Patent Expert Issues: Nanotechnology

Among the emerging technologies, nanotechnology raises particularly high expectations in a wide range of areas affecting daily life. Nanotechnology is a science, which operates at an extremely small scale: between 1 and 100 nanometers (1 to 100 billionths of a meter). To put it into perspective, that’s smaller than a bacterium and close to the size of a single atom. At this scale interesting and potentially promising phenomena such as statistical and quantum mechanical effects become evident. Therefore, it is easy to see how manipulating matter at the atomic level could potentially lead to enormous developments.

While the commercialization of nanotechnology products has, so far, been relatively modest, recent and current research activities demonstrate extraordinary promise. For example, in the area of health we can envisage achievements such as diagnostic tools penetrating (and perhaps remaining inside of) cells, or therapeutic micro-tools directly treating ill cells from the inside.

The extremely small electronic components that can be produced using nanotechnology allow miniaturized and much more powerful electronic devices to be developed. Not only that, but new materials that are more robust, lighter and thinner than existing ones, could be created. Such developments may be of great interest in the fields of aircraft and space technology, of construction or even of clothing.

In terms of protecting the environment and safeguarding energy, micro-materials and elements may allow a much more efficient and powerful use of alternative energy sources, such as the development of new solar energy panels. While inventions in the field of nanotechnology would, as a general rule, appear to qualify for patent protection, subject to the fulfillment of the relevant conditions of patentability, there are a number of issues that may require further consideration, including for example the following:

  • One issue, which is, to a certain extent, shared with a number of other emerging technologies is that the granted claims are overly broad, due at least in part to a lack of available “prior art”, which could allow patent holders to lock up huge areas of technology. In this context, there is also a perceived risk of overlapping patents.
  • Concerning the general conditions of patentability, the question may arise as to whether the reproduction of a known product or structure at an atomic scale would meet the requirements of novelty or, more importantly, inventive step.
  • There is a question as to whether the rights of a patent holder, whose patent was granted for a product invention without specification of the size of the invention could either be considered infringed by the corresponding nanotechnology version of the invention or form the basis for requesting royalties from the inventor of the nanotechnology.

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