Patent

From Wikipedia, the free encyclopedia

 

U.S. patent

 

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling, and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. In most countries patent rights fall under civil law and the patent holder needs to sue someone infringing the patent in order to enforce his or her rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.

The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness.

Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO member states for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application. Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years.

Definition

The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents, which were land grants by early state governments in the USA, and printing patents, a precursor of modern copyright. 

In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US, plant breeders' rights are sometimes called plant patents, and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents.

The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.

History

The Venetian Patent Statute, issued by the Senate of Venice in 1474, and one of the earliest statutory patent systems in the world.

 

Although there is some evidence that some form of patent rights was recognized in Ancient Greece in the Greek city of Sybaris, the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. Patents were systematically granted in Venice as of 1474, where they issued a decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.

The English patent system evolved from its early medieval origins into the first modern patent system that recognised intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish. By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies. After public outcry, King James I of England (VI of Scotland) was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere.

James Puckle's 1718 early autocannon was one of the first inventions required to provide a specification for a patent.

 

Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne, patent applications were required to supply a complete specification of the principles of operation of the invention for public access. Legal battles around the 1796 patent taken out by James Watt for his steam engine, established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented. Influenced by the philosophy of John Locke, the granting of patents began to be viewed as a form of intellectual property right, rather than simply the obtaining of economic privilege. 

The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.

U.S. patents granted, 1790–2010.

 

The modern French patent system was created during the Revolution in 1791. Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844 - patent cost was lowered and importation patents were abolished. 

The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts". The first patent under the Act was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision to the patent law was passed. The 1836 law instituted a significantly more rigorous application process, including the establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted.

Law

Effects

A patent does not give a right to make or use or sell an invention. Rather, a patent provides, from a legal standpoint, the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date subject to the payment of maintenance fees. From an economic and practical standpoint however, a patent is better and perhaps more precisely regarded as conferring upon its proprietor "a right to try to exclude by asserting the patent in court", for many granted patents turn out to be invalid once their proprietors attempt to assert them in court. A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.

A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent. If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.

Some countries have "working provisions" that require the invention be exploited in the jurisdiction it covers. Consequences of not working an invention vary from one country to another, ranging from revocation of the patent rights to the awarding of a compulsory license awarded by the courts to a party wishing to exploit a patented invention. The patentee has the opportunity to challenge the revocation or license, but is usually required to provide evidence that the reasonable requirements of the public have been met by the working of invention.

Challenges

In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called opposition proceedings. It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that the patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not patentable subject matter at all; the claimed subject matter was actually not new, or was obvious to experts in the field, at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons.

Infringement

Patent infringement occurs when a third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a nation by nation basis. The making of an item in China, for example, that would infringe a U.S. patent, would not constitute infringement under US patent law unless the item were imported into the U.S.

Enforcement

Patents can generally only be enforced through civil lawsuits (for example, for a U.S. patent, by an action for patent infringement in a United States federal court), although some countries (such as France and Austria) have criminal penalties for wanton infringement. Typically, the patent owner seeks monetary compensation for past infringement, and seeks an injunction that prohibits the defendant from engaging in future acts of infringement. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (In many jurisdictions the scope of the patent may not be limited to what is literally stated in the claims, for example due to the doctrine of equivalents). 

An accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim. A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for patentability in the relevant country. Although an infringer is generally free to rely on any available ground of invalidity (such as a prior publication, for example), some countries have sanctions to prevent the same validity questions being relitigated. An example is the UK Certificate of contested validity. 

Patent licensing agreements are contracts in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, and/or import the claimed invention, usually in return for a royalty or other compensation. It is common for companies engaged in complex technical fields to enter into multiple license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to share the benefits of using each other's patented inventions.

Ownership

In most countries, both natural persons and corporate entities may apply for a patent. In the United States, however, only the inventor(s) may apply for a patent although it may be assigned to a corporate entity subsequently and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company.

The plate of the Martin ejector seat of a military aircraft, stating that the product is covered by multiple patents in the UK, South Africa, Canada and pending in "other" jurisdictions. Dübendorf Museum of Military Aviation.

