Stanford University law professor Mark Lemley asserts that nanotechnology “is the first new field in a century in which people started patenting the basic ideas at the outset.” In contrast to most other major enabling technologies of the 20th century (such as computer hardware, software, the Internet, and even biotechnology), writes Lemley, the most basic ideas and fundamental building blocks in nanotechnology “are either already patented or may well end up being patented.” ETC Group does not share Lemley’s view that biotech’s fundamental enabling tools were not patented early on - but we do share his view that nanotechnology’s most basic ideas and building blocks are being patented early and often.
The Three Types of Patenting Areas for Nanotechnologies
In the nanotech arena, it’s not just the opportunity to patent the most basic enabling tools, but the ability to patent the nanomaterials themselves, the products they are used in and the methods of making them. At the US Patent & Trademark Office, there are three primary types of patent claims:
1. Composition of matter claims (that is, nanomaterials such as nanotubes, nanowires and nanoparticles);
2. Device, apparatus or system claims (including, for example, tools used to characterize and control nanomaterials - or devices incorporating nanomaterials);
3. Method claims (processes for synthesizing nanomaterials or constructing nano-scale devices).
The Attraction of Patenting Emerging Nanotechnologies Early and Often
The CEO of Nanosys, Inc., Larry Bock, explains the once-in-a-lifetime attraction of being able to get in on the ground floor by consolidating fundamental nanotech patents: “One of the key things that got me excited about this whole area three years ago is that from an IP standpoint you could control IP from things like composition of matter to the simplest functional devices to the end application all under one IP portfolio. That doesn’t come around very often in one’s career.”
What is the Difference Between Nanotechnology Patenting and Biotechnology Patenting?
Nanomaterials are chemical elements or compounds less than 100 nm in size. Taking advantage of quantum physics, nanotech companies are engineering novel materials that may have entirely new properties never before identified in nature. The “raw materials” for creating nanomaterials and devices are the chemical elements of the Periodic Table - the building blocks of everything - both living and non-living. Whereas biotechnology patents make claims on biological products and processes - nanotechnology patents may literally stake claim to chemical elements, as well as the compounds and the devices that incorporate them. With nano-scale technologies the issue is not just patents on life – but on all of nature. In short, atomic-level manufacturing provides new opportunities for sweeping monopoly control over both animate and inanimate matter. In essence, patenting at the nano-scale could mean monopolizing the basic elements that make life possible.
Note: A complete set of references can be found by referring to the original document.