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Reduce, reuse, recycle, register?

As more companies create and market products made using recycled materials, inventors may wonder how they can protect their investment in the development of such products.

Patent concept art

Consumer interest in the use of recycled materials, so-called recyclates, is on the rise. Indeed, the perceived sustainability of a product or brand is playing an increasingly important role in purchasing decisions, as evidenced by one global marketing research firm predicting sales of sustainable products to reach up to $150 billion in the U.S. by 2021.

Using recycled materials in products is just one way companies can reduce their impact on the environment, and as GreenBiz readers are well aware, this practice has been growing across a surprising breadth of industries.

Patagonia, for example, recently declared that 68 percent of its offerings use recycled materials. Similarly, activewear brand Salomon announced that it would bring to the market in 2021 a fully recyclable and part recycled running shoe. In automobile manufacturing, Jaguar Land Rover has committed to using Econyl yarn — a recycled nylon created by Aquafil — to make its floor mats and trims. Elsewhere, Audi, part of the Volkswagen Group, introduced the "Aluminum Closed Loop" process to one of its sites in 2017, and intends to expand the use of this aluminum recycling process to other sites in the near future. 

As more companies innovate products made using recycled materials, and the value proposition of using recycled materials transitions into a consumer expectation, innovators may wonder how they can protect their investment in the development of such products. Moreover, as companies seek to collaborate to tackle sustainability challenges, they may wonder how they can ensure collaborators share their key values and adhere to sustainable practices with their commercial activities.

Protecting inventions with patents can assist with these aims, but innovators may be skeptical of being able to obtain patent protection for products that are made using recycled materials — materials that in many cases are, by definition, not new. With these considerations in mind, we reflect on some opportunities available to innovators to protect their inventions by registering for patent protection.

Patentable innovations can be divided broadly into products, such as a shoe incorporating a recycled material, or processes, such as a process of making a shoe using a recycled material. In order to be patentable, globally harmonized patent law requires innovations to be new and involve an inventive step.

As a matter of principle, innovations that use a recycled material are certainly capable of patent protection.

As a matter of principle, innovations that use a recycled material are certainly capable of patent protection; there is even a whole class of patents that encompass the chemical production or processing of goods in which the feedstock is a recycled material. And, according to a leading patent database, from 2015 — the year in which the landmark Paris Agreement was adopted — to 2019, the number of patents published per year in this class increased by approximately 40 percent.

Whether a product made using recycled materials is new compared to an otherwise identical product made using virgin-based materials is an interesting question, and generally will depend on the facts. 

Is the recycled material, for example, materially different from the virgin-based material and can this difference be characterized? It is well-known that fibrous materials, such as pulp, once recycled often have shorter fiber lengths, resulting in different bulk properties from virgin-based materials.

Perhaps the difference in properties between recycled material and virgin-based material presents a unique challenge that requires an inventive solution? On the other hand, it may be impossible to differentiate between the recycled material and the virgin-based material, and by extension, a product made using the recycled material and an otherwise identical product made using the virgin-based material. In which case it is very likely that it would be difficult to obtain patent protection for a product. Even in such a case, patentable innovation may be found in a new process.

The pursuit of using recycled materials also may result in companies replacing a virgin-based material in a product with a different recycled material, possibly resulting in a new end product.

For example, Suga produces yoga mats made using recycled neoprene, whereas yoga mats are most commonly made using polyvinyl chloride. In such cases, the use of a different, recycled material instead of a virgin-based material to make the product may provide some unexpected advantages, or present some complex challenges to address, possibly leading to an inventive solution that merits patent protection.

The journey to create a new product may have involved other steps of innovation, such as in the case of Suga developing new ways to recycle neoprene. Certainly, companies such as Aquafil have been very successful in inventing new ways of recycling materials and collaborating with other companies to create new products using the recycled materials.

As mentioned, Aquafil’s Econyl nylon yarn is intended to be used by Jaguar Land Rover. It already has been used by global brands such as Prada, H&M and Mercedes-Benz. Such new recycling processes may certainly warrant patent protection; Aquafil has a portfolio of patents and applications relating to different aspects of the Econyl process. 

Actually, the technology area of chemical recycling — the Econyl process is one example — appears to be flourishing, with the number of patents published per year relating to such technologies approximately doubling from 2015 to 2019, according to a leading patent database.

The success of companies such as Aquafil suggests viable ways forward for products that could reduce their impact on the environment through reusing materials rather than using virgin raw materials. Crucially, it seems possible that such innovative solutions could take a commercial competitive advantage over products made using virgin-based materials, perhaps reinforced by suitable patent protection.

As innovation in sustainable technology continues to thrive, I have hope that new inventions will help to drive us towards an improved future.

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