 

The inventors, their successors or their assignees become the proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor(s).

The ability to assign ownership rights increases the liquidity of a patent as property. Inventors can obtain patents and then sell them to third parties. The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves.

Governing laws

The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are granted by national or regional patent offices. A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. When a patent application is published, the invention disclosed in the application becomes prior art and enters the public domain (if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally becoming prior art against anyone (including the applicant) who might seek patent protection for the invention in those countries.

Commonly, a nation or a group of nations forms a patent office with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts. 

The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended. In the United States, the Constitution empowers Congress to make laws to "promote the Progress of Science and useful Arts..." The laws Congress passed are codified in Title 35 of the United States Code and created the United States Patent and Trademark Office.

There is a trend towards global harmonization of patent laws, with the World Trade Organization (WTO) being particularly active in this area. The TRIPS Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPS agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

Internationally, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) [constituting the European Patent Organisation (EPOrg)], that centralize some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO and OAPI, the analogous treaties among African countries, and the nine CIS member states that have formed the Eurasian Patent Organization. A key international convention relating to patents is the Paris Convention for the Protection of Industrial Property, initially signed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The most significant aspect of the convention is the provision of the right to claim priority: filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application.

Application and prosecution

A patent is requested by filing a written application at the relevant patent office. The person or company filing the application is referred to as "the applicant". The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention. In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided. 

The application also includes one or more claims that define what a patent covers or the "scope of protection".

After filing, an application is often referred to as "patent pending". While this term does not confer legal protection, and a patent cannot be enforced until granted, it serves to provide warning to potential infringers that if the patent is issued, they may be liable for damages.

Once filed, a patent application is "prosecuted". A patent examiner reviews the patent application to determine if it meets the patentability requirements of that country. If the application does not comply, objections are communicated to the applicant or their patent agent or attorney through an Office action, to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an opposition proceeding between grant and issuance, or post-issuance.

Once granted the patent is subject in most countries to renewal fees to keep the patent in force. These fees are generally payable on a yearly basis. Some countries or regional patent offices (e.g. the European Patent Office) also require annual renewal fees to be paid for a patent application before it is granted.

Costs

The costs of preparing and filing a patent application, prosecuting it until grant and maintaining the patent vary from one jurisdiction to another, and may also be dependent upon the type and complexity of the invention, and on the type of patent. 

The European Patent Office estimated in 2005 that the average cost of obtaining a European patent (via a Euro-direct application, i.e. not based on a PCT application) and maintaining the patent for a 10-year term was around €32,000. Since the London Agreement entered into force on May 1, 2008, this estimation is however no longer up-to-date, since fewer translations are required.

In the United States, in 2000 the cost of obtaining a patent (patent prosecution) was estimated to be from $10,000 to $30,000 per patent. When patent litigation is involved (which in year 1999 happened in about 1,600 cases compared to 153,000 patents issued in the same year), costs increase significantly: although 95% of patent litigation cases are settled out of court, those that reach the courts have legal costs on the order of a million dollars per case, not including associated business costs.

Alternatives

A defensive publication is the act of publishing a detailed description of a new invention without patenting it, so as to establish prior art and public identification as the creator/originator of an invention, although a defensive publication can also be anonymous. A defensive publication prevents others from later being able to patent the invention.

A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by non-disclosure agreement and labour law, each of which prevents information leaks such as breaches of confidentiality and industrial espionage. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public, whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork; has an immediate effect; and does not require any disclosure of information to the public. The key disadvantage of a trade secret is its vulnerability to reverse engineering.

Benefits

Primary incentives embodied in the patent system include incentives to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to design around and improve upon earlier patents.

