A Study on the Restriction of Patent Rights in Ecological Restoration in Western China under the Principle of "Polluter Pays" in Environmental and Resource Law

DOI: https://doi.org/10.62517/jel.202614503

Author(s)

Anqier Wang

Affiliation(s)

School of Law, Xinjiang University of Finance and Economics, Urumqi, Xinjiang, China

Abstract

"Liability for Damage," as a fundamental principle of China's environmental and resource law, no longer functions solely as a criterion for determining responsibility; it also extends to how ecological restoration can be effectively implemented. In ecological restoration projects in the western regions, those who cause damage are often required to restore the damaged ecosystem to its baseline state. This obligation is set by law, is mandatory, and in principle cannot be simply replaced by monetary compensation. In reality, however, restoration projects heavily rely on core environmental protection technologies, which are often covered by the exclusive rights of environmental patents. If the patent holder refuses to license or sets excessively high licensing terms, restoration costs increase, the restoration timeline may be delayed, and effective judgments can even fall into a deadlock of "having technology but unable to afford it, having a judgment but unable to implement it." Faced with this conflict, this article no longer regards traditional compulsory licensing as the only solution. Instead, it bases its approach on the legal principle of "liability for damage," combining theories of ecological restoration and the socialization of green technology patents, to demonstrate the independent legitimacy of imposing restrictions on relevant patent rights. The article then examines the limitations of existing systems such as patent compulsory licensing, government use, and judicial coordination in the western context, while also drawing on foreign experiences such as the U.S. "government use" provision and Germany's theory of the primacy of public law obligations. On this basis, it proposes a special compulsory licensing procedure aimed at restoration, FRAND commitments for essential restoration technologies, and a dual-mode judgment model of "compulsory restoration action + determination of reasonable compensation," striving to balance ecological public interest protection with intellectual property incentives.

Keywords

Polluter Pays; Ecological Restoration; Patent Right Restriction; Compulsory Licensing; Ecological Governance in Western China

References

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