583–84 (discussing a balance of hardships
concerning a potentially willful infringer utilizing a patent for its core business and finding that monetary
damages are suitable as opposed to an injunction).
342 See Acumen L.L.C., 551 F.3d at 1329–30 (balancing the hardships in favor of the infringer
who will be the only party to realistically face harm from an injunction, and ruling that monetary
damages are adequate to remedy the situation).
the entire industry as it was prior to the enactment of the new law, which is
favorable to both sides.343
Upholding intellectual property protections and keeping the patent system
intact truly benefits the public. 344 The public’s interest, however, is best served
with the denial of an injunction in this scenario. 345 If the infringing commercial
operations are enjoined from utilizing the mandated dredge they will be forced
to cease operations which will effectively put every shellfisherman out of work
and harm the local and state economy.346 Further, if the enjoined operations
wanted to continue they would need to develop a dredge that is more efficient
than the current environmentally optimal version which is costly and likely
unachievable given their resources. 347 An injunction will also solidify the p
atent holder’s monopoly on the local dredge and shellfish market that can be
detrimental to the public.348 There are no alternatives to the environmentally
optimal dredge and with an injunction, the patent holder will be the sole pr
ovider which opens the door to public harm through price manipulation and the
destruction of competition.349
This option, if licensing or other methods of permitting use of the patent are
unexercised, is the best course of action for commercial shell fisherman without
343 See id. (discussing that an injunction will only stop the infringer from utilizing a patent in an
industry shared with the patent holder and will not benefit the holder in any meaningful way).
344 See Mercexchange L.L.C., 500 F. Supp. 2d at 586–87 (recognizing the public benefit to a
strong patent system while discussing the public interest part of the injunction test).
345 See id. (holding that the public interest is best served by allowing a multi -billion dollar corp
oration to infringe on the patent of a two person corporation and pay monetary damages due to the
numerous benefits the public reaps from the infringers ongoing operations).
346 See 33 U.S.C. § 1311(b)(2) (utilizing a best available technology standard to require the use of
certain technology); 35 U.S.C. § 154(a)(2) (setting forth a twenty year time period that patent
protections are active until they expire and the intellectual property is released to the public); id. § 261
(stating that patents are to be treated as personal property); Mercexchange L.L.C., 500 F. Supp. 2d at 586–
87 (allowing monetary damages to remedy infringement for the benefit of the public); EARNHART ET
AL., supra note 260, at 36–37 (discussing the utilization of best available technology standards).
347 See 33 U.S.C. § 1311(b)(2) (utilizing a best available technology standard to mandate the use
of environmentally optimal technology); Praxair, Inc., 479 F. Supp. 2d at 443 (discussing a situation
where an injunction would force significant financial and operational harm to an infringer and its
customers and favoring the infringer due to the circumstances); EARNHART ET AL., supra note 260, at
36–37 (discussing optimal technology mandating laws); Learn About Effluent Guidelines , supra note
30 (discussing best available technology laws and the function of the standard).
348 See 35 U.S.C. § 283 (stating that a court reviewing an infringement action “may grant injun
ctions in accordance with the principles of equity to prevent the violation of any right secured by
patent, on such terms as the court deems reasonable. ”); Acumen L.L.C., 551 F.3d at 1330–31 (holding
that situations can arise where the public’ s interest can weigh heavily in a court’ s decision of whether
to issue an injunction).
349 See 35 U.S.C. § 283 (stating that a court has discretion in whether to issue an injunction);
Acumen L.L.C., 551 F.3d at 1330–31 (discussing alternatives to an infringing medical device that is
important to the welfare of the public and focusing on the publics’ interest); BOURDEAU ET AL.,
supra note 213, § 1 (discussing monopolies and harm they pose to the public).
access to the technology. 350 An award of damages will likely be an amount equal
to a reasonable royalty that would be obtained by the patent holder if theyi-l
censed the technology. 351 Thus, between these two options, the patent holder will
either license the technology to its competition and profit, or be indirectly forced
to license the technology after a court refuses to grant an injunction.352
By enacting a best available technology law, the Commonwealth of Ma
ssachusetts can force the use ofan environmentally optimal patent. The new
law will force the patent holder to utilize the technology they own which will
lead to environmental benefits such as a drop in shellfish mortality rates and
less destruction of the environment. The law, however,will create a lawful
monopoly for the patent holder who, overnight, will control the entire
shelfishing industry in Massachusetts. The monopoly will not face antitrust scrut
iny and the patent is unlikely to be misused in these circumstances. Other
commercial shellfishing operations that do not have access to the technology
are prevented from freely utilizing the technology because of the patent hol
der’s intellectual property rights. Market and financial forces may lead to the
patent holder licensing, selling, or granting access to the patent to its compet
itors, but there is no legal force commanding this action. Any attempt to utilize
the patent without permission will likely result in an infringement suit where
the holder will seek an injunction to prevent the use of its technology. The
court, however, is unlikely to grant an injunction given the circumstance of the
situation. The elements required cannot be satisfied which will result in an
award of damages. The amount of the award will compensate the pat ent holder
appropriately and provide them with a reasonable royalty going forward. Thus,
the patent holder has two options, license the technology or be forced to do so
through an infringement suit resulting in a monetary award.