1. Patents provide incentives for economically efficient research and development (R&D). A study conducted annually by the Institute for Prospective Technological Studies (IPTS) shows that the 2,000 largest global companies invested more than 430 billion euros in 2008 in their R&D departments. If the investments can be considered as inputs of R&D, real products and patents are the outputs. Based on these groups, a project named Corporate Invention Board, had measured and analyzed the patent portfolios to produce an original picture of their technological profiles. Supporters of patents argue that without patent protection, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs. Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic ideas underlying traditional property rights. Specifically, "[t]he patent internalizes the externality by giving the [inventor] a property right over its invention." A 2008 study by Yi Quan of Kellogg School of Management showed that countries instituting patent protection on pharmaceuticals did not necessarily have an increase in domestic pharmaceutical innovation. Only countries with "higher levels of economic development, educational attainment, and economic freedom" showed an increase. There also appeared to be an optimal level of patent protection that increased domestic innovation.
2. In accordance with the original definition of the term "patent", patents are intended to facilitate and encourage disclosure of innovations into the public domain for the common good. Thus patenting can be viewed as contributing to open hardware after an embargo period (usually of 20 years). If inventors did not have the legal protection of patents, in many cases, they might prefer or tend to keep their inventions secret (e.g. keep trade secrets). Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's invention is not lost to humanity.
3. In many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering costs — computer processors, and pharmaceuticals for example), once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (For example, the internal rule of thumb at several computer companies in the 1980s was that post-R&D costs were 7-to-1.)

One effect of modern patent usage is that a small-time inventor, who can afford both the patenting process and the defense of the patent, can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital from licensing the invention and may allow innovation to occur because he or she may choose not to manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability.

Another effect of modern patent usage is to both enable and incentivize competitors to design around (or to "invent around" according to R S Praveen Raj) the patented invention. This may promote healthy competition among manufacturers, resulting in gradual improvements of the technology base. This may help augment national economies and confer better living standards to the citizens. The 1970 Indian Patent Act allowed the Indian pharmaceutical industry to develop local technological capabilities in this industry. This act coincided with the transformation of India from a bulk importer of pharmaceutical drugs to a leading exporter. The rapid evolution of Indian pharmaceutical industry since the mid-1970s highlights the fact that the design of the patent act was instrumental in building local capabilities even in a developing country like India. This was possible because for many years prior to its membership in the World Trade Organization (WTO), India did not recognize product patents for pharmaceuticals. Without product patents with which to contend, Indian pharmaceutical companies were able to churn out countless generic drugs, establishing India as one of the leading generic drug manufacturers in the world. Yet in 2005, because of its obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), India was compelled to amend its laws to provide product patent protection to pharmaceuticals. In an attempt to satisfy the competing demands for inexpensive drugs and effective intellectual property protection, the Indian government created a law that afforded protection to pharmaceuticals only if they constituted brand new chemical substances or enhanced the therapeutic “efficacy” of known substances. This law, which is codified under section 3(d) of the Patents (Amendment) Act of 2005,7 has not sat well with some MNCs, including the Swiss company Novartis. Following the denial of a patent for its leukemia drug, Glivec, Novartis challenged the validity of section 3(d) under TRIPS and the Indian Constitution. The Indian Supreme Court ruled against Novartis in a decision that has, and will continue to have, broad implications for MNCs, the Indian pharmaceutical industry, and people around the world in need of affordable drugs.

Criticism

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade. Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources (e.g. with patent-related overheads) that could otherwise be used productively to improve technology. These and other research findings that patents decreased innovation because of the following mechanisms:

• Low quality, already known or obvious patents hamper innovation and commercialization.
• Blocking the use of fundamental knowledge with patents creates a "tragedy of the anticommons, where future innovations can not take place outside of a single firm in an entire field.
• Patents weaken the public domain and innovation that comes from it.
• Patent thickets, or "an overlapping set of patent rights", in particular slow innovation.
• Broad patents prevent companies from commercializing products and hurt innovation. In the worst case, such broad patents are held by non-practicing entities (patent trolls), which do not contribute to innovation. Enforcement by patent trolls of poor quality patents  has led to criticism of the patent office as well as the system itself. For example, in 2011, United States business entities incurred $29 billion in direct costs because of patent trolls. Lawsuits brought by "patent assertion companies" made up 61% of all patent cases in 2012, according to the Santa Clara University School of Law.
• Patents apply a "one size fits all" model to industries with differing needs, that is especially unproductive for the software industry.
• Rent-seeking by owners of pharmaceutical patents have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people.

