Fracking Patents: The Emergence of Patents as Information-Containment Tools in Shale Drilling

The advantages of new sources of energy must be weighed against environmental, health, and safety concerns related to new production technology. The rapid development of unconventional oil and gas fields, such as the Barnett and Marcellus Shales, provide an excellent context for these contrasting goals. Information about extraction hazards is an extremely important issue. In general, patents are viewed as a positive force in this regard, providing a vehicle for disseminating information in exchange for a limited property right over an invention.

However, by limiting the evaluation of an invention by third parties, patents might also be used to control the creation of new information. Such control is more likely in situations where third-party use and assessment may produce information damaging to the patent owner. This Article explores the relationship between patents and information control in the context of natural gas extraction. Understanding the role of a patent as an information-control mechanism is critical to the safe employment of new technology.

If patents substantially limit information creation or disclosure, government intervention may be necessary to permit non-patentee experimental use along with environmental, health, and safety testing. Before patent rights are encumbered, however, options that exist under current law should be considered.