This scenario can be applie d to other examples where an environmentally
optimal patent is not utilized and hidden behind patent protections. Rumors of
an environmentally optimal dredge sparked the writing of this Note. Other r
umors, with varying degrees of truth, claim that patentedinventions that can
benefit the environment are purchased and locked away. Claims of oil comp
a350 See eBay, Inc., 547 U.S. at 391 (setting forth the four -part injunction test and recognizing the
equitable discretion a court has in their issuance) ; supra notes 326–349 and accompanying text
(arguing that infringement will indirectly force the licensing of the patent).
351 See eBay, Inc., 547 U.S. at 391 (setting forth the four -part injunction test and recognizing the
equitable discretion a court has in their issuance) ; supra notes 326–349 and accompanying text
(arguing that infringement will indirectly force the licensing of the patent).
352 See eBay, Inc., 547 U.S. at 391 (setting forth the four-part injunction test and recognizing the
equitable discretion a court has in their issuance) ; supra notes 326–349 and accompanying text
(arguing that infringement will indirectly force the licensing of the patent).
nies purchasing clean technology to protect its interests or medical companies
hiding advanced treatment methods to sustain its profits are widespread. If
technology of this kind exists and the patent is located, the argument set forth
in this Note is one way to bring its benefits to the public.
130 U.S. CONST. art. 1 , § 8, cl. 8 ( “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries .”); MILLS ET AL., supra note 128 , § 1:4 (discussing the constitutional clause and related patent laws derived from the power ).
131 See 35 U.S.C. § 154(a)(1) ( 2012 ) (stating that every patent shall provide the holder with time limited exclusion rights to prevent others from utilizing what it contains without permission); id. § 261 (stating that patents come with the same rights as personal property); MILLS ET AL., supra note 128 , § 1:4 (discussing the rights granted with a patent).
132 35 U.S.C. § 154(a)(1); MILLS ET AL., supra note 128 , § 1 : 4 .
133 35 U.S.C. § 154(a)(1) (setting forth the right to exclude others from utilizing the holder 's intellectual property); MILLS ET AL., supra note 128 , § 1:4 (discussing the rights and protections co nveyed with a patent).
134 Thomas & Betts Corp . v. Panduit Corp., 138 F.3d 277 , 284 ( 7th Cir . 1998 ); see W. Elec. Co. v. Milgo Elec . Corp., 190 U.S.P.Q. (BNA) 546 , 549 , 1976 WL 21189, *4 ( S.D. Fla . 1976 ) (discussing the various protection and benefits of patents); MILLS ET AL., supra note 128 , § 1 : 2 , 1 :4 (discussing patent rights and protections ).
135 See Thomas & Betts Corp ., 138 F. 3d at 284 (discussing the requirement that a patent seeker make an adequate and full disclosure of the invention to receive the patent); Foster Wheeler Corp . v. Babcock & Wilcox Co., 512 F. Supp . 792 , 801 (S.D.N .Y. 1981 ) (discussing the adequacy of information disclosed in a patent filing); MILLS ET AL., supra note 128 , § 1:2 (discussing patent protections, policies, and the benefits to the public) .
136 See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327 , 330 - 31 ( 1945 ) (stating that the primary purpose of a patent is the advancement of science through disclosure);MILLS ET AL., supra note 128 , § 1:2 (discussing patent protections and policies ).
137 Aronson v. Quick Point Pencil Co. , 440 U.S. 257 , 262 ( 1979 ) ; MILLS ET AL., supra note 128 , § 1 : 2 .
138 Aronson, 440 U.S. at 262; MILLS ET AL., supra note 128 , § 1 : 2 .
139 See Aronson , 440 U.S. at 262 ( stating that the purpose of the patent system is to foster innov ation and advancement); Sinclair & Carroll Co ., 325 U.S. at 330-31 ( stating that the purpose of the patent system is the advancement of science, technology , and society); W. Elec. Co., 190 U.S.P.Q.