Boldrin and Levine conclude "Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it." Abolishing patents may be politically challenging in some countries, however, as the primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing; this reasoning is weakened if the new technologies decrease these costs. A 2016 paper argued for substantial weakening of patents because current technologies (e.g. 3D printing, cloud computing, synthetic biology, etc.) have reduced the cost of innovation.

Debates over the usefulness of patents for their primary objective are part of a larger discourse on intellectual property protection, which also reflects differing perspectives on copyright.

Anti-patent initiatives

• The Patent Busting Project is an Electronic Frontier Foundation (EFF) initiative challenging patents that the organization claims are illegitimate and suppress innovation or limit online expression. The initiative launched in 2004 and involves two phases: documenting the damage caused by these patents, and submitting challenges to the United States Patent and Trademark Office (USPTO).
• Patent critic, Joseph Stiglitz has proposed Prizes as an alternative to patents in order to further advance solutions to global problems such as AIDS.
• In 2012, Stack Exchange launched Ask Patents, a forum for crowdsourcing prior art to invalidate patents.
• Several authors have argued for developing defensive prior art to prevent patenting based on obviousness using lists  or algorithms.^[84] For example, a Professor of Law at the University of North Carolina School of Law, has demonstrated a method to protect DNA research., which could apply to other technology. Chin wrote an algorithm to generate 11 million "obvious" nucleotide sequences to count as prior art and his algorithmic approach has already proven effective at anticipating prior art against oligonucleotide composition claims filed since his publication of the list and has been cited by the U.S. patent office a number of times. More recently, Joshua Pearce developed an open-source algorithm for identifying prior art for 3D printing materials to make such materials obvious by patent standards. As the 3-D printing community is already grappling with legal issues, this development was hotly debated in the technical press. Chin made the same algorithem-based obvious argument in DNA probes.
• Google and other technology companies founded the LOT Network in 2014 to combat patent assertion entities by cross-licensing patents, thereby preventing legal action by such entities.

Dead zone (ecology)

From Wikipedia, the free encyclopedia

 

Red circles show the location and size of many dead zones.
Black dots show dead zones of unknown size.
The size and number of marine dead zones—areas where the deep water is so low in dissolved oxygen that sea creatures can't survive—have grown explosively in the past half-century. – NASA Earth Observatory (2008)

 

Dead zones are hypoxic (low-oxygen) areas in the world's oceans and large lakes, caused by "excessive nutrient pollution from human activities coupled with other factors that deplete the oxygen required to support most marine life in bottom and near-bottom water. (NOAA)". Historically, many of these sites were naturally occurring. However, in the 1970s, oceanographers began noting increased instances and expanses of dead zones. These occur near inhabited coastlines, where aquatic life is most concentrated. (The vast middle portions of the oceans, which naturally have little life, are not considered "dead zones".) 

Dead zones are bodies of water that do not have sufficient oxygen (3) levels in order to support most marine life. Dead zones are caused by oxygen-depleting factors which include, but are not limited to, human pollution (4). This is a process called eutrophication, where oxygen levels decrease as elements such nitrogen and phosphorus increase. A healthy river will have increased amounts of oxygen for consumption by organisms (1). As nitrogen increases, algae (5) produce large amounts of oxygen, but die from increased nitrogen. Decomposers then use all of the remaining oxygen decomposing the algae, resulting in no oxygen left and no oxygen being produced

 

In March 2004, when the recently established UN Environment Programme published its first Global Environment Outlook Year Book (GEO Year Book 2003), it reported 146 dead zones in the world's oceans where marine life could not be supported due to depleted oxygen levels. Some of these were as small as a square kilometre (0.4 mi²), but the largest dead zone covered 70,000 square kilometres (27,000 mi²). A 2008 study counted 405 dead zones worldwide.

Causes

Dead zones are often caused by the decay of algae during algal blooms, like this one off the coast of La Jolla, San Diego, California.

