Nanotechnology and IPR: A Need for Comprehensive Protection

Nanotechnology promises to be the key transformative technology of the present era. It offers to revolutionize a wide range of industrial segment through its novel innovations like storing hydrogen gas safely at high densities and a nanostructured gel that encourages new cells to grow. It offers solutions in large number of areas that are highly technological (such as computer chips, fuel cells, etc.) as well as those of developmental concerns like environment, water purification, agriculture, energy, etc. This promise has led many advanced as well as emerging economies to invest huge amount of resources for creating research and innovation capacity in this new technology. Developing countries further hope that it will help them leapfrog in science and technology domains.

What is ‘Nanotechnology’?

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The nanoscale is the intermediary between the atom and the solid1. Nanotechnology refers to a range of technologies that operates at the nano-scale (roughly 1-100 nanometers, one nanometer is 10-9 meter) and includes use of techniques to understand phenomena in the said physical range. Size is just a convenient way to define this technological area. But actually it has more to do with the behavior and properties of materials existing at nano-scale. Novel properties of the same material manifest themselves at this size scale. For example, bulk silver is non-toxic, whereas silver nanoparticles are capable of killing viruses upon contact2. Nanomaterials do experience change in properties like electrical conductivity, colour, surface and volume relationships.

New developments in science and technology has led scientists to study the structures and properties of molecules at nano levels. They have learnt to manipulate them and build more and more complex structures. A substantial number of new materials with nano elements such as ceramics, glass, polymers and fibers are making their way into the market and are present in all shapes and forms in everyday life.

There have been two ways devised to apply nanotechnology:

(a)        Top-Down Approach, where larger structures are divided continuously to reach nano-levels;

(b)        Bottom-Up Approach, where atoms or molecules are selected and placed one by one to build larger structures. The process of miniaturisation makes it possible to work on and manufacture ever smaller objects.

Why ‘Nanotechnology’ is important?

Recent studies show that commercialisation of nanotechnology products are just moderate and are lagging behind from the expected and predicted levels3. Even then, the research activities predict exponential rise and appreciable results in the forthcoming period4. For example, the developments of targeted drugs that can kill targets inside the cells are being experimented and developed5, miniaturised electronic components have enabled the development of extremely powerful electronic hardware systems, atomically precise manufacture to reduce energy consumption, and devices to collect energy directly from the Sun being explored6. It has huge impact on life of people due to its applications in varied domains and in developmental concerns. For example, various research laboratories including those in India (like ARCI Centre for Nanomaterials) are working on the properties of silver nanoparticles for drinking water disinfection. Similarly, it also finds its applications in the fields of agriculture and food with, inter alia, materials able to release pesticides at a targeted location on a specific time or condition, or some nanomaterials capable of reducing damage to other plant tissues and the amount of chemicals released into the environment.

Applications of ‘Nanotechnology’

There are wide spectrum of applications of Nanotechnology inventions, however we are discussing the contributions in the field of electronics, medicines and energy in this article.



Why are intellectual property laws important for the protection of Nanotechnologies?

Nanotechnology is an emerging area. A lot of work is going on around the world in this promising field of research which is increasing exponentially. Development of new technologies brings with itself many new waves, new opportunities, and new complications as well. One of those complications is the protection of scientific developments occurring day by day. The contribution of IPR framework in this field can be observed in different contexts including networking of the organisations, trust building, improvement in scientific infrastructure, and development of standards development.

According to a recent report20, the global nanotechnology market is expected to exceed US$ 125 billion by 2024. This remarkable development has been possible due to many factors such as acquiring significant amounts of investments in R&D, partnerships & strategic alliances between firms and organisations in various countries. In the U.S., the 2018 Federal Budget provided $1.2 billion for the National Nanotechnology Initiative (NNI). The budget supports investments in basic research, early-stage applied research, and technology transfer efforts that will lead to the breakthroughs of the future. In India, in the Twelfth Five Year Plan (2012-2017), the government gave its approval for continuation of the ‘Nano Mission’ with a budget of Rs. 650 crore. With such high stakes being invested in a field, it is imperative to look at IPR issues related to the same.

New technologies bring new generation of intellectual property issues and demand entirely new set of protection mechanisms. Tailoring intellectual property laws according to the demands of a field is very important to provide it a balanced and optimum protection. If the protection is narrow, it will hamper the development of the field due to reduced incentives to the researchers and investors and wider protection will again hamper the development of the field due to reduction in the white space available for further innovation. It is not easy to develop and implement regimes for fields of multidisciplinary nature without ambiguity. The issues in case of nanotechnologies are broadly due to (but not limited to):

  1. Multidisciplinary nature of the field
  2. Non availability of expert examiners in the IP offices
  3. Non-adaptability and obsoleteness of the existing patent laws
  4. Protection/patenting of fundamental or basic inventions
  5. Difficulty in classification of NT inventions

At present, the Indian laws have no provision in the form of guidelines or regulations specifically relating to the field of nanotechnology. With ‘patent’ being the most prominent form, nanotechnology encounters challenges with respect to the criteria of novelty, inventive step, and eligibility of subject matter. Therefore, a sound intellectual property management strategy is needed to systematically promote innovation and development in the field, also to allow the investors to build their IP portfolios protecting various aspects of their technologies and interests. The intellectual property issues outlined above will be discussed at length in our next part of the series relating to nanotechnology.



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