162 Id. § 281 .
163 Id. §§ 271 , 283 , 284 .
164 Id. § 284 .
165 i4i Ltd. P'ship v . Microsoft Corp., 598 F.3d 831 , 858 (Fed. Cir. 2010 ).
166 See Sanofi-Synthelabo v . Apotex, Inc., 470 F.3d 1368 , 1372 - 73 (Fed. Cir. 2006 ) (upholding the grant of an injunction that prevented further infringement of a patented invention);Injunction, BLACK'S LAW DICTIONARY (10th ed. 2014 ).
167 MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323 , 1339 ( 2005 ).
168 35 U.S.C. § 283 (stating that a court may grant an injunction for infringement in accordance with the principles of equity); eBay, Inc . v. MercExchange, L.L.C. , 547 U.S. 388 , 391 ( 2006 ) (stating that injunctive relief sought under the Patent Act is subject to the equitable discretion of the district court ).
169 eBay, Inc., 547 U.S. at 391.
173 See id . at 391 , 394 (setting out the test to be applied, but not providing any bright line standards for the application of the test) .
174 Id. at 394 ( “[W] e take no position on whether permanent injunctive relief should or should not issue in this particular case, or indeed in any number of other disputes arising under the Patent Act . We hold only that the decision whether to grant or deny injunctive relief rests within the equitable
204 Id. at 1331.
205 Edison Elec . Light Co. v. Sawyer-Man Elec . Co., 53 F. 592 , 598 ( 2d Cir . 1892 ) ; MILLS ET AL., supra note 128 , § 1 : 6 .
206 Monopoly, BLACK'S LAW DICTIONARY (10th ed. 2014 ); Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust , 90 COLUM . L. REV. 1805 , 1810 - 12 ( 1990 ) (discussing what constitutes a monopoly and the characteristics of one within an industry) .
207 JOHN BOURDEAU ET AL., 54A AMERICAN JURISPRUDENCE: MONOPOLIES AND RESTRAINTS OF TRADE § 770 (2d ed. 2016 ). A monopoly is created through the elimination of compet ition and develops from the concentration of a business or market into the control of an entity . Id . See generally U.S. DEP'T OF JUSTICE, COMPETITION AND MONOPOLY: SINGLE-FIRM CONDUCT UNDER SECTION 2 OF THE SHERMAN ACT ( 2008 ), https://www.justice.gov/sites/default/files/ atr/legacy/2009/05/11/236681.pdf [https://perma.cc/9YY9-KVBY] (discussing the Sherman Anti-Trust Act, monopolies, and anti-competitive conduct).
208 BOURDEAU ET AL., supra note 207 , § 770 . Price control, if abused, allows the controlling entity to set prices as they see fit, which will likely coincide with maximizing profits. See id. (stating that price control is harmful to the public); Monopoly and Competition , ENCYCLOPÆDIA BRITANNICA (Aug. 25 , 2014 ), https://www.britannica.com/topic/monopoly-economics [https://perma.cc/5TK9- RRU8] (discussing monopolies and their ability to set prices and maximize profits). Essentially, if the product is vital, a controlling entity can overcharge and exploit the public . See Peoples Savs. Bank v. Stoddard , 102 N.W.2d 777 , 793 ( 1960 ) (“Monopoly may be said to be the result of the practical eli mination of effective business competition which thereby creates a power to control prices to the harm of the public .”); BOURDEAU ET AL., supra note 207 , § 770 ( discussing price control and public harm).
209 United States v. Aluminum Co. of Am., 148 F.2d 416 , 424 ( 2d Cir . 1945 ) (stating that control over ninety percent of a market is enough to constitute a monopoly, but around sixty percent is questionable, and thirty-three percent is not enough ); Monopoly, supra note 206.
210 Aluminum Co . of Am., 148 F.2d at 424. (4th Cir . 2002 );E.J. Delaney Corp. v. Bonne Bell, Inc., 525 F.2d 296 , 302 ( 10th Cir . 1975 ) ; BOURDEAU ET AL., supra note 213 , § 46 .
224 Broadcom Corp . v. Qualcomm Inc., 501 F.3d 297 , 308 ( 3d Cir . 2007 ); Dickson, 309 F.3d at 202 , 206, 211; BOURDEAU ET AL., supra note 213, at § 1 , 2 , 46 .
225 Broadcom Corp ., 501 F.3d at 297 , 308; Dickson, 309 F.3d at 202 , 206, 211; BOURDEAU ET AL., supra note 213, §§ 1 , 2 , 46 .