 

Climate has a significant impact on the growth and decline of ecological dead zones. During spring months, as rainfall increases, more nutrient-rich water flows down the mouth of the Mississippi River. At the same time, as sunlight increases during the spring, algal growth in the dead zones increases dramatically. In fall months, tropical storms begin to enter the Gulf of Mexico and break up the dead zones, and the cycle repeats again in the spring.

 

Aquatic and marine dead zones can be caused by an increase in nutrients (particularly nitrogen and phosphorus) in the water, known as eutrophication. These chemicals are the fundamental building blocks of single-celled, plant-like organisms that live in the water column, and whose growth is limited in part by the availability of these materials. Eutrophication can lead to rapid increases in the density of certain types of these phytoplankton, a phenomenon known as an algal bloom.

Limnologist Dr. David Schindler, whose research at the Experimental Lakes Area led to the banning of harmful phosphates in detergents, warned about algal blooms and dead zones,

"The fish-killing blooms that devastated the Great Lakes in the 1960s and 1970s haven't gone away; they've moved west into an arid world in which people, industry, and agriculture are increasingly taxing the quality of what little freshwater there is to be had here....This isn't just a prairie problem. Global expansion of dead zones caused by algal blooms is rising rapidly."

The major groups of algae are Cyanobacteria, green algae, Dinoflagellates, Coccolithophores and Diatom algae. Increase in input of nitrogen and phosphorus generally causes Cyanobacteria to bloom. Other algae are consumed and thus do not accumulate to the same extent as Cyanobacteria.^{[citation needed]} Cyanobacteria are not good food for zooplankton and fish and hence accumulate in water, die, and then decompose. The bacterial degradation of their biomass consumes the oxygen in the water, thereby creating the state of hypoxia. Dead zones can be caused by natural and by anthropogenic factors. Natural causes include coastal upwelling and changes in wind and water circulation patterns. Use of chemical fertilizers is considered the major human-related cause of dead zones around the world. Runoff from sewage, urban land use, and fertilizers can also contribute to eutrophication.

Notable dead zones in the United States include the northern Gulf of Mexico region, surrounding the outfall of the Mississippi River, the coastal regions of the Pacific Northwest, and the Elizabeth River in Virginia Beach, all of which have been shown to be recurring events over the last several years.

Additionally, natural oceanographic phenomena can cause deoxygenation of parts of the water column. For example, enclosed bodies of water, such as fjords or the Black Sea, have shallow sills at their entrances, causing water to be stagnant there for a long time. The eastern tropical Pacific Ocean and northern Indian Ocean have lowered oxygen concentrations which are thought to be in regions where there is minimal circulation to replace the oxygen that is consumed. These areas are also known as oxygen minimum zones (OMZ). In many cases, OMZs are permanent or semipermanent areas.

Remains of organisms found within sediment layers near the mouth of the Mississippi River indicate four hypoxic events before the advent of synthetic fertilizer. In these sediment layers, anoxia-tolerant species are the most prevalent remains found. The periods indicated by the sediment record correspond to historic records of high river flow recorded by instruments at Vicksburg, Mississippi.

Changes in ocean circulation triggered by ongoing climate change could also add or magnify other causes of oxygen reductions in the ocean.

In August 2017, a report suggested that the US meat industry and agroeconomic system are predominantly responsible for the largest-ever dead zone in the Gulf of Mexico. Soil runoff and leached nitrate, exacerbated by agricultural land management and tillage practices as well as manure and synthetic fertilizer usage, contaminated water from the Heartland to the Gulf of Mexico. A large portion of the crops grown in this region are used as major feed components in the production of meat animals for agribusiness companies, like Tyson and Smithfield Foods.

Types

Dead zones can be classified by type, and are identified by the length of their occurrence:

• Permanent dead zones are deep water occurrences that rarely exceed 2 milligrams per liter.
• Temporary dead zones are short lived dead zones lasting hours or days.
• Seasonal dead zones are annually occurring, typically in warm months
• Diel cycling hypoxia is a specific seasonal dead zone that only becomes hypoxic during the night

Effects

Underwater video frame of the sea floor in the western Baltic covered with dead or dying crabs, fish and clams killed by oxygen depletion

 

Low oxygen levels recorded along the Gulf Coast of North America have led to reproductive problems in fish involving decreased size of reproductive organs, low egg counts and lack of spawning. 

