The nanotechnology patent thicket

This week’s Nature had a comment by Joshua M. Pearce on the patent situation in nanotechnology, with a lot of details on carbon nanotubes specifically that I wasn’t aware of before. Although the full article is behind a paywall, here are some of the highlights:

Broad patents covering the ‘building blocks’ of nanotechnology — such as quantum dots, nanowires and fullerenes, carbon nanotubes and methods for making them — hamper conscientious innovators, who must spend time and money to acquire all the necessary licences to avoid lawsuits [Heller, M. A. & Eisenberg, R. S. Science 280, 698–701 (1998)].

Examples of patents that cover basic components include one owned by the multinational chip manufacturer Intel, which covers a method for making almost any nanostructure with a diameter less than 50 nm; another, held by nanotechnology company NanoSys of Palo Alto, California, covers composites consisting of a matrix and any form of nanostructure. And Rice University in Houston, Texas, has a patent covering “composition of matter comprising at least about 99% by weight of fullerene nanotubes”.

An evaluation of the carbon-nanotube patent thicket in 2006 found that of 446 carbon-nanotube patents issued in the United States, in which 8,557 claims were made, 420 of those claims were of a building-block type [Harris, D. L. in Nanotechnology & Society (eds Allhoff, F. & Lin, P.) 163–184 (Springer,2009)]. Imagine how equivalent patenting of the idea of a semiconductor or basic programming would have stifled electronics and computing.

The situation does sound very bad, and in no way conductive to quick progress to market. A three-step solution is proposed:

Stopping patents on basic nanotechnology will create much more innovation than there is now. Three steps are needed. First, the NSF and funding agencies in other countries must insist that the taxpaying public pays only once. Published results from all publicly funded nanotechnology research should be made freely available on the Internet, following established open-access protocols and using databases such as arXiv.

Second, all publicly funded ideas and innovations in the nanotechnology sector should not be patented; instead, they should stay in the public domain. These ideas could be deposited in journals or on sites such as nanoHUB.

Third, the USPTO should issue a moratorium on patenting nanotechnology-related fundamental science, materials and concepts. Simply identifying a new behaviour of a material at the nanoscale should not be enough to claim a patent that stops others from working with that material. The current US patent law must be enforced much more strictly.

The open access mandate is easy to agree with, and developments along those lines already look promising. The second proposal is very radical, and I’m skeptical of its chances based on the mess the – in principle more clear-cut – software patent field is in the US. But not only should the third one be a no-brainer,  any researcher even considering patenting something like this should take a deep pause and reconsider.

If you do have access, the full article is well worth a read.

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