226 Edison Elec . Light Co., 53 F. at 598; MILLS ET AL., supra note 128 , § 1 : 6 .
227 United States v. Westinghouse Elec. Corp., 648 F.2d 642 , 647 ( 9th Cir . 1981 ).
228 B. Braun Med . Inc. v. Abbott Labs., 124 F.3d 1419 , 1427 (Fed. Cir. 1997 ).
229 Brett M. Frischmann & Dan Moylan, The Evolving Common Law Doctrine of Copyright Mi suse: A Unified Theory and Its Application to Software, 15 BERKELEY TECH. L.J. 865 , 867 ( 2000 ).
230 David S. Olson , First Amendment Based Copyright Misuse , 52 WM. & MARY L. REV . 537 , 570 ( 2010 ).
231 Morton Salt Co. v. G.S. Suppiger Co ., 314 U.S. 488 , 490 , 494 ( 1942 ).
232 Id. at 491.
233 Id. at 490-491.
234 Frischmann & Moylan, supra note 229, at 868.
235 Olson, supra note 230, at 571.
236 Patent Misuse Reform Act , 102 Stat. 4676 ( 1988 ) (codified at 35 U.S.C§. 271(d)(4)-(5) ( 2012 )); Olson, supra note 230, at 572.
274 See NAT'L OCEANIC & ATMOSPHERIC ADMIN ., supra note 1 , at 11-30 (discussing the negative physical, chemical, and biological impact of dredging ); Meyer et al., supra note 10 , at 18-20 ( detailing dredge performance).
275 See NAT'L OCEANIC & ATMOSPHERIC ADMIN ., supra note 1 , at 11-30 (detailing the negative impact of dredging on the environment ); Meyer et al., supra note 10 , at 18-20 (detailing the performance of current dredges); Seafood & Human Health, supra note 10 (discussing U.S. seafood consumption).
276 See 35 U.S.C. § 154(a)(1) (setting forth a patent holders rights which does not include any duty to utilize the protected intellectual property); id. § 261 (stating that patents are treated as personal property); NAT'L OCEANIC & ATMOSPHERIC ADMIN ., supra note 1 , at 11-30 (detailing the environmental harm caused by dredging ); Meyer et al., supra note 10 , at 18-20 (detailing the issues with current dredges).
277 See 33 U.S.C. § 1311 ( b)(2) ( 2012 ) (requiring the use of the best available technology that is economically achievable in the establishment of performance standards); 35 U .S.C. § 154(a)(1) (setting forth patent rights); supra notes 240-266 and accompanying text (discussing best available tec hnology standards).
278 See 35 U.S.C. § 154(a)(1) (setting forth the rights of a patent holder, which does not include any mandate to utilize the intellectual property ).
279 Id.; supra notes 125-204 and accompanying text (discussing patent law and policy ).
280 35 U.S.C. § 154(a)(1); supra notes 125-204 and accompanying text (discussing patent law and policy ).
281 See Aronson v. Quick Point Pencil Co. , 440 U.S. 257 , 262 ( 1979 ) (discussing the benefits of patent law and its impact in providing a public benefit); Sinclair & Carroll Co . v. Interchemical Corp., 325 U.S. 327 , 330 - 31 ( 1945 ) (stating that the purpose of the U.S. patent system is to foster innovation and the advancement of technology); Seymour v . Osborne , 78 U.S. ( 11 Wall.) 516 , 533 - 34 ( 1870 ) (stating that the purpose of patents are to produce a public benefit from new inventions while securing a benefit for the inventor by offering protections).
282 See Aronson , 440 U.S. at 262 (discussing the balanced benefits of the patent system); Sinclair & Carroll Co ., 325 U.S. at 330-31 (discussing the public benefit gained from the patent system);
283 See Aronson , 440 U.S. at 262 ( stating that the patent system fosters innovation and advancement); Sinclair & Carroll Co ., 325 U.S. at 330- 31 (discussing the benefits patents provide society ); Seymour, 78 U.S. ( 11 Wall.) at 533-34 ( stating that the patent system facilitates progress).
284 See 35 U.S.C. § 154(a)(1) (stating the rights of a patent holder, which contains no mandate to utilize the invention ); W. Elec. Co. v. Milgo Elec. Corp., 190 U.S.P.Q. (BNA) 546 , 549 (S.D. Fla . 1976 ) (stating that a patent holder has sole control over the invention); MILLS ET AL., supra note 128 , § § 1:2, 1:4 (discussing the rights of a patent holder which does not include any mandate to practice a patent).
285 See 35 U.S.C. § § 154(a)(1), 261 (setting forth the rights of a patent holder); W . Elec. Co., 190 U.S.P.Q. ( BNA) at 549 (stating that a patent holder has exclusive rights to the invention); MILLS ET AL., supra note 128 , § § 1:2, 1:4 (discussing the rights of a patent holder).