In a study of the Gulf killifish by the Southeastern Louisiana University done in three bays along the Gulf Coast, fish living in bays where the oxygen levels in the water dropped to 1 to 2 parts per million (ppm) for three or more hours per day were found to have smaller reproductive organs. The male gonads were 34% to 50% as large as males of similar size in bays where the oxygen levels were normal (6 to 8 ppm). Females were found to have ovaries that were half as large as those in normal oxygen levels. The number of eggs in females living in hypoxic waters were only one-seventh the number of eggs in fish living in normal oxygen levels.

Fish raised in laboratory-created hypoxic conditions showed extremely low sex hormone concentrations and increased elevation of activity in two genes triggered by the hypoxia-inductile factor (HIF) protein. Under hypoxic conditions, HIF pairs with another protein, ARNT. The two then bind to DNA in cells, activating genes in those plant cells.

Under normal oxygen conditions, ARNT combines with estrogen to activate genes. Hypoxic cells in vitro did not react to estrogen placed in the tube. HIF appears to render ARNT unavailable to interact with estrogen, providing a mechanism by which hypoxic conditions alter reproduction in fish.

It might be expected that fish would flee the potential suffocation, but they are often quickly rendered unconscious and doomed. Slow moving bottom-dwelling creatures like clams, lobsters and oysters are unable to escape. All colonial animals are extinguished. The normal re-mineralization and recycling that occurs among benthic life-forms is stifled.

Despite most other life forms being killed by the lack of oxygen, jellyfish can thrive and are sometimes present in dead zones in vast numbers. These jellyfish blooms produce mucus and waste, leading to major changes in food webs in the ocean. The organic carbon is metabolised by bacteria which return it to the atmosphere in the form of carbon dioxide in what has been termed a "jelly carbon shunt".

It has been shown that future changes in oxygen could affect most marine ecosystems and have socio-economic ramifications due to human dependency on marine goods and services.

Locations

Dead zone in the Gulf of Mexico

 

In the 1970s, marine dead zones were first noted in settled areas where intensive economic use stimulated scientific scrutiny: in the U.S. East Coast's Chesapeake Bay, in Scandinavia's strait called the Kattegat, which is the mouth of the Baltic Sea and in other important Baltic Sea fishing grounds, in the Black Sea, and in the northern Adriatic.

Other marine dead zones have appeared in coastal waters of South America, China, Japan, and New Zealand. A 2008 study counted 405 dead zones worldwide.

Baltic Sea

Researchers from Baltic Nest Institute published in one of PNAS issues reports that the dead zones in the Baltic Sea have grown from approximately 5,000 km2 to more than 60,000 km2 in recent years.

Some of the causes behind the elevated increase of dead zones can be attributed to the use of fertilizers, large animal farms, the burning of fossil fuels, and effluents from municipal wastewater treatment plants.

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Chesapeake Bay

As reported by the National Geographic "The Chesapeake Bay, on the East Coast of the United States, has one of the first dead zones ever identified, in the 1970s. The Chesapeake’s high levels of nitrogen are caused by two factors: urbanization and agriculture. The western part of the bay is full of factories and urban centers that emit nitrogen into the air. Atmospheric nitrogen accounts for about a third of the nitrogen that enters the bay. The eastern part of the bay is a center of poultry farming, which produces large amounts of manure."

The National Geographic further stated stated "Since 1967, the Chesapeake Bay Foundation has led a number of programs that aim to improve the bay’s water quality and curb pollution runoff. The Chesapeake still has a dead zone, whose size varies with the season and weather."

Elizabeth River, Virginia

The Elizabeth River estuary is important for Norfolk, Virginia, Chesapeake, Virginia, Virginia Beach, Virginia and Portsmouth, Virginia. It has been polluted by nitrogen and phosphorus, but also toxic deposits from the shipbuilding industry, the military, the world's largest coal export facility, refineries, loading docks, container-repair facilities and others, so fish had been "offlimits since the 1920s". In 1993, a group formed to clean it up, adopting the mummichog as a mascot, and has removed thousands of tons of contaminated sediment. In 2006, a 35-acre biological dead zone called Money Point was dredged out, and this let fish return, and the wetland recover.