286 See 35 U.S.C. § § 154(a)(1), 261 (stating that the rights of patent holder to the protected intellectual property is the same as personal property rights ); W. Elec. Co., 190 U.S.P.Q. ( BNA) at 549 (stating that a patent grants a holder all benefits to the invention);MILLS ET AL., supra note 128 , § § 1:2, 1:4 (discussing all of the property rights of a patent holder).
287 See 35 U.S.C. § § 154(a)(1), 261 (allowing a patent holder to simply hold intellectual property and never utilize it ); W. Elec. Co., 190 U.S.P.Q. ( BNA) at 549 (stating that patented intellectual pro perty is solely owned by the holder who may choose not to use it in any way); MILLS ET AL., supra note 128 , § § 1:2, 1:4 (discussing patent rights which allow non-use of intellectual property).
288 See 35 U.S.C. § 261 (stating that patents shall share the same rights as personal property, which allows them to simply hold the patent and never utilize it ); W. Elec. Co., 190 U.S.P.Q. ( BNA) at 549 (stating that patent holders have exclusive ownership over their intellectual property and can exclude anyone from utilizing it); MILLS ET AL., supra note 128 , § § 1:2, 1:4 (discussing patent rights and stating that a holder can utilize the intellectual property how they see fit and exclude others).
289 See 35 U.S.C. § 154(a)(1) (setting out a patent holder's ability to exclude others); id. § 271 (setting out what qualifies as patent infringement).
290 See id. § 271 ( setting out what actions qualify as patent infringement);id § 281 (providing patent holders with the ability to bring a civil action for infringement to enforce their patent rights); id § 283 (stating that infringement actions can result in injunctive relief); id § 284 (detailing the available monetary damages available for an infringement claim ).
301 See 33 U.S.C § 1311 ( b)(2) (utilizing a best available technology standard); EARNHART ET AL., supra note 260 , at 36-37 ( discussing laws that mandate a standard) ; Learn About Effluent Guidelines , supra note 30 (discussing standards that mandate use of a specific technology); supra notes 240-266 and accompanying text (discussing best available technology laws).
302 See 33 U.S.C § 1311 ( b)(2) (utilizing a best available technology standard); EARNHART ET AL., supra note 260 , at 36-37 ( discussing laws that mandate a standard) ; Learn About Effluent Guidelines , supra note 30 (discussing standards that mandate use of a specific technology); supra notes 240-266 and accompanying text (discussing best available technology laws).
303 See 35 U.S.C. § 154(a)(1) (setting forth patent rights); id. § 261 (stating a patent holder 's ownership and assignment rights); 33 U .S.C. § 1311 (utilizing a best available technology law standard to force the use of optimal technology); EARNHART ET AL., supra note 260 , at 36-37 ( discussing laws that mandate a standard) ; supra notes 240-266 and accompanying text (discussing best available technology laws). A due process claim may be brought by the patent holder or those affected within the industry, however, the situation and hypothetical facts that this Note relies on mitigate this possibility . Due Process , BLACK'S LAW DICTIONARY (10th ed. 2014 ); Due Process , LEGAL INFO. INST. (Mar. 2 , 2018 ), https://www.law.cornell.edu/wex/due_process [https://perma.cc/M747-N9B2].
304 See 33 U.S.C. § 1311 (utilizing a standard to mandate the use of certain technology in order to operate lawfully); EARNHART ET AL ., supra note 260 , at 36- 37 ( discussing mandates that force the use of optimal technology) ; supra notes 240-266 and accompanying text (discussing best available technology laws).
305 See 35 U.S.C. § 154(a)(1) (setting out patent rights); id. § 271 (defining what constitutes patent infringement) . This is not infringement or a violation of patent rights because the law will not force the utilization of the technology, it will only induce it as the choice to simply just hold the intellectual property still remains . See id. § § 154(a)(1), 271 (detailing patent rights and infringement ).
306 See id. § 154 ( a)(1) (detailing patent rights and the right to exclude others from utilizing the intellectual property); Edison Elec . Light Co. v. Sawyer -Man Elec . Co., 53 F. 592 , 598 ( 2d Cir . 1892 ) (equating a patent to a monopoly to intellectual property); MILLS ET AL., supra note 128 , § 1:6 (stating that patents are monopolies).
307 See 35 U.S.C. § 154(a)(1); Edison Elec . Light Co., 53 F. at 598; MILLS ET AL., supra note 128 , § 1 : 6 .
308 See 35 U.S.C. § 271 (setting forth what qualifies as infringement).