Lake Erie

A dead zone exists in the central part of Lake Erie from east of Point Pelee to Long Point and stretches to shores in Canada and the United States. The zone has been noticed since the 1950s to 1960s, but efforts since the 1970s have been made by Canada and the US to reduce runoff pollution into the lake as means to reverse the dead zone growth. Overall the lake's oxygen level is poor with only a small area to the east of Long Point that has better levels. The biggest impact of the poor oxygen levels is to lacustrine life and fisheries industry.

Lower St. Lawrence Estuary

A dead zone exists in the Lower St. Lawrence River area from east the Saguenay River to east of Baie Comeau, greatest at depths over 275 metres (902 ft) and noticed since the 1930s. The main concerns for Canadian scientists is the impact of fish found in the area.

Oregon

Off the coast of Cape Perpetua, Oregon, there is also a dead zone with a 2006 reported size of 300 square miles (780 km²).^{[citation needed]} This dead zone only exists during the summer, perhaps due to wind patterns. The Oregon coast has also seen hypoxic water transporting itself from the continental shelf to the coastal embayments. This has seemed to cause intensity in several areas of Oregon's climate such as upwelled water containing oxygen concentration and upwelled winds.

Gulf of Mexico 'dead zone'

The area of temporary hypoxic bottom water that occurs most summers off the coast of Louisiana in the Gulf of Mexico is the largest recurring hypoxic zone in the United States. The Mississippi River, which is the drainage area for 41% of the continental United States, dumps high-nutrient runoff such as nitrogen and phosphorus into the Gulf of Mexico. According to a 2009 fact sheet created by NOAA, "seventy percent of nutrient loads that cause hypoxia are a result of this vast drainage basin". which includes the heart of U.S. agribusiness, the Midwest. The discharge of treated sewage from urban areas (pop. c 12 million in 2009) combined with agricultural runoff deliver c. 1.7 million tons of phosphorus and nitrogen into the Gulf of Mexico every year. Even though Iowa occupies less than 5% of the Mississippi River drainage basin, average annual nitrate discharge from surface water in Iowa is about 204,000 to 222,000 metric tonnes, or 25% of all the nitrate which the Mississippi River delivers to the Gulf of Mexico. Export from the Raccoon River Watershed is among the highest in the United States with annual yields at 26.1 kg/ha/year which ranked as the highest loss of nitrate out of 42 Mississippi subwatersheds evaluated for a Gulf of Mexico hypoxia report. In 2012, Iowa introduced the Iowa Nutrient Reduction Strategy which, "The Iowa Nutrient Reduction Strategy is a science and technology-based framework to assess and reduce nutrients to Iowa waters and the Gulf of Mexico. It is designed to direct efforts to reduce nutrients in surface water from both point and nonpoint sources in a scientific, reasonable and cost effective manner." The strategy continues to evolve, using voluntary methods to reduce Iowa's negative contributions through outreach, research, and implementation of nutrient holding practices. In order to help reduce agricultural runoff into the Mississippi Basin, Minnesota passed MN Statute 103F.48 in 2015, also known as the "Buffer Law", which was designed to implement mandatory riparian buffers between farmland and public waterways across the State of Minnesota. The Minnesota Board of Water and Soil Resources (BWSR) issued a January 2019 report stating that compliance with the 'Buffer Law' has reached 99%.

Size

The area of hypoxic bottom water that occurs for several weeks each summer in the Gulf of Mexico has been mapped most years from 1985 through 2017. The size varies annually from a record high in 2017 when it encompassed more than 22,730 sq kilometers (8,776 square miles) to a record low in 1988 of 39 sq kilometers (15 square miles). The 2015 dead zone measured 16,760 square kilometers (6,474 square miles). Nancy Rabalais of the Louisiana Universities Marine Consortium in Cocodrie, Louisiana predicted the dead zone or hypoxic zone in 2012 will cover an area of 17,353 sq kilometers (6,700 square miles) which is larger than Connecticut; however, when the measurements were completed, the area of hypoxic bottom water in 2012 only totaled 7,480 sq kilometers. The models using the nitrogen flux from the Mississippi River to predict the "dead zone" areas have been criticized for being systematically high from 2006 to 2014, having predicted record areas in 2007, 2008, 2009, 2011, and 2013 that were never realized.

In late summer 1988 the dead zone disappeared as the great drought caused the flow of Mississippi to fall to its lowest level since 1933. During times of heavy flooding in the Mississippi River Basin, as in 1993, ""the "dead zone" dramatically increased in size, approximately 5,000 km (3,107 mi) larger than the previous year".

Economic impact

Some assert that the dead zone threatens lucrative commercial and recreational fisheries in the Gulf of Mexico. "In 2009, the dockside value of commercial fisheries in the Gulf was $629 million. Nearly three million recreational fishers further contributed about $10 billion to the Gulf economy, taking 22 million fishing trips." Scientists are not in universal agreement that nutrient loading has a negative impact on fisheries. Grimes makes a case that nutrient loading enhances the fisheries in the Gulf of Mexico. Courtney et al. hypothesize, that nutrient loading may have contributed to the increases in red snapper in the northern and western Gulf of Mexico.

History

Shrimp trawlers first reported a 'dead zone' in the Gulf of Mexico in 1950, but it was not until 1970 when the size of the hypoxic zone had increased that scientists began to investigate.

After 1950, the conversion of forests and wetlands for agricultural and urban developments accelerated. "Missouri River Basin has had hundreds of thousands of acres of forests and wetlands (66,000,000 acres) replaced with agriculture activity [. . .] In the Lower Mississippi one-third of the valley's forests were converted to agriculture between 1950 and 1976." 

In July 2007, a dead zone was discovered off the coast of Texas where the Brazos River empties into the Gulf.

Energy Independence and Security Act of 2007

The Energy Independence and Security Act of 2007 calls for the production of 36 billion US gallons (140,000,000 m³) of renewable fuels by 2022, including 15 billion US gallons (57,000,000 m³) of corn-based ethanol, a tripling of current production that would require a similar increase in corn production. Unfortunately, the plan poses a new problem; the increase in demand for corn production results in a proportional increase in nitrogen runoff. Although nitrogen, which makes up 78% of the Earth's atmosphere, is an inert gas, it has more reactive forms, two of which (nitrate and ammonia) are used to make fertilizer.

According to Fred Below, a professor of crop physiology at the University of Illinois at Urbana-Champaign, corn requires more nitrogen-based fertilizer because it produces a higher grain per unit area than other crops and, unlike other crops, corn is completely dependent on available nitrogen in soil. The results, reported 18 March 2008 in Proceedings of the National Academy of Sciences, showed that scaling up corn production to meet the 15-billion-US-gallon (57,000,000 m³) goal would increase nitrogen loading in the Dead Zone by 10–18%. This would boost nitrogen levels to twice the level recommended by the Mississippi Basin/Gulf of Mexico Water Nutrient Task Force (Mississippi River Watershed Conservation Programs), a coalition of federal, state, and tribal agencies that have monitored the dead zone since 1997. The task force says a 30% reduction of nitrogen runoff is needed if the dead zone is to shrink.

Reversal

Dead zones are reversible, though the extinction of organisms that are lost due to its appearance is not. The Black Sea dead zone, previously the largest in the world, largely disappeared between 1991 and 2001 after fertilizers became too costly to use following the collapse of the Soviet Union and the demise of centrally planned economies in Eastern and Central Europe. Fishing has again become a major economic activity in the region.

While the Black Sea "cleanup" was largely unintentional and involved a drop in hard-to-control fertilizer usage, the U.N. has advocated other cleanups by reducing large industrial emissions. From 1985 to 2000, the North Sea dead zone had nitrogen reduced by 37% when policy efforts by countries on the Rhine River reduced sewage and industrial emissions of nitrogen into the water. Other cleanups have taken place along the Hudson River and San Francisco Bay.